Director of Public Prosecutions (Cth) v Chen
[2022] VCC 1860
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01061
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIN-YANG CHEN |
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JUDGE: | HIS HONOUR JUDGE GAMBLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 September 2022 |
DATE OF SENTENCE: | 28 October 2022 |
CASE MAY BE CITED AS: | DPP (Cth) v Chen |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1860 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW – Sentence. |
Catchwords: | Import tobacco products reckless as to defrauding of the revenue – Possess and convey tobacco products reckless as to defrauding of the revenue – Guilty plea – No criminal history – COVID-19 pandemic considerations. |
Legislation Cited: | Customs Act 1901 (Cth), s 233BABAD(2A), s 233BABAD (2B); Crimes Act 1914 (Cth), s 16A(2), s 17A; Sentencing Act 1991 (Vic), s 6AAA. |
Sentence: | Sentence of 26 months’ imprisonment with release after serving 18 months upon entering into a recognisance release order in the sum of $1000 to be of good behaviour for 26 months. |
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APPEARANCES: | Counsel | Solicitors |
For the DPP (Cth) | Ms D. Karamicov (Plea) Ms E. McDonald (Sentence) | Office of Public Prosecutions (Cth) |
For the Accused | Mr P. Bloemen (Plea) Mr T. Acutt (Sentence) | David Barrese & Associates |
HIS HONOUR:
Introduction
1Min-Yang Chen, you have pleaded guilty to an indictment containing two Commonwealth charges. Charge 1 (as amended) alleges that between 28 April and 5 May 2021, you imported goods, namely tobacco products, reckless as to whether there would be defrauding of the revenue. Charge 2 alleges that between 5 and 14 July 2021, you possessed and conveyed imported goods, namely tobacco products, reckless as to whether the revenue was defrauded. Charge 1 was laid pursuant to s.233BABAD (2A) of the Customs Act 1901 (Cth), and carries a maximum penalty of 5 years’ imprisonment and/or a fine of $5,959,440.00. Charge 2 was laid pursuant to s.233BABAD (2B) of the Customs Act 1901 (Cth), and carries a maximum penalty of 5 years’ imprisonment and/or a fine of $2,545,302.90.[1]
[1] I note that the duty rate for tobacco products is indexed biannually and the applicable rate is based on the time the goods are imported into Australia. For current sentencing purposes, the applicable duty rates are as set out in paragraph 2 of the prosecution opening.
2The circumstances in which those offences were committed are set out in the amended typed prosecution opening dated 31 August 2022 and were discussed during the course of the plea.[2] I have had regard to that opening and those discussions when determining the appropriate penalty in this case. You were 31 years of age at the time of your offending and turned 33 very recently.[3]
Background
[2] A copy was tendered as exhibit A on the plea.
[3] The accused was born in October 1989.
3Mr Chen, I note that you arrived in this country on 11 April 2017 after having been granted a temporary working holiday visa of 12 months duration, which could be extended if certain criteria were met. On 24 March 2019, you made an application for a permanent visa which was ultimately refused. However, you were granted a bridging visa pending the determination of a merits review by the Administrative Appeals Tribunal.
4The investigation of this matter culminated with the Australian Border Force (‘the ABF’) executing a number of warrants under the Customs Act 1901 (Cth). As a result, on 14 July 2021, the home in which you lived and two storage units you leased were searched. You were arrested, charged and remanded in custody on that date and have remained in custody in relation to this matter ever since.
5I will now briefly summarise the circumstances of your offending.
Charge 1
6On 6 April 2021, you attended at Kennards Self-Storage in Truganina and leased storage unit C30 after having provided your correct personal details, including your name, address, date of birth, phone number, email address and driver’s licence number.
7On 27 April 2021, shipping container TGBU6367200 arrived in Melbourne from China. It contained a consignment with House Bill of Lading 27171956 (‘Consignment 1’).
8On 28 April 2021, you attended at Storage King in Truganina and leased storage unit 1018 after providing the same personal details, save for a different phone number.
