Director of Public Prosecutions (Cth) v Jintao Cai, Director of Public Prosecutions (Cth) v Haozhou Sun; Director of Public Prosecutions (Cth) Runxiang Shao

[2021] VCC 633

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-20-01779
CR-20-01778
CR-20-01639

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

JINTAO CAI

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

HAOZHOU SUN

AND

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

RUNXIANG SHAO

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 March 2021
DATE OF SENTENCE:	17 May 2021
CASE MAY BE CITED AS:	DPP (Cth) v Jintao Cai, DPP (Cth) v Haozhou Sun; DPP (Cth) Runxiang Shao
MEDIUM NEUTRAL CITATION:	[2021] VCC 633 – First revision

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                Sentence – Plea of guilty - Attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine -  Accused all youthful offenders - Each accused different roles in offending - Parity

Cases Cited:Wong v R (2001) 207 CLR 584; Parris v R [2013] NSWCCA 5; Phuong Bich Nguyen v R; Phommalysack v R (2011) 31 VR 673; DPP (Cth) v Hoang [2018] VSCA 86

Sentence:        Jintao CAI – Convicted and sentenced to 11 years’ imprisonment with a non-parole period of six years - 418 days’ imprisonment declared as having already been served by way of pre-sentence detention – s.6AAA Sentencing Act 1991 declaration 14 years' imprisonment with a non-parole period of 11 years’ imprisonment.

Haozhou SUN – Convicted and sentenced to 10 years’ imprisonment with a non-parole period of five years - 390 days’ imprisonment declared as having already been served by way of pre-sentence detention – s.6AAA Sentencing Act 1991 declaration 13 years' imprisonment with a non-parole period of 10 years’ imprisonment.

Runxaing SHAO – Convicted and sentenced to five years’ imprisonment with a non-parole period of two years six months – 418 days’ imprisonment declared as having already been served by way of pre-sentence detention - s.6AAA Sentencing Act 1991 declaration seven years' imprisonment with a non-parole period of four years’ imprisonment.

Ancillary order made – Forfeiture order

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth DPP	Mr P. Darby	Commonwealth Director of Public Prosecutions
For the Accused Cai For the Accused Shao For the Accused Sun	Mr J. Dickinson QC with Ms A. Harrold Mr R. Richter QC with Mr T. Trood Mr P. Tehan QC with Mr J. Manning	Melasecca, Zayler, Kelly Melasecca, Zayler. Kelly Slades & Parsons

HER HONOUR:

1Jintao Cai, Haozhou Sun and Runxiang Shao, you have each committed the offence of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine.  You have pleaded guilty to that offence.

2The maximum penalty for the offence is life imprisonment which reflects the seriousness with which the Commonwealth Parliament regards the offence that you have committed.  It is a matter that I must take into account in sentencing you. 

3The matter was opened by the prosecution as follows:

4I was told that you, Jintao Cai, were born on 1 February 2000 and you were 20 years old at the time of the offending.  During that time, you lived in an apartment in Station Street, Box Hill.

5You, Haozhou Sun, were born on 25 April 2001 and you were 18 years old at the time of the offending.  At the time you were living at an address in Doncaster.

6You, Runxiang Shao, were born on 1 October 2001 and you were 18 at the time of the offending.  At this time, you were living in an apartment in Elizabeth Street, Melbourne.

7I was told that your offending was detected by virtue of a particular investigation conducted by a joint organised crime task force into a shipment of methamphetamine which was imported into Australia on 11 March 2020. 

8On 11 March 2020, a shipping container with a reference number ending 988 arrived in Melbourne from Mexico.  The container was examined by Australian Border Force and Australian Federal Police officers and was found to contain 400 tyres.  Concealed in 60 of the tyres was 121 vacuum sealed packages which contained a white crystalline substance.  The substance was methamphetamine and it had a purity of 80.1 per cent with the minimum total pure net weight being 174.9 kilograms.

9I was told that between 14 February 2020 and 25 March 2020, the three of you and unknown others were engaged in conduct to facilitate the receipt of a commercial quantity of methamphetamine, being half of the consignment, which was imported on 11 March 2020. 

10The exact weight of the consignment in the container and details of this importation were not known to each of you.

11As part of an authorised major controlled operation, undercover officers negotiated that half of the intercepted consignment would be delivered on 25 March 2020.  A substituted consignment was constructed using 120 kilograms of an inert substance which was placed in 30 vacuum sealed packages and concealed inside one wooden crate.  From time to time, I will refer to the substituted consignment as, 'the consignment.'

12The quantity that you attempted to possess is alleged to be 84.5 kilograms being half the pure net weight of the consignment in the shipping container to which I previously referred.

13On 25 March 2020, a controlled delivery of the substituted consignment took place whereby $1.82m in cash was delivered by you, Mr Sun, to covert operatives in Room 2118 of the Grand Hyatt Hotel in Melbourne.  A substituted consignment purporting to be half the imported consignment of the methamphetamine was delivered by covert operatives to you, Mr Cai, and you, Mr Shao, at a property in Gowanbrae, Victoria.  You, Mr Cai, and you, Mr Shao, transported the substituted consignment to a particular room at the Empire Apartments in A’Beckett Street, Melbourne.  You, Mr Sun, attended the Empire Apartments with the empty suitcases which were used to deliver the $1.82m in cash.  

14Mr Cai, I was told by the prosecution that your role from 14 February 2020 included:

(a)   meeting with the delivering party who were covert operatives and discussing arrangements to coordinate the receipt of the consignment with the delivery of a cash payment;

(b)   renting the property where the consignment would be delivered – that is the Gowanbrae property;

(c)   coordinating with Mr Sun and others to rent the room where the consignment was taken after its delivery at the Gowanbrae property, being the Empire Apartments;

(d)   communicating with Mr Sun and a third party (“Long Win”) to coordinate the delivery of the cash with the receipt of the consignment;

(e)   receiving the consignment at the Gowanbrae property; and

(f)    directing and helping Mr Shao in the unpacking, counting and repacking of the consignment and its delivery to the Empire Apartments.

15I was told that your role, Mr Sun, from at least 25 February 2020 included:

(a)   meeting with the delivery party, being covert operatives, and discussing the delivery of the cash, in exchange for the receipt of the consignment;

(b)   coordinating with Mr Cai to rent an apartment intended to be the location for the exchange of the cash to take place, then directing a third person ('Bao') to make that booking;

(c)   communicating with Mr Cai and a third party ('Long Win') to coordinate the delivery of the cash with the receipt of the consignment; and

(d)   delivering the cash to those covert operatives at the Hyatt Hotel.

16I was told that your role, Mr Shao, from at least 23 March 2020 included:

(a)   checking into Apartment 2710 of the Empire Apartments; and

(b)   under the direction of Mr Cai, unpacking, counting and repacking the consignment and delivering it to the Empire Apartments.

17During the delivery of the consignment, you, Mr Cai, and you, Mr Sun, received direction from a person referred to as 'Long Win.'  The identity of 'Long Win' has not been established by the investigators in this matter.

18After giving the overview of your offending, I was provided with a good deal of detail with respect to this matter.  Although it is somewhat tempting to paint a broad brush of your offending, for the sake of brevity, it is necessary to go into some detail in order to properly represent what each of you did.

