Director of Public Prosecutions (Cth) v Huang
[2019] VCC 2033
•10 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No 18-02528
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| JIAN HUANG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2019 | |
DATE OF SENTENCE: | 10 December 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Huang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2033 | |
REASONS FOR SENTENCE
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Subject:CRIMINLA LAW
Catchwords: Plea of guilty – one charge of importing a commercial quantity of a border controlled drug, namely methamphetamine – no prior criminal history – rolled up charge – importation of 5 separate consignments – total amount of pure methamphetamine imported was 5.428 kilograms – 7.24 times the commercial quantity – general deterrence – positive prospects of rehabilitation.
Legislation Cited: Crimes Act 1914 (Cth), Criminal Code 1995 (Cth), Sentencing Act 1991
Cases Cited:Nguyen v The Queen (2011) 31 VR 673
Sentence: Imprisonment for a period of 8 years, eligible for parole after serving 5 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms A Carlander | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C Pearson | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
Jian Huang, you have pleaded guilty one charge of importing a commercial quantity of a border controlled drug contrary to ss 307.1(1) and 311.13 of the Criminal Code 1995 (Cth), which carries a maximum penalty of life imprisonment.
You have no prior Criminal Record.
Circumstances of the offending
The charge to which you have pleaded guilty to is a rolled-up charge involving the importation of five consignments of methamphetamine. The prosecution opening for plea which was tendered may be summarised as follows:
Between 6 February 2018 and 9 February 2018 Australian Border Force officials examining postal items at the Melbourne Air Cargo facility located methamphetamine concealed inside five consignments, each sent from a ‘hardware store’ consignor in Malaysia.
The consignments contained methamphetamine as follows:
| Consignment Details | Amount (g) | Purity | Date | |
| 1 | Yue GU, 8 Linda St Coburg “Door stopper” – 150 door stoppers | 994.4 (net) 792.5 (pure) | 79.7% | 6 February 2018 |
| 2 | Tao Shu QI, 7 Berry Young Ave Burwood “Door stopper” – 149 door stoppers | 982 (net) 780.6 (pure) | 79.5% | 7 February 2018 |
| 3 | Zhang Han QIN, 19 Hughes Street Burwood “Door handles” – 34 door handles | 1949.9 (net) 1,565.7 (pure) | 80.3% | 7 February 2018 |
| 4 | Guo Xin QIANG, 83 O’Connor Rd, Deer Park “Door stopper” – 147 door stoppers | 972.7 (net) 752.8 (pure) | 77.4% | 9 February 2018 |
| 5 | Xu QIN, 50 George Street, Oakleigh “Door handles” – 34 door handles | 1,973.6 (net) 1,536.4 (pure) | 77.8% | 9 February 2018 |
Consignment 1, 2 and 4 contained door stoppers wrapped in plastic, inside of which were concealed small packages of crystalline methamphetamine wrapped in silver foil.
Consignment 3 and 5 contained metal door handles packaged in three smaller boxes within the consignment. Inside each handle were small packages wrapped in silver foil, containing crystalline methamphetamine wrapped in silver foil.
On 12 February 2018, the Australian Federal Police (AFP) gained approval to conduct a controlled delivery of Consignment 2 at 7 Berry Young Avenue, Burwood.
At approximately 9.49am on 13 February 2018, you used your Myki travel card to travel from St Kilda Road to Box Hill Railway Station.You arrived at Box Hill Railway Station at 11.47am.You then took a taxi from there to 7 Berry Young Avenue, Burwood.
The taxi driver that you travelled with stated that you were speaking on a mobile phone in English during the trip. He said you referred to a small notebook, which contained a number of handwritten addresses, when you asked to be taken to the Burwood address. He noted that you referred to this notebook throughout the journey whilst speaking on your mobile phone.
At approximately 12.05pm on the same date, AFP officers observed you arriving at 7 Berry Young Avenue, Burwood in the taxi.When you arrived, you proceeded to walk around the front yard of the residence, and did not go to the front door nor interact with anyone associated with that address. You then used your mobile phone again, before paying for the taxi fare and telling the driver he could leave as you were unsure how long he would need to wait.