9On 4 May 2021, the ABF examined consignment 1 and found 1,080,000 sticks of ‘Marlboro Red’ brand cigarettes concealed within plywood wooden boxes. On the following day, they seized those cigarettes and returned the plywood boxes to the licensed depot, CITO, for collection.
10On 7 May 2021, you conversed with an unknown person (‘UKP’) via the WeChat messaging facility as follows:
UKP:1000 white Marlboro will be delivered to Ricky’s warehouse there at 3.30. Remaining red Marlboro will be taken to pack and send transfer site Monday morning.
Chen:Address?
UKP:[an image of a business card for Kennards Self-Storage Abbotsford].
Handed over?
Chen:Mm.
11On the evening of 10 May 2021, you engaged the services of the removalist company “Move2Move” to collect consignment 1 from CITO transport on 11 May and deliver it to Storage King. Via WeChat, you sent the removalist company a copy of the outturn report for the consignment and two delivery orders. You paid that company a deposit of $229.50 via a direct credit transfer from your bank account.
12On the morning of 11 May 2021, you drove to the Kennards facility in a Budget rental truck that you had earlier leased.[4] The CCTV cameras at that location captured you accessing storage unit C30 for a short period while there. You then drove to the Storage King facility in the same vehicle, arriving just before 9.00am. You made a number of attempts to contact the driver from Move2Move between 8.54am and 9.40am that morning but your calls went unanswered. You then drove the truck to the “Pack and Send” facility in Preston.
[4] Bearing registration plates 1NW7WF.
13As contracted, Move2Move collected consignment 1 from CITO transport on the morning of 11 May 2021 and attempted to deliver the package to Storage King in Truganina. But when the delivery driver could not contact you, he returned the package to the Move2Move facility.
14The prosecution case is that your conduct in leasing the storage unit from Storage King was incidental to the tobacco goods being brought into Australia and that as a result, you played a part in the importation of the tobacco relevant to this charge.[5] I note also that you admit as much by your plea to this charge.
[5] In this regard, the prosecution rely on the decision in Calderwood v The Queen (2007) 172 A Crim R 208, [12].
15Based on the duty evaded plus the 10% GST payable on that duty, the total revenue defrauded was $1,311,076.80.
Charge 2
16On 24 May 2021, you made a $39,000 cash purchase of a Mitsubishi truck which you registered in your name and address.[6]
[6] White in colour and registered 1GA4BU.
17On 29 June 2021, a shipping container containing a package with a House Bill of Lading TTWGZ2105281 (‘consignment 2’) arrived in Melbourne. In due course, it was moved to CITO transport and made available for collection.
18On 5 July 2021, Consol Alliance issued a sea freight delivery order via email advising that the consignment was available for collection from CITO transport. In the early afternoon of that day, you and another man (who has never been charged) travelled to the CITO facility in the Mitsubishi truck and collected the consignment which consisted of flat boxes of an equivalent length to a standard pallet and which had readily visible shipping labels attached.
19You then travelled to the storage unit at Kennards where you spent approximately half an hour unloading the consignment into storage unit C30.
20The following day, you drove your Camry vehicle to Kennards where you again accessed storage unit C30. In total, you spent just over 2 ½ hours inside the storage unit on that occasion.
21On 10 July 2021, you returned there in the Mitsubishi truck with the same man that you had been with when you had collected consignment 2. On this occasion, you removed several boxes from storage unit C30 which bore a similar appearance to those within consignment 2. By this time, however, the shipping labels had been removed.
22A similar event occurred on each of 12 and 14 July 2021. On each occasion, you and that other man transferred boxes from the Kennards storage unit into the Mitsubishi truck. On the first of those occasions, there were several boxes, while on the second, there were 47 boxes.
Investigation
23On 14 July 2021, ABF investigators searched Kennards storage unit C30 and located 47 plywood boxes containing Marlboro Gold brand cigarettes and numerous removed shipping labels marked “Vichome 106 CTNS”.
24The 47 boxes were seized and found to contain 507,400 sticks of Marlboro Gold brand cigarettes. Those boxes were similar in appearance and construction to those used in consignment 1.
25The prosecution case is that you had custody and control of storage unit C30 at Kennards to the exclusion of all others and possession of the cigarettes located in that storage unit.