19On 14 February 2020, you, Mr Cai, travelled from Melbourne to Brisbane with your partner, Ms Yi He.  At about 2:00pm on that day, you attended a meeting at a restaurant in Fortitude Valley, Queensland, with police Covert Operative 298, ('Daniel'), and police Covert Operative 300, ('Mike').  At that meeting, CO298 advised you, Mr Cai, that the purpose of the meeting was to plan everything in advance so that the delivery of the drugs in exchange for cash would run smoothly on the day.  You were advised that the container was due to arrive in Melbourne on 2 March 2020; you, Mr Cai, asked if there was preference between delivering the load to a storage facility or a house, as your syndicate had arranged a vacant house in the suburb of Surrey Hills.  You said that your plan was to arrange for yourself and three other friends to be in the Surrey Hills house when the delivery occurred in order to take possession of the drugs and that you would have cars driving around, checking the surroundings.  You and CO298 agreed that the exchange of money and delivery of drugs would occur at different locations at the same time and that you would provide CO298 with your mobile number.  CO298 advised you that a truck would deliver the product in wooden crates.  You discussed the option of splitting the delivery in half and making two separate payments and confirmed that you would be receiving the delivery, and someone else would be handling the money.  It was agreed that another meeting would be arranged in Melbourne before 2 March 2020. 

20At one point in the meeting, you, Mr Cai, made a phone call to a person who you identified as your 'guy' to confirm further details.  After the phone call, you advised that the money would be in bundles of $10,000 and the notes would be in $50 denominations. 

21On 25 February 2020, you, Mr Sun, attended a meeting with CO298 at a bar in the Grand Hyatt Hotel, Melbourne.  The purpose of the meeting was to discuss arrangements for the payment of $1.82m cash for the delivery of 87.5 kilograms of methamphetamine.  The conversation between you, Mr Sun, and CO298 was audio recorded.  You, Mr Sun, and CO298 exchanged a predetermined code word.  Subsequently, at the original plea hearing, I was told that this was CO298’s idea, not yours.  You said that you were not in charge of the money and that someone was going to follow you and then you would meet up.  You said that your boss was holding the money and that you and another person were going to bring the money, however, you did not know how much money it would be in total.  CO298 said that it would be a lot of money, so they needed to make preparations for it.  He said that he would get a hotel room at the Grand Hyatt or somewhere else and that when the money came he would count it – if everything was good, he would make a phone call to deliver the drugs and that you, Mr Sun, could stay until the delivery had been effected so that you would both be happy.  You, Mr Sun, said that the money was most likely to be in a suitcase in $50 denominations and in $10,000 bundles and you said that you had not met the other person who would be helping you with bringing the suitcases of money.

22During the meeting, you, Mr Sun, provided CO298 with a contact number that had been falsely subscribed in the name of another person.  The service was activated on 25 February 2020, being the day of the meeting to which I have just referred.

23I was told that the address in Gowanbrae was an Airbnb short stay accommodation.  The property was booked on 8 March 2020 in the name of Ms He, who was your girlfriend, Mr Cai, via Ms He’s Airbnb account.  Accommodation was booked from 9 to 31 March 2020 at a total cost of $4,693.82.  The contact number for the booking was your phone number, Mr Sun.

24On 8 March 2020, you, Mr Sun, received text messages from Airbnb in relation to the booking for the Gowanbrae property.  On 9 March 2020, you received a voicemail from Airbnb to confirm the booking. 

25On 10 March 2020, you, Mr Cai, met with CO300 in Essendon, Victoria, and you exchanged a predetermined code word.  You, Mr Cai, said you had booked the Gowanbrae house and had scouted many other areas including Sunshine.  You said that you had been to the Gowanbrae property about two or three times.  You told CO300 that the Gowanbrae property had, 'many escape ways in the house, where you can get out quick.'  You also said that the street where the house was located had two entrances and that on the day, you would arrange a driver to pick you up.  You said that once the driver delivered you to the address, you would have him park at a particular entrance to see if anything went wrong. 

26You and CO300 then visited the Gowanbrae property and discussed the visibility of the premises as well as possible CCTV and alarms.  CO300 explained that he would have a removalist truck reverse up to the garage to deliver the crate and would wait for a call to know if it was all good on his end and then he would make the delivery.  He confirmed he would bring one other guy and you, Mr Cai, said you would also bring one other person that worked for you.  You, Mr Cai, and CO300 discussed the idea that you had of wanting other people to drive around the streets on the day of the delivery.  CO300 told you not to do this as it could draw unwanted attention.  You said that just as you had spoken about in Brisbane, the money would be delivered first and then the crates would be delivered.  You, Mr Cai, asked how many crates there would be and about bringing something to open the crates with. 

27On 16 March 2020, you attended a shop in Box Hill where you purchased four large suitcases, two hammers, black markers and a set of digital scales.  The suitcases were subsequently used by you and Mr Shao on 25 March to carry the substituted consignment.  The two hammers were to open the crate containing the substituted consignment.

28On 22 March 2020, an image file was created on your phone, Mr Shao, which contained the address for the Gowanbrae property and a map of the location.  At 10:18 am on 23 March, you, Mr Sun, received a call from the company managing the short-term lease of the Gowanbrae property. 

29At 10:15am on 24 March, you, Mr Sun, received a text message from the management company confirming that a house keeping team would attend the Gowanbrae property on the morning of 31 March 2020. 

30On 6 March 2020, the AFP lawfully intercepted your telecommunication services, Mr Sun.  The information from that date revealed that you were in frequent contact with Mr Cai and identified as, 'Howard' 'HW' and 'GM Sun.' 

31At 4:29pm on 21 March 2020, you, Mr Sun, received a message containing a link and a code for a 'telegram' account.  I understand that this related to a messenger phone application which can be used to share text messages, photos, videos, locations and contacts.  All data on this service is encrypted. 

32At about 5:23pm on 24 March, a chat group called '1' was created on the messenger application by you, Mr Cai.  The chat group '1' included you, Mr Cai, who used the alias, 'Devil GodV'; you, Mr Sun, used the alias, 'Jimmy Smith', and another telegram user used the name, 'Long Win.'

33On 17 March 2020, you, Mr Sun, and you, Mr Cai, spoke by phone about renting a hotel or apartment in the city.  You, Mr Sun, inquired about how to pay for the property and you, Mr Cai, said that you would receive further directions from a third party. 

34On 22 March, you, Mr Sun, and you, Mr Cai, spoke further on the phone about renting a location in the city.  During this conversation, you, Mr Cai, asked Mr Sun if he had anything scheduled for Wednesday, 25 March 2020.  You, Mr Sun, responded that on Wednesdays you needed to go to, 'the government job seeking place' and that, 'if time permits, I would want to be there just to show my face.  That would be a very good alibi.' 

35On 22 March, you, Mr Sun, spoke on the phone with a Mr Qishan Yang.  During the conversation, Mr Yang said, 'then drug business is going to boom, general manager Sun' and you, Mr Sun, replied, whilst laughing, 'general manager Yang, next Wednesday.'  The reference to, 'next Wednesday', was a reference to Wednesday, 25 March which was the date for delivery of the consignment.

36On 23 March at 3:37pm, you, Mr Sun, met with a friend, Ms Mengyu Bao, at an address in Little Bourke Street, Melbourne.  You, Mr Sun, asked Ms Bao to book a room at a nearby hotel for your father.  You provided her with $1,050 cash for the booking.  However, the hotel refused to offer a room to Ms Bao due to
COVID-19 restrictions.