Police observed you from the time of your arrival at the Burwood address at 12.05pm until approximately 4pm. During this time, you walked to the park area near the premises, down side streets, and returned to the property for a series of short periods. On a number of occasions you were seen looking in the mail box at the front of the premises.
At approximately 4pm AFP officers approached you and arrested you. They seized your mobile phone and the small blue notebook in your possession.
The notebook contained numerous handwritten addresses and phone numbers, including the addresses and phone numbers for each of the five consignments written in blue ink, as well as the names and contact numbers of the landlord for each residence, written underneath in black ink.
The handwritten entries found in the blue notebook were analysed and it was determined that you wrote the names of the landlords and their phone numbers in black ink.
You were cautioned and provided a ‘no comment’ interview to police although you later participated in two records of interview where you made some admissions.
On 16 February 2018, police executed a search warrant at your address. A number of items were seized from your bedroom including the following:
·a DHL delivery cardboard box, containing an open plastic bag containing opened metal pieces of metal door stops;
·numerous clip seal plastic bags containing crystalline powder, confirmed to contain methamphetamine;
·numerous coloured tubes containing crystalline substance, confirmed to contain methamphetamine;
·a piece of paper with numerous handwritten addresses, telephone numbers and names on it; and
·a number of mobile telephones.
During the execution of the search warrant, police spoke to the property manager of your unit. He stated that you commenced your lease on 10 December 2017, that you had a swipe card and key to the unit and were the only person with the key to the bedroom the above items were seized from.
An examination of your mobile phones included conversations on the application ‘WeChat’ between you and three other users.
WeChat conversations between you and two of those users show you discussing the collection of Consignment 2, and discussing plans to collect future consignments.
WeChat conversations between you and the third user involved discussing you undertaking similar work of this nature, and discussing payment of $2000 to you in relation to undertaking that work.
The total amount of pure methamphetamine contained in the consignments amounted to 5.428 kilograms pure (6.872.6 kilograms net). A commercial quantity of methamphetamine is 750 grams pure. Therefore the amount you imported is 7.24 times the commercial quantity of methamphetamine.
Nature and gravity of the offending
I turn to the nature and gravity of your offending.
The offence of importing a commercial quantity of a border controlled drug is a very serious offence which is reflected by the maximum penalty of life imprisonment.
The amount of the drug that you imported was just over seven times the commercial quantity with a potential street value exceeding $4,000,000. As is well established on the authorities, the amount of the drug involved in an importation, is a highly relevant factor in determining the objective seriousness of the offence.
While I accept that your offending was motivated by difficult financial circumstances, I note that you stated that you expected to receive approximately $2000 for performing your role. Thus your reward was to be very minimal and the prosecution does not take issue with that fact.
Your role was to take delivery of the packages at the various addresses and then hand them on to another person. Thus, it was submitted that your role was limited. However the prosecution submits that your role was pivotal and that while you may be described as an intermediary, you had detailed information as to when and where the consignments were to be delivered. Further, you were involved in the collection of five consignments.
There is no evidence to suggest that you were the principle of this importation or that you were to share in the profits. Nonetheless, the role you played is indispensable and drug networks can only continue to exist if people like you are willing to take the risk and undertake the task of being an intermediary as you did in this case.
Thus in all the circumstances taking into account the amount of drugs imported, the fact that you were collecting five consignments and that you were the first point of contact for the consignments as they arrived in Australia, in my view represents serious offending.
Personal circumstances
You are 29 years of age and were 27 at the time of the offending.
Your parents live in Shanghai and you have an older sister who is disabled and unable to walk. Your parents had high expectations of you as the male child.
You are a Chinese national and you came to Australia on 1 October 2014 on a student visa with the intention of completing a Master’s degree in Information Technology. You had completed a Bachelor’s degree in Automation in China.
When you arrived in Australia you resided with your uncle who was having difficulties financially. You were working in part time jobs however you were required to give money to your uncle who lost the money gambling. You found the time living with your uncle stressful as it interfered with your studies. As a result you failed a number of subjects and ultimately moved out.