26Based on the duty evaded plus the 10% GST payable on that duty, the total revenue defrauded was $559, 966.64.
27Investigators also located a number of relevant items when they searched your home under warrant. It included keys to the Kennards storage facility, paperwork for the lease of the Kennards storage unit C30, a carton containing 7 packets of Marlboro Red cigarettes with packaging that was non-compliant with the relevant legislation as to plain packaging requirements and a bag containing $50,000 in cash.
28When investigators subsequently analysed your mobile phone, they discovered a number of incriminating WeChat conversations which had taken place on 9, 17, 23, 27 and 28 April and 5 and 6 May in 2021. The relevant details of those conversations are set out in paragraphs 32 and 33 of the prosecution opening and need not be repeated now. Suffice to say, I have had regard to them.
Record of interview
29You were arrested and interviewed on the date of those searches, namely 14 July 2021.
30During the course of that interview, you told investigators the following, inter alia:
·You owned the Mitsubishi truck and were the only person who drove it;
·You used the truck to pick up deliveries, although you did not know what was contained in those deliveries;
·You had attended CITO transport to collect consignments and delivered them to Storage King;
·On the last two occasions you had unpacked deliveries and found them to contain tobacco or cigarettes. You had asked your boss if that was ok and he had said it was, so you continued with the deliveries;
·After initially denying being involved with a delivery on 11 May 2021, you admitted involvement after being shown the relevant CCTV footage from Storage King. You explained your first answer as a genuine mistake made due to having a poor memory;
·You denied being involved in the importation of consignment 1 but admitted to having arranged for the collection of that consignment after being requested to do so by your boss, although you claimed to be unaware of the delivery address;
·The money located at your home by investigators was your accrued savings; and
·You had worked as a plasterer in Sydney earning $400 per day cash in hand but had not been able to find a job since you travelled to Melbourne.
Pre-sentence detention
31After the interview, you were charged and then remanded in custody where you have remained ever since. Accordingly, the relevant period of pre-sentence detention to be declared in respect of the sentence that you will receive for these offences is 471 days, not including today’s date.[7]
Pleas of guilty
[7] Calculated by reference to the period between 14 July 2021 and 27 October 2022.
32I note that this matter resolved at an early stage on 16 June 2022, the date on which the contested committal hearing was listed to commence.
33By pleading as and when you did, Mr Chen, you are entitled to a significant discount in your sentence. The course that you have opted to take has saved the community from the cost and time of a trial and facilitated the course of justice. I am also prepared to accept that it provides some evidence of remorse on your part.
Personal circumstances
34I turn now to consider your personal circumstances, Mr Chen. They have been helpfully outlined in your counsel’s written submissions, to which I have had regard.[8]
[8] Dated 26 September 2022 and tendered as exhibit 1 on the plea.
35You were born and raised in the coastal/port city of Keelung in Taiwan, where your parents and siblings remain. You are the oldest of four children in your family. Your three siblings also live in Taiwan. You grew up in a loving middle lower class family in which the values of a strong work ethic and supporting the family were instilled in all of the children from a young age.
36Although you completed High School, you were not a good student. Thereafter, you completed a two-year associated degree in interior design. The classes were held at night which allowed you to engage in part-time employment in the construction industry during the day. You worked for the same plumbing company for about 8 years before working for a further two years at an engineering company.
37You travelled to Australia in 2017 along with two class mates from Taiwan. Your girlfriend, who you later married, followed later but she returned to Taiwan to be with her family when 7 months pregnant due to the COVID-19 pandemic.
38After travelling here on a work and holiday visa, you settled in Sydney where you gained casual work as a labourer in the construction industry. You sent part of your earnings to your wife and her family to support them and your young child.
39You travelled to Melbourne about 3-4 months before your arrest, so in March/April of 2021 or thereabouts. You then managed to gain casual work as a removalist. You have instructed your counsel that it was in that context that you purchased the Mitsubishi truck.
40You appear to be in good health but for a back complaint which causes stiffness and pain and a problematic pelvis which you had previously dislocated and which continues to affect your mobility. You take Panadol medication.