37At 3:50pm, you, Mr Sun, called Mr Cai and notified him that you had been unable to book the hotel room.  Mr Cai replied, 'Why don’t you keep negotiating with them, just keep negotiating with them.'  At 3:56pm, you, Mr Sun, called Mr Cai again to confirm whether you should, 'Change to another place.'  You, Mr Cai said that you wanted to, 'Report back to my big bro straight away.' 

38At 4:08pm, you, Mr Cai, told Mr Sun, 'Wait for me for a sec.  I am sorting out the apartment and I am waiting for the news.  I will call you later.'  You, Mr Sun, replied, 'How long do I have to wait?'  You, Mr Cai, said that it should be quick, 'Possible we don’t need it.'  You, Mr Sun, said, 'Hmm, what the fuck.'

39At about 4:10pm, you, Mr Cai, met with you, Mr Shao, at A’Beckett Street, Melbourne.  Shortly after, you, Mr Shao, entered the Empire Apartments.  You checked into Apartment 2701 at the Empire Apartments which was booked for one month from 23 March.  Your passport was provided for identification and a contact number was also provided.  You paid $4,200 cash and received the access key.  The contact number which you provided was not subscribed to you. 

40At 4:25pm, you, Mr Shao, returned to you, Mr Cai, on A’Beckett Street and handed over the key for Apartment 2701. 

41At 4:20pm and 4:24pm, there were phone calls between you, Mr Cai, and you, Mr Sun, regarding the booking of a hotel room in the CBD.  During these calls, you, Mr Cai, requested that you, Mr Sun, book a hotel room and subsequently you, Mr Sun, confirmed that the price for a particular room was suitable.  At that point, you, Mr Cai, said, 'Let me ask my big bro.'  At 4:30pm, you, Mr Cai, called you, Mr Sun, and said, 'They are saying that the location is really too visible and too central.' 

42At 4:33pm, Ms Bao had booked a room for you, Mr Sun, at the Mantra Hotel in Russell Street, Melbourne, for seven nights.  Three minutes later, after a conversation between you, Mr Cai, and you, Mr Sun, about cancelling the booking, Ms Bao cancelled the booking.

43At 4:49pm, Ms Bao booked Room 1206 at the Fraser Place Apartments in Melbourne from 23 to 30 March and paid $750 cash.  Ms Bao handed the keys to you, Mr Sun, as well as the remainder of the cash that you had given to her.  In a phone call at 4:52pm, you, Mr Sun, notified you, Mr Cai, that the room had been booked and agreed to meet with you to hand over the keys.  During this call, you, Mr Cai, said, 'As my Big Bro told us right from the beginning, as long as we follow his instructions every step on the way, then we will do no wrong.' 

44At 11:00pm, you, Mr Sun, and Mr Yang attended the hotel room booked by Ms Bao at the Fraser Place Apartments then left a short time later.  At 11:10pm, you, Mr Sun, called you, Mr Cai, and said, 'There is surveillance on every floor once you leave the lift.  There is surveillance in the lift.  There is surveillance on first floor too.'  You, Mr Cai, replied, 'It doesn’t really matter anyway as we may not use the inside of the hotel.'  You said, 'Even if it has been utilised, we are not doing any business there.  We are doing business with that sort of stuff, just money.'  You, Mr Sun, replied, 'In a huge amount.'  You, Mr Cai, agreed, saying, 'Just money in a huge amount.'

45In the same conversation, you, Mr Cai, went on to say to Mr Sun, 'Well, worst come to worst, after have done a hard day's work, you didn’t actually touch the money' and 'If people ask you why are in that room - bloody hell, you could say that was your friend, your friend.  You didn’t expect people would bring that much money in that room.' 

46On 24 March at 5:36pm on the telegram chat group, 'Long Win' sent the following message: 

'Jimmy (a reference to you, Mr Sun) at the time, keep an eye on me, you will give the money to people, only when I say put down the money. Whatever they say to you, you have to say you will make inquiries.  Inquire with me first.'

47At 5:37 pm, you, Mr Sun, and you, Mr Cai, had a telephone conversation where you, Mr Cai, informed Mr Sun that you would not be using the Fraser Place Apartment and that the money would be delivered at the Grand Hyatt Hotel.  You, Mr Cai, notified Mr Sun that he was to go to the room in the Grand Hyatt by himself with the suitcases containing the cash.  You, Mr Cai, then provided instructions regarding the exchange of the money.  You said,

“You bring the money up.  Then there will be the first checking to confirm that the money has arrived.  Then they will start counting the money. 

'After they have counted the money, they will release the stuff.  At this stage, after you have sighted them finished counting the money, you have to get the money back.  

…

'You then let them tidy the money and give it back to you.  You just have to tell them that you need to conduct your own checks before you could finally give them the money.

…

'They will send someone over. After they send someone over, then it will be my turn.  After I have sorted things out, I will inform my Big Bro in the Group.  Then if you receive my Big Bro’s instruction to release the money, you can give them the money and leave.' 

48Later in the conversation, you, Mr Sun, asked Mr Cai if you could wear gloves when delivering the money.  You, Mr Cai, replied, 'Just give the suitcases a wipe to get rid of the fingerprints.  Do that before you drag them in.' 

49On 25 March 2020, you, Mr Cai, you, Mr Sun and 'Long Win' continued to coordinate your movements using the telegram chat group 1.  At 9:03 am, 'Long Win' asked you, Mr Sun, what clothes you were wearing.  You, Mr Cai, described your clothing.  'Long Win' directed you, Mr Sun to arrive at 10:00am 'at the hotel you met previously.'  This was a reference to your meeting at the Grand Hyatt on 25 February 2020.

50At 9:29am, you, Mr Cai, travelled in a blue Corolla driven by a Mr Yunlong Wang to Gowanbrae.  The car stopped along Gowanbrae Drive, a short distance from the property which previously had been booked in the name of Ms He.  You, Mr Cai, got out of the car holding a green shopping bag and walked to 154 Gowanbrae Drive, where you entered the premises alone.  You, Mr Shao, attended the premises several minutes later. 

51Between about 9:10am and 10:00am, ‘Long Win' provided instructions to you, Mr Sun, via the telegram chat service, on how you would receive the cash in two suitcases outside the front of the Grand Hyatt Hotel.  The instructions included the following:

'At that time, I reckon the male westerner will be very punctual arriving at the lobby.  You just have to check him out at the door, don’t greet him.  You have seen him and confirmed that he is there, as I don’t want you to roam around trying to find him dragging two pieces of luggage.  You confirm the male westerner has arrived at the lobby. Maybe you can look into the lobby from the door.

…

'Then you go up there to LV to meet the Vietnamese.  (He/She) will then walk with you to the hotel and be able to see you go in.  You must go in with the male westerner.  That would be ok then.

…

'The Vietnamese will say to you:  'Jimmy.'  You will reply: ' David.'  That’s all.

…

Then later on: 'Vietnamese, will arrive in 10 minutes.'

52At about 10:00am, Mr Minh Christopher Le handed you, Mr Sun, two large suitcases in Collins Street, Melbourne in front of the Louis Vuitton store.  The reference to 'LV' in the telegram chat just referred to was a reference to Louis Vuitton and the reference to the Vietnamese referred to Mr Le who is of Vietnamese descent. 