You then lived with a fellow student in the CBD while working and studying. You continued to fail subjects and despite asking your parents if you could take an easier course, they refused.
You lived with your girlfriend for a period of time until she was forced to return to her country of origin, Thailand as a result of her student visa expiring. You maintained contact with her and supported her financially as she attempted to renew her visa.
You continued to fail and ultimately you stopped studying in the second half of 2017. Your parents also ceased supporting you. Your visa had expired in March 2017 and you were working in restaurants. Therefore at the time of the commission of the offence you were unlawfully in Australia.
You ultimately were tempted into this criminal activity in order to ease your financial difficulties. It was submitted that at the time of your arrest, all the money you had left was what was in your wallet. You stated that the housing in the St Kilda address where you were arrested was only temporary.
In your record of interview you stated that you used the WeChat application to talk to people in order to obtain casual work. You stated that you needed money to pay for food.
You have never had any drug, alcohol or gambling issues.
Since being in custody you have worked in the kitchen at Port Philip Prison and since April 2019 you have been housed at Fulham Correctional Centre where you feel more settled. You have completed courses in English, mathematics, computer studies and timber work. A number of certificates were tendered on the plea demonstrating your completion of courses while in custody.
You have not told any of your family about your current situation and thus you have been isolated without any outside support.
Sentencing considerations
As the charge to which you have pleaded guilty to is a Commonwealth charge, I am required to take into account a number of matters pursuant to s 16A of the Crimes Act 1914 (Cth). Ms Carlander who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of specific matters listed in s 16A(2) that must be given weight and I have taken those into account.
I take into account your plea of guilty. You did run a contested committal however only the informant was called and it was submitted that you would plead guilty from the outset. While your plea is not a plea entered at the earliest opportunity, it has still saved the time and expense of a trial and as such your plea has facilitated the course of justice.
The principles applicable to sentencing an offender for drug importations have been clearly expressed in decisions of the Victorian Court of Appeal and other intermediate appellate courts.[1]
[1] See for example, Nguyen v The Queen (2011) 31 VR 673 at [33]-[34] (Maxwell P).
While there are a number of propositions that must be taken into account in assessing the seriousness of the offence and thus the sentence, the authorities are clear, that given the great social consequences that flow from drug importation, general deterrence must be given primary consideration in the sentencing equation and that stern punishment will be warranted in almost every case.[2]
[2] Ibid at [34], point 7.
In addition to general deterrence, denunciation of your conduct and just punishment are also relevant sentencing considerations, which was conceded by your counsel. As to specific deterrence, you do not have any prior history and are otherwise a person of good character. In my view, although some weight must be given to specific deterrence, that weight is not substantial in this instance.
As you are a Chinese citizen and were in Australia without a visa at the time of the commission of this offence, it was common ground that it is anticipated that you will be deported once you have served your sentence.
As you are a foreigner with limited English and no friends or family able to visit you or support you, in my view this will make your time in custody more difficult than for a prisoner without those difficulties. The other aspect to consider is whether your potential deportation may be taken into account in mitigation. First, in this instance you are not at risk of losing an opportunity to settle in Australia as you were originally on a student visa that had expired when you committed the offence. Secondly, as noted, it is almost certain that you will face deportation, and it was submitted by your counsel on the plea that you have accepted that fact. Thus there is no uncertainty in your case that would make your imprisonment more onerous. As such I accept the submission on behalf of the prosecution that in the circumstances little weight should be given to the prospects of deportation.
Your prospects of rehabilitation, in my view in all the circumstances can be assessed positively. You have accepted that you will be required to serve a significant term in custody knowing that there is a strong prospect of deportation at the end of that process. Nevertheless you have taken that on board and decided to re-educate yourself while in custody and look to the future. You are still a relatively young man and it appears that you have accepted responsibility for your conduct and are moving forward.
Sentence
Mr Huang, please stand.
Jian Huang, on Charge 1, import a commercial quantity of a border controlled drug, you will be convicted and sentenced to 8 years imprisonment. I direct that you serve a period of 5 years before becoming eligible for parole.
I declare that 660 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 10 years imprisonment with a non-parole period of 7 years.
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