41You have never used drugs and do not abuse alcohol.
42You have been at Fulham Prison for almost the entire period while you have been on remand. Apart from the difficulties caused by the language barrier and your previous inexperience of such a custodial environment, you were subjected to a 14 day quarantine isolation as well as a number of COVID-19 related lockdowns.
43You have been able to have phone contact with your wife on a thrice weekly basis and via a video call on a weekly basis, subject to any lockdowns or other restrictions imposed by the custodial authorities.
44It would appear that you have done your best to make the most of your time in custody. You have regularly undertaken work as a cleaner and as a gardener. You have also undertaken a number of courses, not all of which could be completed due to COVID-19 complications or language difficulties.[9]
[9] For details, see exhibit 6, bundle of course certificates.
45At the time of your arrest you were still awaiting an appeal in relation to the Government’s refusal of your application for a permanent visa. You remain on a bridging visa in the meantime although your counsel has submitted that it is virtually certain that you will be deported to Taiwan upon your release from prison.
Matters in mitigation
46The matters in mitigation upon which your counsel relied included the following.
47You co-operated with the investigators following your arrest and were prepared to make a number of admissions when interviewed.
48
You have entered an early plea of guilty to the charges you face which entitles you to a significant sentencing discount. Any trial would have been relatively lengthy and the utilitarian value of such a plea is enhanced during the
COVID-19 pandemic due to the trial listing pressures faced by this court. I also note that your plea to charge 1 was entered in circumstances where the prosecution were seeking to rely on the extended definition of ‘import’, something that your counsel could have sought to challenge at any trial had you so wished. The fact that you did not is an additional factor that leads me to conclude that you are remorseful for your offending conduct.
49The discount to your sentence should be such as to recognise the additional burdens faced by persons who are in custody during the COVID-19 pandemic, as recognised by the Court of Appeal in Worboyes and a number of other cases.
50The time that you have spent on remand has no doubt been of an onerous nature for that and other reasons. It is your first and only time in custody. You have difficulties communicating in English and there are only a small number of other prisoners who, like you, speak Mandarin. And, you are far removed from your family with whom you now have more limited contact and about whom you will no doubt worry, particularly given you can no longer provide for them financially.
51The circumstances in which you have found yourself while remanded and the consequent separation from your family with whom there has been more limited contact than was the case previously, together with your inability to financially provide for them has also, I accept, no doubt had an adverse effect on those family members.
52You face almost certain deportation to Taiwan on your release from gaol. I understood your counsel to ultimately acknowledge that this was not a significant matter in mitigation and he was correct to do so given that such deportation would unite you with your immediate and extended family rather than effect a separation. Furthermore, the evidence is not all one way in relation to you wishing to remain here and make a life for yourself in Australia. In this context, I note what your wife has said in her letter of 26 September 2021 to the effect that she believed you were going to return to Taiwan this year in accordance with the plan that you and her had earlier made.[10]
[10] See exhibit 2, page 2.3.
53Although there has been some delay in the disposition of this case I do not consider it to be inordinate or as establishing a significant matter in mitigation in the particular circumstances of this case.
54Significantly, you fall to be sentenced as a first time offender as you have no criminal history other than the present matter.
55You appear to have a sound work ethic and employment history and there is every reason to expect that you can obtain lawful employment once released from custody.
56You also have the continuing support of your wife and family as is evident from the letter from your wife dated 26 September.[11]
[11] Exhibit 2 on the plea.
57In all the circumstances, I consider your prospects of rehabilitation to be sound.
Gravity of the offending
58As to the gravity of the offending, I note the following.
59You have been charged with these offences on the basis of you having a reckless as opposed to intentional state of mind as to the defrauding of revenue. That must be kept firmly in mind when considering the nature and gravity of your offending. Unsurprisingly, Parliament has seen fit to distinguish between those states of mind when fixing the relevant maximum penalties.
60Each of the offences that you committed Mr Chen were, in my view, relatively serious examples of their type. You chose to involve yourself in what you must have understood was a significant commercial enterprise.