53At 10:01am, you, Mr Sun, sent a message to the telegram chat group 1 saying, 'Taken', and, 'On the way upstairs' to confirm that you had received the suitcases containing the cash and you were on the way into the hotel.  'Long Win' replied, 'OK have you seen the male westerner?'  You, Mr Sun, replied, 'Not yet.'  'Long Win' messaged to you to go to the lobby and you replied, 'I have seen' and going/gone upstairs.'  'Long Win' replied, 'Good'   'Remember, let him do the counting, don’t let him take it away.' 

54While this telegram chat was taking place, you, Mr Sun, took the two suitcases to the lobby of the Grand Hyatt Hotel where you were met by CO298.  You and CO298 entered the hotel lift and went to Room 2118 where you, Mr Sun, were introduced to CO319 or 'Kayla.'  Once inside the hotel room, you, Mr Sun, handed CO298 two suitcases containing a total of $1.82m cash.  CO298 counted the bundles of cash then made a phone call.  After the phone call, CO298 told you, Mr Sun, that the delivery was five minutes off.  CO298 asked you, Mr Sun, what made you get involved in this business.  You, Mr Sun, pointed to the $1.82m cash on the table and replied, 'that.'  You, Mr Sun, said that you had known 'TT', a reference to Mr Cai, for a long time from back in China.  CO298 asked you, Mr Sun, if the drugs were going to be sold wholesale.  You, Mr Sun, replied, 'Bulk' but said you were not sure if they would be sold per kilo.  You admitted that you sometimes took drugs yourself.  When asked if it was the first time 'You guys' had imported, you replied, 'Me yes, but not my boss.'  You said that you did not bundle the money yourself.

55During the time that you were inside Room 2118, you were frequently using a mobile phone.  At about 10:13am, you, Mr Sun, messaged, 'Counting done', and, 'It is correct.'  'Long Win' replied, 'All right, you can only give him when I tell you so', and, 'Wait for my update now.'

56At 10:21am, the substituted consignment purporting to be half of the imported methamphetamine from the shipping container was delivered to 154 Gowanbrae Drive, Gowanbrae by CO300 and police Covert Operative 314 or 'Will.'  It consisted of 30 packages which were hidden inside a wooden crate.

57The crate was delivered to the garage of the premises.  You, Mr Cai, and you, Mr Shao, were standing at the open garage door and greeted CO300 and CO314.  You, Mr Cai, and you, Mr Shao, then entered the house via the internal garage door and returned to the garage each wearing long black gloves and each holding a hammer.  Once the crate was placed inside the garage, you, Mr Cai, and you, Mr Shao, began to open the crate using the hammers to pry the wood off. 

58At 10:22am, telegram chat 1 continued with 'Long Win' messaging, 'Do not let go,' and, 'Don’t let the money go yet, wait.'  You, Mr Sun, replied, 'OK', and, 'Has the person arrived yet?'  'Long Win' replied that the person had arrived and, 'T is looking.' 

59At 10:28am, CO300 and CO314 left 154 Gowanbrae Drive, Gowanbrae in the truck.  Once they had left, you, Mr Shao, and you, Mr Cai, opened the crate and counted out the number of vacuum sealed packages that had made up the substituted consignment.  A listening device which was installed in the crate recorded you, Mr Cai, telling Mr Shao to count the packages and then both of you counting.  During the counting, you, Mr Shao, said, 'Fuck.  It is so heavy, elder brother.  Bloody hell, how many 'jin' are they?'  I was told that 'jin' is a Chinese expression for 500 grams.

60While the packages were being counted, you, Mr Cai, can be heard speaking on the phone to a third person in Cantonese.  At 10:30am, via the telegram chat 1, 'Long Win' messaged, 'Release the money', and, 'You just bring the two empty cases to the apartment.'  You, Mr Sun, replied, 'OK, going to the apartment now.'

61At about 10:32am, you, Mr Sun, left the Grand Hyatt Hotel with the empty suitcases and walked a short distance to Flinders Lane where you placed the suitcases in the boot of a white Mercedes.  You, Mr Sun, then got into the passenger seat and departed with Yang. 

62At 10:41am, you, Mr Cai, and you, Mr Shao, left the Gowanbrae premises with four large suitcases containing the substituted consignment.  The four suitcases were loaded into a taxi van and Shao departed in the taxi.  You, Mr Cai, departed the premises shortly after this, carrying a bag, getting into the blue Corolla driven by Wang.

63At 10:48am, you, Mr Sun, arrived in A’Beckett Street, Melbourne and delivered the two empty suitcases which had contained the cash to Apartment 2710 of the Empire Apartments.

64At about 11:16am, you, Mr Shao, and you, Mr Cai, arrived separately to A’Beckett Street, Melbourne.  You had each travelled directly to the Empire Apartments from Gowanbrae.  You, Mr Cai walked over to Mr Shao who was standing beside the taxi. 

65At 11:19am, you, Mr Shao, and you, Mr Cai, walked with two suitcases each to the Empire Apartments and took the lift to Apartment 2701.  At 11:39am, you, Mr Cai, received a telegram message from 'Long Win' who wrote, 'Let me know when you have taken care of it.'

66At about 11:41am, you, Mr Sun, left the Empire Apartments alone and you were driven away in the white Mercedes by Yang.  At about 11:42am, you, Mr Shao, left the Empire Apartments alone. 

67After leaving the apartments, you, Mr Sun, messaged Mr Cai, 'What are you doing?' to which you, Mr Cai, replied, 'Waiting.'  You, Mr Sun, replied with, “[emoji of a bag of money]?” and you, Mr Cai, responded, 'No', and, 'In one week the money will be released.'  You, Mr Sun, replied, 'OK.'  The references to money in this exchange are alleged to be references to payment of an unknown amount that you, Mr Sun, and you, Mr Cai, were to receive for your involvement with handling the methamphetamine and dealing with the $1.82m in cash.  There was no evidence before me as to how much you expected to receive as payment nor was there any evidence for that matter as to how much money Mr Shao expected. 

68At about 12:10pm, you, Mr Cai, received a phone call from 'Long Win' who said, 'Go, go, go, go, go.  Younger brother, go. Get out quickly.  Get… get out to take the lift.  Get out to take the lift.  Bye-bye.' 

69You, Mr Cai, immediately left the apartment and took the lift to the ground floor.  At 12:12pm you were arrested by police whilst attempting to leave the Empire Apartments building.  You refused to tell police the correct apartment number that you had attended, incorrectly telling police that you came from Room 2703. 

70Police subsequently entered Apartment 2701 and found two empty suitcases used by you, Mr Sun, earlier that day to deliver cash to the Grand Hyatt Hotel, Melbourne.  In the lounge area police also found a powered portable CCTV camera connected to mobile Wi-Fi units.  The CCTV camera was used by others involved in obtaining the consignment to remotely monitor the inside of Apartment 2710.

71At different stages during the afternoon of 25 March, the AFP searched the room at the Empire Apartments but could not find the substituted consignment. 

72Between 1:19 and 1:39pm, you, Mr Shao, received the message, 'How is it?' from an unknown person identified in your contact list as 'Master Msw.'  You replied, 'All OK' and 'just waiting to get money.'  This was a reference to the payment that you expected to receive for your role in the offending. 

73At about 3:10pm, you, Mr Shao, were found by police and arrested at your premises in Elizabeth Street, Melbourne.

74At 5:36pm, you, Mr Sun, were arrested by police in a car park in Doncaster.  The following items were found in your possession and seized:

(a)   $2,000 cash;

(b)   Apple iPhone XS Max;

(c)   a key and key fob with green tag for apartment 2701 of the Empire apartments; and

(d)   an apartment access key for Fraser Place Apartments for Room 1206.

75You, Mr Cai, and you, Mr Sun, declined to answer any questions asked of you by police during records of interview.

76During a record of interview with you, Mr Shao, you said that you had been asked by Mr Cai who you knew as 'Tao Tao' to help him rent a hotel room and to move items from a house in Gowanbrae and you denied knowledge of the crate or other people attending the property.  Later in the interview, when it was put to you that you were observed in the garage when a truck delivered a crate to the garage, you said that you and Mr Cai accepted delivery of a large box at the Gowanbrae property and you helped Mr Cai with opening the box in the garage.  You said you did not see what was inside the box.  You said you helped load four suitcases into a taxi and travelled alone in the taxi to the Empire Apartments.  You said that at the Empire Apartments you and Mr Cai, who arrived separately, took the suitcases into a room on Level 27 where an Asian male who was unknown to you was present.  The room was the first door as you turned left from the lift, which was consistent with the apartment being Room 2701.  You said you then left alone.

77On 25 March 2020, search warrants were executed at the residential premises where each of you lived.

78At your premises, Mr Sun, police found and seized a pill box labelled Monday to Sunday with a single SIM card in each compartment labelled Monday to Thursday.

79At your residence in Box Hill, Mr Cai, police seized one Apple iPhone, three clip seal bags containing marijuana and two marijuana cigarettes.

80At your premises, Mr Shao, police seized clothing worn by you earlier that day at Gowanbrae and an Apple iPhone XS Max.

81At 154 Gowanbrae Drive, police seized the open wooden crate used to deliver the packages and two hammers.

Drug valuation

82The minimum net weight of pure methamphetamine that each of you attempted to possess was 87.5 kilograms, being half of the container consignment.

83The estimated wholesale value of half of the consignment is between $10,850,000 and $16,327,500.  The estimated street value was between $21,775,430 and $38,107,002.  When I asked the prosecution whether there was any evidence that the drug was to be sold at street level, they indicated that there was not.

84Jintao Cai, Haozhou Sun and Runxiang Shao, your offending is most serious and calls for a punishment which must be adequate in all of the relevant circumstances.  Your conduct must be strongly denounced.  Each of you chose to become involved in this most evil enterprise without any apparent regard for anything other than your own financial gain.  There is no evidence before me as to how much payment you expected to receive but as you were only motivated by your own financial reward, I find that in each of your cases, your moral culpability is high.  Having said this, I am very much aware of the role which each of you played in the enterprise with you, Mr Cai, having the most serious role and you, Mr Shao, having the least involvement, with you, Mr Sun, being somewhere in between, however closer in terms of your level of involvement to the role of Mr Cai than to that of Mr Shao.

85You, Mr Cai, held an important position of trust in the syndicate that you apparently worked for.  Although, clearly, you were acting under instruction from others, you had a good deal of knowledge of the scope of the operation in which you were involved in respect of receiving the drugs.  Your involvement in planning can be traced back to 14 February 2020 and, as the prosecution asserts in their sentencing submissions, you took part in the logistics of renting three separate properties which were used for the receipt of the consignment and exchange of cash.  You conveyed instructions to Mr Sun about the exchange of money on 24 March 2020 and were personally involved in checking the contents of the consignment, unpacking and repacking it on 25 March.  You conveyed instructions to Sun and Shao and held discussions with the undercover operatives on 14 February 2020, reflecting that you were trusted by others to carry out their instructions.  You were also trusted to discuss logistical arrangements on behalf of the syndicate at Gowanbrae on 10 March 2020.  Further, it appears that you were content to have others potentially incriminate themselves by providing their details whilst you kept something of a distance.  For instance, your girlfriend’s Airbnb account was used to secure the Gowanbrae property whilst the contact number provided for the booking was Mr Sun’s phone number, rather than yours.  Further, as is evident from your discussion with CO300 on 10 March, you had a certain level of autonomy – for instance, you came up with the idea of wanting other people to drive around the streets on the day of the delivery of the consignment.

86You, Mr Sun, also had a fairly extensive knowledge of the enterprise in which you were involved.  Your first involvement is apparent from a later stage to that of Mr Cai’s, being 25 February 2020.  As set out in the prosecution submissions, you were involved in making arrangements on 25 February for the delivery of cash in exchange for the consignment and you also arranged for a third party, Bao, to rent a room intended to be used for the receipt of money.  Further, on 25 March, you effected the delivery of cash after you were told by 'Long Win' to release the money.  Again, you were acting on instruction from others.  However, you were involved at a significant level in the attempted possession of the drugs, although you were not as involved as Mr Cai.  You received instructions from Mr Cai at times but at others, you communicated directly with 'Long Win.'  I note that you were a party to the chat group 1 on the telegram messenger application with Cai and 'Long Win.'  It does not appear that Mr Shao was a party to this group chat, reflecting his lesser role in the enterprise.  You were entrusted to take custody of the $1.82m cash, although it is apparent that you were being monitored fairly closely, and it is evident that you did not know precisely how much money was to be paid; nor did you know whether the drugs were to be on-sold at wholesale or street level.

87Mr Shao, as the prosecution asserted, your role was significantly more confined than the role of Mr Cai or Mr Sun.  However, you still played an important role of which there is evidence from 23 March 2020 where you checked into Apartment 2710 of the Empire Apartments and on 25 March, you helped unpack and repack substances which you thought were drugs and helped with their delivery.  You acted under Mr Cai’s instructions.  Although the prosecution submitted that you were trusted to travel alone with the drugs in a taxi van from Gowanbrae to the Empire Apartments, I accept your counsel’s submission that Mr Cai was following you.  You did not have the level of autonomy or trust placed in you that Mr Cai or to a lesser extent, Mr Sun had placed in them.  However, your role in giving effect to the delivery of the drugs was an important one.  At the plea hearing, Mr Richter QC withdrew the expression contained in written submissions that you were a, 'Non-essential helper' and described you as an 'incidental helper who is needed to help in unpacking and carrying.'  He said that because of your position of not being entrusted at all, you were easily replaceable by other unemployed Chinese students, and I refer to transcript p.96.  He said that you only discovered at a very late stage as to what your task involved and the magnitude of what you were dealing with, such that it was really too late to opt out.  He pointed to the fact that you asked how many half-kilos (jin) on the day of the offending, which reflected your lack of knowledge as to the weight of the border controlled substance with which you had become involved.  He said that it was only at this late stage that matters began to crystallise in any sense and it was too late for you to pull out.

88Having considered Mr Richter's submissions in this regard and the evidence in this case, and I should add the learned prosecutor's submissions, I am unable to find on the balance of probabilities that you only fully realised at such a late stage as to what you had agreed to become involved in; nor can I find that you knew any earlier than 25^th March.  I simply cannot make a finding in this respect one way or the other.  However, I do not accept that you were readily replaceable by another unemployed student.  Clearly, you were sufficiently trusted by others to carry out your tasks in relation to the consignment, of what others believed to be a highly valuable consignment commencing with checking into the Empire Apartments on 23 March in circumstances where you lived elsewhere, and being involved in the delivery, unpacking and re-packing of the consignment two days later.  Apart from anything else, you must have been trusted to maintain secrecy about such
high-stake activities.

89It appears that you, Mr Cai and you, Mr Sun were happy for Mr Shao to accept the risk of carrying the drugs, distancing yourselves from this task which does not reflect well on your moral culpability.