61You played a significant and important role without which this enterprise could not have continued to operate as it did. However, you were acting on instruction and not the architect of this criminal enterprise. You did not stand to profit from the sale of any of the cigarettes. That said, you engaged in this criminal activity for financial reward and but for the intervention of the ABF on 14 July 2021, I have no doubt that you would have continued to offend. Unlike some offenders, you do not appear to have been in desperate financial straits when you became involved, as evidenced by the fact that you owned a car and had been working previously to the point where you had managed to accumulate a significant amount of savings. There is an element of greed attached to your motivation for this offending.
62But I also note that you did not seek to disguise your identity when dealing with the storage companies and when renting or purchasing a truck, and that fact suggests a lack of sophistication that is not always present in this type of offending.
63Finally, it is worth noting that this is not victimless offending since the Government’s taxation revenue is put at risk and thereby their capacity to fully implement the measures that they need to that are reliant on that revenue stream.
Sentencing principles
64I am obliged to have regard to, so far as they are relevant, the various matters set out in s.16(A) of the Crimes Act1914 (Cth), and I do so. Any sentence that I impose must be one that is of a severity appropriate in all the circumstances of this case.
65General deterrence is an important sentencing consideration in cases such as this. So too, in my view, is denunciation.
66Given the nature and extent of this offending, specific deterrence is a relevant but not as weighty a consideration. I have no doubt Mr Chen’s experience of being arrested, charged and remanded for these offences would have already achieved some measure of personal deterrence in his case.
67Any sentence that this court imposes must be of such an order as to achieve those sentencing objectives. It must make Mr Chen and other like-minded offenders think twice about engaging in this or any similar type of offending in the future. The sentence imposed must send a clear message on behalf of the community that such criminal conduct is denounced in strong terms.
68Protection of the community, while still a relevant sentencing consideration, is of more limited significance than some others.
69Mr Chen must be punished for the criminal conduct in which he engaged, but in a manner and to an extent that is just and fair. But, when regard is had to all of the relevant considerations, it is clear that any punishment must be relatively significant if it is to fulfil the need to pay due regard to the relevant sentencing objectives, and in particular, general deterrence.
70The totality principle also arises for consideration in light of there being two offences that are closely connected in nature and time. However, given the separate and different criminality involved in each of those offences for which there was an intervening period of some weeks, there is a need to effect some degree of cumulation as between the two sentences in order to arrive at a sentence which ultimately reflects the total level of criminality involved in this offending.
71And, of course, regard must also be had to Mr Chen’s age and prospects of rehabilitation, which as I have already noted, are sound.
Other cases
72During the course of the plea, I was referred to a number of other cases in this general area. I found this exercise to be of very limited utility. A number of the appellate cases are of assistance in understanding the general principles that apply to revenue based offending. However, and notably, there were no cases which dealt with the reckless form of these offences and my subsequent endeavours to find any at appellate level have been unsuccessful. As such, I have not had the benefit of considering any truly comparable cases or of any clearly established sentencing practice for this type of offence. That may well be due to the fact that the creation of such offence types by Parliament only occurred relatively recently.
73In that context, it is important to bear in mind that the maximum penalty fixed by parliament for these offences is and remains an important guidepost as to the level of seriousness with which this type of offending should be viewed.
Sentencing submissions
74In his sentencing submissions on behalf of the defence, Mr Bloemen acknowledged that the offending was sufficiently serious to warrant an immediate custodial sentence. However, and based on the matters in mitigation, his client’s personal circumstances, and the sentencing principle of parsimony, he submitted that any such sentence should be kept to the minimum and involve a substantial degree of concurrency between the two charges.
75For her part, counsel who appeared at the plea on behalf of the Commonwealth Director, sought to emphasise the importance of a number of sentencing considerations in this case, and in particular, general deterrence. Ultimately, Ms Karamicov submitted that the offending was sufficiently serious as to warrant immediate imprisonment and that either a head sentence with a non-parole period or a recognisance release order would be within the available range of sentences.
76I have considered those submissions carefully when deciding on the appropriate penalty in this case.