90In sentencing each of you, I have taken into account that each of you have attempted to possess 87.5 kilograms of methamphetamine, which is 116 times the commercial quantity threshold.  Whilst the weight of the drug which you attempted to possess is not a predominant consideration in sentencing you, it is still an important one and relevant to my assessment of the objective seriousness of the offending.  In saying this, I am also most mindful of the fact that none of you knew the precise quantity or nature of illicit substance to be possessed by you.  However, as has previously been observed, each of you were aware as to the significant scope of the importation, even if the stage of your awareness, Mr Shao, cannot be pinpointed.

91Each of you are youthful offenders.  The prosecution has referred me to DPP (Cth) v Hoang [2018] VSCA 86, where in relation to an attempted possession of a commercial quantity of cocaine by the appellant when he was 20 years old, the Court said:

'[36]  One cannot, however, lose sight of the fact that the two offences that the appellant committed each carry maximum sentences of life imprisonment; or that the appellant attempted to possess, and actually possessed for the purposes of sale, very substantial quantities of cocaine, valued — whether at wholesale or street level — at millions of dollars.  The appellant played a principal role in a criminal enterprise concerned to import large quantities of cocaine into this country and to sell it for substantial profit.

[37]  In this regard, it must be remembered that the propositions in Mills are intended to be general only, the considerations underlying the primacy of youth as a factor in sentencing being: first, the offending may have been the product of youthful immaturity, reflected in the offender’s lack of insight or self-control; secondly, a youthful offender may be more amenable to rehabilitation than a more mature offender; and, thirdly, incarceration in an adult prison is calculated to impede, rather than advance, a youthful offender’s rehabilitation.  As the degree of seriousness of relevant criminal conduct increases, however, the mitigating effects of an offender’s youth will decrease.  Hence, generally speaking, where the degree of criminality of an offence requires deterrence, denunciation, just punishment and protection of the community to assume prominence in the sentencing equation, the weight to be attached to youth is reduced correspondingly (although not wholly extinguished).' 

92In sentencing each of you, I have had regard to this statement of general principle, as I must.  Certainly, strong weight must attach to general deterrence, denunciation and just punishment in each of your cases, although the terminology in respect of punishment is slightly different in the Commonwealth regime - that is, the punishment must be adequate.  In relation to protection of the community, I will deal with this factor a little later on.  I am also mindful that the appellant in Hoang played 'a principal role' in that particular enterprise and committed two offences.  That does not take away from the general principles however. 

93I have already made assessments of the roles that each of you had in respect of this enterprise and there can be no doubt that your offending is most serious, especially yours, Mr Cai and Mr Sun.  As it appears that deportation is probable in respect of each of you, it was submitted by Mr Richter QC that protection of the community and specific deterrence were not relevant considerations in this matter, as, upon your deportation, you will no longer be in our community of Australia.  Firstly, I do not accept that deportation is inevitable in each of your cases although I accept that it is probable. There are rights of review and an appeal process available to each of you in respect of such a directive.  Secondly, I have not been able to find authority for Mr Richter’s submission -nor is there any provision in the relevant legislation which excludes people in your situation from consideration of these sentencing factors; thirdly, strong reliance is placed on your prospects of rehabilitation, which is a consideration that is very much tied to considerations of specific deterrence and protection of the community; in any event, at the very least, each of you will be in the gaol community here in Australia in the meantime, and in the absence of any clear authority or legislative provision to the contrary, I do not accept that protection of the community or specific deterrence are not relevant in each of your cases.  Having said all of this, for reasons that I will later explain later on, the weight that will be attached to specific deterrence and protection of the community will be fairly minimal.

94However, general deterrence, denunciation and just punishment (which the prosecution submits ought be stern in nature) are most important sentencing factors.  At the end of the day, although strong weight must be given to general deterrence, denunciation and just or adequate punishment, I do not accept that the weight to be attached to your youthfulness as a matter in mitigation, ought be 'greatly' reduced, nor can I give it primacy in sentencing you.  In my view your youthfulness is still an important factor in sentencing you and I have done what I can to maximise your chances of rehabilitation whilst giving appropriate weight to the other sentencing factors that I have referred to.

95In sentencing each of you, it is accepted that at the completion of your sentence, deportation is, it was said, virtually inevitable.  As I have said, in my view, it is probable. Therefore, in your cases, Mr Cai and Mr Sun, I have made allowance for the fact that imprisonment will be more onerous because of your anxiety about the prospect of deportation and the loss of your opportunity to settle permanently in Australia in circumstances where each of you had an expectation to do so, and had lived here for a considerable period.  You, Mr Shao do not make the same submission, as you are anxious to return home to China.  Therefore, I do not make a similar allowance in your case, for this reason but I will return to your situation and the question of hardship in gaol, in due course.  

96None of you have a criminal history or any subsequent matters and each of you have expressed remorse in respect of your offending.  In each of your cases, it is your first time in gaol and each of you have been on remand for a substantial period already, not knowing the sentence that you would receive.  Your time in custody has been especially burdensome due to the various COVID-19 restrictions which have impacted on you, including your ability to have face to face visits, and your ability to undergo courses at times.

97Each of you have provided impressive character material from people who know you and each of you have also provided letters which indicate that you have expressed appropriate remorse and of otherwise good character.  I accept that each of you are of otherwise good character which bodes well for your prospects of rehabilitation.

98In sentencing each of you, I allow for a significant discount in the sentence you would otherwise receive due to the early stage at which you indicated a preparedness to plead guilty.  In doing so, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.  I have also taken into account that your preparedness to plead guilty at this time has extra utilitarian value in view of the Court’s challenges caused by the coronavirus pandemic.

99I also accept that it is indicative of your remorse.

100I will now address each of you individually, in turn.

Jintao Cai

101Jintao Cai, as I previously said, you had the most significant role of the three offenders before me.  I have previously described and assessed your role so I shall not repeat this. 

102Your personal background is as follows:

103You were born in Shenzhen, China, in February 2000 and you were 20 years old at the time of the offending.  You are now twenty-one.

104Your family in China was said to be a middle class, financially well-off family.  Your parents worked extremely hard and you and your siblings were raised by a succession of nannies which you found difficult, even though you spoke of one in particular as being caring, and who taught you a good deal about behaving in a moral and kind manner. 

105Initially, you came to Australia in 2011 to live with your brother and sister who were already here as students.  You are the youngest of the three.  Your sister is an Australian citizen and lives in Melbourne with her husband and three children.  Your brother now lives in China and is married with one child.  Your father lives in Shenzhen and owns a hotel business – the business has suffered because of the pandemic. 

106Your mother originally came to Melbourne in about 2012 to live here with you and your siblings.  Your father would visit Australia for holidays each year.  Sadly, your mother died of cancer in January 2018 having returned to China in late 2016 after her diagnosis.  You went back to China in 2017 for about 12 months in order to care for your mother while she was undergoing treatment.  While in China, you were living with your father and were enrolled in a chefs’ school.  After the death of your mother, you interrupted this study to return to Australia.  I understand that caring for your mother through her illness was most confronting and challenging, especially when she refused chemotherapy treatment. 

107After she passed away, you discovered that your father had been having an affair for a number of years with another woman and had two children from this relationship.  When you discovered this, your relationship with your father broke down and you felt disappointed and disconnected from him. I understand that your father cut you off financially which added insult to injury.  It was in this context that you returned to Australia to maximise the distance from your father. 

108In your letter to me you said that you began abusing drugs and alcohol to deal with your feelings of sadness.  You commenced associating with some friends that you knew through going clubbing – these people used drugs and alcohol frequently.  It was in this context that you became involved in the offending for which I now sentence you.

109Mr Dickenson of Queen’s Counsel submitted, (echoing the words of Mr Armstrong psychologist) that the 'tsunami of events' that confronted you, with your mother’s death and the discovery of your father’s affair, overwhelmed you.  You came back to Australia without any proper support other than some support from your sister; however, she had her own life and was unable to be sufficiently supportive.

110In terms of your education, you completed primary school in China to Year 5 and when you came to Australia you completed Grades 5 and 6.  You went to secondary school for two years at a private college then you moved to Balwyn High for Grades 9 to 10.  You stopped going to school at this stage and started working in the family restaurant in Blackburn as a kitchen hand.  You worked full time in this position until you returned to China to care for your mother, and you resumed working as a kitchen hand in the family restaurant when you came back to Australia.

111You began experimenting with alcohol and cannabis when you were 15 to 16 years of age and your cannabis use continued until your remand, with you smoking continuously each day.

112Since being on remand you have been studying maths, English and Engineering and have engaged with a senior education officer at Ravenhall who is helping you with your application for higher education.  I understand that you are intending on enrolling for a Bachelor of Arts degree with a major in animation and game design through Curtin University.  You are likely to commence university at some stage this year.  You have also undertaken a number of courses in custody evidenced by certificates which were tendered at the plea hearing. 

113I was told that you have been drug-free whilst in custody, which is confirmed by regular testing, evidenced by urine screens tendered at the plea hearing.  You voluntarily engaged in treatment whilst in custody, repeating the program 'Motivating Affect Self-Control Program' three times.  This involved 20.5 hours of treatment and assessment which occurred between December last year and March this year.

114In your letter to me, you say that it was a huge wakeup call when you were arrested which caused you to realise the seriousness of what you had done and of the consequences that would ensue. 

115In sentencing you, I also take into account in a general way the psychological report prepared by Mr Luke Armstrong, consulting psychologist, dated 23 December 2020.  He assessed you over a four hour period on one occasion and for one and a half hours on a second occasion.  There is no impairment of mental function which would warrant a reduction in your moral culpability.  Mr Armstrong said that you presented as:

'… a passive, dependent young man.  His personality is retarded and underdeveloped as a consequence of developmental, emotional neglect.  Dependency problems as a feature of chronic personality disorder became entwined with a pattern of early substance abuse.  Mr Cai’s alcohol and drug dependency problems emerged, as is often observed in the trajectory of early substance abuse, as a form of self-medication.' (page 5)

He went on to say that your many personality flaws exposed you to the influence of more sophisticated offenders and that he suspected that you:

'experienced chronic dysphoria as a feature of a deprived and neglected personality.  In the absence of early corrective attachments, (you) developed surrogate attachments on older, more devious peer groups.'  (page 5)

116He said that you were and remain impressionable, that you quickly developed a distorted view of substance abuse and that you remained ambivalent to the problematic nature of cannabis dependency.  He said that a culmination of factors in his view influenced you to commit the offence now before me.  He said that after your mother’s death and breakdown in the relationship with your father, you 'became unrealistically preoccupied with fears of being left to take care of (yourself).'  He said that you became preoccupied with your own survival and he also suspected that cannabis intoxication amplified your distorted judgments in this regard.  He said that in this context you gravitated to older more influential offenders and had difficulty in making decisions without their influence.  He said that you sought to avoid disappointing these individuals for fear of losing their approval.

117He said that your cannabis abuse disorder remained in early remission but that your age was a window for early intervention, noting you had agreed to take part in an in-custody treatment program.  He predicted that taking part in such a program would improve your mental state and reduce your deviant beliefs which underpin your addiction.  The program which he detailed is the MASC program to which I have repeatedly referred and which you have repeatedly undertaken. 

118In a further report dated 16 March 2021, Mr Armstrong noted that you had now repeated the MASC program three times.  He said:

“Mr Cai participated in an intensive AOD program and achieved all of the outcomes that would be associated with an improved rehabilitation prognosis.  Whilst Mr Cai immersed himself within the minutiae of drug use and drug related offending, deviance is not entrenched with your client.  He is still very young and with continued support, in particular during Parole he will remain a low risk of reoffending.  However, I am concerned that considering his damaged personality and young age he will present as a vulnerable prisoner and in view of this opinion any lengthy sentence period would be adverse to your client’s rehabilitation and reformation.'  (page 2)

119Although your level of insight as to the seriousness of your offending, in my view, insofar as it had the potential to affect others, is a work in progress.  It appears to me that you have made a number of positive steps in this regard, which is a matter in your favour.

120I also accept that you have suffered additional hardship due to the various restrictions you have encountered because of COVID-19.  The particular hardships that you suffered was the deprivation of personal visits which were suspended for most of 2020 as well as partial and full lock downs which were in place from time to time.  There was also a reduced program and service delivery, although it appears that despite this, you managed to engage in a significant number of programs.  I understand that you were only allowed to have one in-person visit for the entirety of 2020.  Your sister visited you in December last year once the restrictions eased.  Otherwise you were able to have video calls three times per week for half an hour for each call.

121In view of your offending, but factoring in your otherwise good character, your remorse, developing insight, and positive steps whilst on remand, I assess your prospects of rehabilitation as very good, and I place minimal weight on specific deterrence and protection of the community.

122It was submitted that although an immediate term of imprisonment was warranted due to the seriousness of the offending, in view of matters in mitigation which applied to you 'the term of imprisonment imposed ought be no more severe than is necessary to achieve the sentencing purposes', and that there should be a substantial gap between the head sentence and the non‑parole period.

123I shall return to you in due course, Mr Cai.

Haozhou Sun

124I now turn to you, Haozhou Sun.

125You were 18 years old at the time of the offending and you are now 19 years old.  I was told that at the time of the offending you were impressionable and immature.  Your parents separated in 2013 which, I was told, had a lasting effect upon you and that this provided the context for an ongoing addiction to cannabis.  I was told that your decision to commit the offence for which I now sentence you occurred when you were lacking in direction and were in the midst of an addiction, involved with a negative peer group.

126By way of background, I was told that you were born in Shanghai in April 2001 and grew up as an only child as a result of China’s one child policy.  Like Mr Cai, you were brought up in a 'middle class' family where your mother stressed the importance of education and your father worked long hours in the information technology industry. 

127You had a happy childhood, enjoying school, friendships and playing the piano.  You also attended drawing classes on weekends. 

128I was told that in Year 4, when you were aged 10, you played the clarinet for one year, performing at concerts and school events.  In Year 5 you were appointed class captain and you had a positive attitude towards study, producing good results and awards at school.

129In 2012, your parents decided to move to Australia, partly to pursue educational opportunities for you.  You were 11 years old at the time.  Your father came to Australia a year earlier in order to pursue an on-line business, selling homewares.

130You have a larger extended family in China and you maintain a relationship with all four of your grandparents, who you have visited regularly since moving to Australia.  Your grandparents are aware of your incarceration, because you told them about it and they have written to you whilst you have been in custody.  You are the only member of your family who has been in trouble with the law.

131When you moved to Australia, your family struggled because of their lack of English and due to minimal support.  Your mother pursued work with an aged care facility.  Your family lived in the Balwyn area, although always in rental accommodation and usually in shared living arrangements. 