77Bearing in mind counsels’ submissions, the nature and extent of Mr Chen’s offending conduct, his personal circumstances, and the other relevant considerations, including the matters to which I must have regard in s.16A of the Crimes Act1914 (Cth), I have concluded that there is a need to impose a custodial sentence that will have the effect of facilitating Mr Chen’s release in the not too distant future. In arriving at that view, I have, consistent with the statutory requirement in s.17A of the Crimes Act1914 (Cth), concluded that no other option than a sentence of imprisonment is appropriate in all of the circumstances of this case.
Sentence
78Mr Chen, after balancing and weighing the various sentencing considerations in your case, I have concluded that nothing short of an immediate term of imprisonment is open. To do otherwise would fail to accord sufficient weight to a number of important sentencing considerations, especially general deterrence, and would represent an inadequate and unjust punishment for the criminality in which you engaged.
79Mr Chen, you are hereby sentenced as follows.
80On Charge 1, import tobacco products reckless as to whether there would be defrauding of the revenue, to a term of 20 months’ imprisonment.
81On Charge 2, possess and convey tobacco products reckless as to whether the revenue was defrauded, to a term of 20 months’ imprisonment.
82I make the following directions as to the commencement dates of those sentences
83The sentence for Charge 1 is to commence today.
84The sentence for Charge 2 is to commence 14 months before the sentence on charge 1 is completed.
85The total effective sentence is therefore 26 months’ imprisonment.
86Pursuant to s.20(1)(b) of the Crimes Act1914 (Cth) I direct that Mr Chen be released in relation to all federal sentences imposed this day, after having served 18 months of that sentence, upon giving security in the sum of $1000 on condition that he be of good behaviour for a period of 26 months.
87That period of 18 months to be immediately served is, in my view, the minimum period that can be ordered. In so ordering, I have sought to maximise what prospects of rehabilitation Mr Chen has without undermining the punitive and deterrent requirements of this sentence.
88Counsel, in making those orders I was intending to have the sentence of 20 months imposed on Charge 1 as the base sentence, in effect, and to impose cumulation of 6 months for Charge 2 so as to arrive at an effective sentence of 26 months’ imprisonment.
89What I will do at this stage is to briefly leave the Bench. My associate will provide you with a copy of the draft recognisance release order for each of the parties to check and ensure that my stated intentions as to the sentence are given proper and legal effect, and when I come back on the Bench, after checking that and assuming that it is in order, I will need to explain the effect of that sentence to Mr Chen, and in the circumstances, given he is appearing by way of video link, seek his verbal consent to being placed on and subject to that order. Mr Acutt, is that how you pronounce your surname?
90MR ACUTT: Acutt, Your Honour.
91HIS HONOUR: Acutt, sorry, Mr Acutt. I am more than happy for you to take the opportunity during that same break to clarify anything for your client in respect of that sentence, if there is a need to but in any event, explain it to him. That may well assist in truncating the exercise I have to go through with him in explaining it.
92MR ACUTT: Yes, Your Honour. Thank you.
93HIS HONOUR: So I will leave the Bench briefly. Counsel can take what time they need to facilitate those matters. Just let my associate know when you are ready to resume. The link can remain open and to the extent you need to, have the interpreter assist you. I am more than happy for that to be the case.
94MR ACUTT: Thank you, Your Honour.
95HIS HONOUR: Thank you.
96(Short adjournment.)
97HIS HONOUR: Can I just confirm, Madam Interpreter, are you muted at that end? Yes, thank you. Well perhaps commencing with you, Ms McDonald, can I ask were the orders that I have made as to the commencement date of the various sentences and the intended degree of cumulation achieve my stated intention to impose a total effective sentence of 26 months’ imprisonment with release after 18 months?
98MS McDONALD: Yes, that is correct, Your Honour.
99HIS HONOUR: Mr Acutt?
100MR ACUTT: Yes, Your Honour. That is my reading.
101HIS HONOUR: If you could now interpret, Madam Interpreter. Mr Chen, I am required to explain the nature of the sentence to you and the consequences for you if you were to breach it.
102The total sentence I have imposed is 26 months’ imprisonment. You are required to serve 18 months of that sentence in custody, that is, in gaol. Once you have done so, you will then be released on the recognisance, that is the promise to be of good behaviour, in the sum of $1000, a condition of which is that you will then be required to be of good behaviour for 26 months. If you breach any of the conditions of that recognisance, you can be brought back to court and, in addition to forfeiting, that is having to pay the recognisance amount of $1000, you may also be required to serve the balance of the sentence, namely, eight months in custody. Either you or the prosecution can seek to have the order discharged or varied under the Crimes Act (Cth) 1914. By giving your verbal consent to the recognisance, and consent means agreement, you will be agreeing to be bound by the terms and conditions of that order. Your counsel will be given a copy of that order in a moment, by copy I mean a signed copy. Shortly I will ask you whether you consent to being placed on that order and if you give verbal consent that will be sufficient for the moment. A copy of the order will however be sent to you in custody later today and you will need to sign that order in the appropriate place, and it will then be returned to the court.
103Mr Chen, do you consent, that is agree, to the terms and conditions of that order and do you agree to be bound by them?
104OFFENDER: (Through interpreter) Yes.
105HIS HONOUR: All right, well I will take that as you verbally consenting to the order. Do you also agree once provided with the order for signature, to sign the order, again indicating that you consent to it?
106OFFENDER: (Direct) Yes.
107HIS HONOUR: Very well. And has it been explained to you, Mr Chen, that whilst you will need to serve 18 months in custody before you are released from prison, the 471 days that you have already served will be deducted from that time? So you will have to serve the 18 months minus the 471 days. Do you understand that?
108OFFENDER: Yes.
109HIS HONOUR: Sorry, what was that, Madam Interpreter?
110INTERPRETER: He said, ‘Yes, I understand’.
111HIS HONOUR: All right, thank you. All right, well I will now need to say what else I need to say at this stage.
Section 6 AAA indication
112Pursuant to s.6AAA of the Sentencing Act 1991 I indicate that but for Mr Chen’s plea of guilty to these charges, he would have been sentenced to a total effective sentence of 34 months’ imprisonment with release under a recognisance release order after having served a period of 26 months. Madam Interpreter, do you want me to repeat any of that before you interpret it for Mr Chen?
113INTERPRETER: It's okay, it's okay.
114HIS HONOUR: All right. Well if you could interpret that and what else I am about to say, thank you.
Pre-sentence detention
115The Court hereby declares that Mr Chen has already served a period of 471 days pre-sentence detention in respect of the sentence that he has received today and that such period should be deducted administratively. It is further ordered that the fact of this declaration and its details be entered in the records of this Court.
116All right, I think you may now mute from your end again, thank you, Madam Interpreter.
Other matters
117Counsel, are there any matters that either of you need to raise at this stage in relation to either sentence or my sentencing reasons?
118MS McDONALD: Nothing further, thank you, Your Honour.
119MR ACUTT: Nothing from me, Your Honour.
120HIS HONOUR: Very well. Well as I have indicated the period is 18 months to be served. The 471 days will be deducted from that. As to whether the custodial authorities give further credits because of emergency management issues is a matter for them. The bottom line is, I don't think we can know what precise date Mr Chen will be released at this stage. Well he will certainly be released from gaol, as to whether he is released into the community or into the custody of Immigration authorities will ultimately be a matter for them and I say nothing further about that.
121Yes, all right well can I thank the parties for their assistance in this matter and Madam Interpreter, can I also thank you for your assistance during the course of this hearing today.
122INTERPRETER: My pleasure, Your Honour.
123HIS HONOUR: Now you have been provided with a copy of my draft sentencing reasons on the condition that it be used for the purpose of interpreting it as I delivered it, but only for that purpose, so you will need to delete it immediately after this hearing if you have not already done so.
124INTERPRETER: Sure, sure, I understand.
125HIS HONOUR: Yes, thank you. Yes, adjourn the Court sine die at this stage please. Mr Hamill and Mr Acutt, you will have the opportunity of further communicating with your client via the video link once I leave the Bench shortly, if you need to.
126MR ACUTT: Thank you, Your Honour.
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