132When you arrived in Australia, you attended the Blackburn English Language School for a six month period.  You graduated from the course and you were the only student to perform a speech in front of your teachers and peers, indicating that you were a bright student.

133You were enrolled at the Boroondara Park Primary School in Balwyn North which was a mainstream school with very few Asian students.  You struggled socially and were subjected to bullying because of your language skills and country of origin.

134In 2013, your parents separated acrimoniously, and your father later returned to China.  As previously noted, the separation and subsequent divorce of your parents had a devastating effect on you, leading you to feel isolated and destabilised.  I understand that you continued to feel great shame because of the split of your family unit, and you have struggled with your father leaving you and your mother without warning.

135After your parents’ separation, you and your mother moved into shared accommodation.  Your mother was working six days a week in a bid to provide financial support.  You continued to support her as best you could - you had a very close relationship with her and greatly respected her.  This is evidenced by references tendered on your behalf at the plea hearing.

136You commenced high school at Balwyn High School.  Your mother re-partnered, and you are particularly close to your stepfather who provided a reference in support of you at the plea hearing. 

137You were also assessed by Mr Luke Armstrong, psychologist, who was of the view that your adolescent development was interrupted by your parents’ marital breakdown and that you appear to have experienced mental health problems after this.  Like Mr Cai, it would appear that you turned to cannabis as a form of
self-medication, commencing to use this when you were 16 years old.  Your cannabis use escalated quickly in the context of mixing with a deviant peer group.

138You met Mr Cai at Balwyn High School – Mr Cai was in the year above you, but you quickly bonded and remained friends in the ensuing years.

139Your escalating drug use impacted upon your schooling with you leaving school at the beginning of Year 11 in order to pursue employment.  You undertook employment at a restaurant in Blackburn after school hours.  You were also motivated to work in order to contribute to the household.

140You attended TAFE and completed a Certificate II in Electro Technology, hoping to obtain an apprenticeship as an electrician.  You also completed courses in first aid and occupational health and safety.  However, you were unable to obtain an apprenticeship and you were using cannabis regularly.  You were in receipt of Centrelink benefits and lived at home with your mother, stepfather and a student.  It was in this context that you were approached and asked whether you wished to become involved in the offending for which I now sentence you. 

141I have already made sentencing remarks in relation to your role in the offending, which was a significant one, albeit that it was slightly lesser than that of Mr Cai.  I have read the letter that you have written to the Court and I have factored in other references.  Like Mr Cai, I accept that you are of otherwise good character and I accept that you are remorseful for your offending, although this must be seen within the context of someone who is still immature.  However, in your letter you told me that you have come to more fully realise how drugs can ruin other people’s lives since being on remand, engaging in relevant courses and programs, and mixing with other prisoners.  It seems that you had a superficial understanding of this before being incarcerated but now accept, with 'disappointment' to quote you; that your offending was part of an evil trade that undermines 'social cohesion and progress' to quote you again.  

142Mr Tehan of Queens Counsel told me that prisoners on remand were not entitled to emergency management days which, as I understood his submission, added to your hardship in prison and the extra utility of your plea of guilty during Covid times; I made some enquiries with the relevant prison authority, and had my associate email the parties in this respect, inviting further submissions.  In the end, it appears that you and your co-offenders may well be entitled to emergency management days from your respective periods on remand but this is not assured, and even if applied in each of your cases, I was advised by the Prosecution that under the Commonwealth sentencing regime you could only have such benefit applied to your head sentences.  As the position is somewhat speculative, I am unable to take this aspect into account in the way agitated for by Mr Tehan, save that, I have made very limited allowance for the fact that you are each in a potentially poorer position in respect of emergency management days than prisoners who are sentenced for State offences.  Lest it be said otherwise, at no time was I of the view that emergency management days could be factored in by way of pre-sentence detention or otherwise - the enquiries that I made were in respect of the discrete points sought to be made by Mr Tehan.

143As I have previously said, I have made an allowance for hardship due to the fact that deportation is probable after you have served your sentence, in the ways that I previously explained.  Having said this, as I noted at the plea hearing, it appears that you have extended family to look to when you return to China, although I accept that you are closest to family members here, being your mother and stepfather.

144In your case, you were released on bail for about one month, then returned to custody following a Crown appeal as I understand it which saw your bail revoked in the Supreme Court.  No doubt, that was particularly difficult for you.  I was told that due to COVID-19 restrictions you have only been able to have in-person visits from your mother on three occasions in the past year.

145I take into account the report of Mr Luke Armstrong in a general way.  He was of the view that you were suffering from features of a borderline personality disorder and as meeting the criteria for a cannabis use disorder which is now in early remission.  You are impressionable and immature which makes you vulnerable in adult prison.  Having said this, there is evidence before me which suggests that you are maturing in your outlook including your attitude towards your offending.

146I understand that you have been abstinent from cannabis whilst you have been in prison and you have also undertaken appropriate courses whilst on remand, completing the MASC program on three occasions.  Like Mr Cai, Mr Armstrong was impressed with your improved capacity to express yourself after completion of the programs and your insight and self-coping mechanisms had improved.  These are all matters which are positive in terms of your prospects of rehabilitation. 

147I have also factored in the courses that you have been able to complete whilst in jail. 

148I understand that you have applied to pursue tertiary studies whilst you are incarcerated.

149In view of your otherwise good character, your remorse and developing insight, and your steps toward rehabilitation but also having regard to your immaturity and the nature of the offending in which you chose to involve yourself, allowing that you are appearing to now mature somewhat, I assess your prospects of rehabilitation as being very good and I will place fairly minimal weight on specific deterrence and protection of the community. 

150As was the case for Mr Cai, submissions were made in respect of current sentencing practice and I will come to these in due course.

Runxiang Shao

151I now turn to you, Mr Shao:

152As I have said, your role in the offending was a far more limited one than that of either of your co‑offenders.  I have also factored in that you were, and are, lacking in maturity, which is reflected in the psychological assessment of Mr Patrick Newton who provided a report dated 14 March 2021.

153At the time of the offending you were 18 and a half old, and you are now 19, such that youthfulness is also an important consideration in your case.

154I take into account the report of Mr Newton in a general way in circumstances where it is not suggested that you were suffering from an impairment of mental function which might serve to reduce your moral culpability or the weight to be placed on other relevant sentencing considerations.

155I factor in Mr Newton’s findings that you are experiencing elevated anxiety in respect of your current predicament.  You are also concerned about the prospect of a lengthy separation from your family and for your future.

156Mr Newton found that a review of your history suggested longstanding deficits in your stress-management skills which underpin a vulnerability to experiencing relatively intense responses to emergent stressors.  You resorted to drug use from the age of fourteen in a bid to self-medicate, firstly imbibing nitrous oxide and then cannabis.  However, as is often the case, the substances only served to exacerbate your problems in the longer term.

157Mr Newton said that your anxiety-related symptoms were not sufficiently severe to warrant a diagnosis of a mental disorder, and there was no indication that you were suffering from any mental disorder at the time of the offending.

158He found that your psychological functioning indicated that you remained immature for your age and that your demeanour and sense of identity was poorly formed compared with peers of a similar age.

159He said that you are very dependent upon those around you for direction and that you were prone to follow the lead of others who impressed you.  He also said that while your personality adjustment was immature, it was not disordered and there were no indications of pervasive psychological disturbance.

160Mr Newton said that you expressed empathy for prisoners who are suffering the effects of drugs and you were able to generalise from this to express regret for your offending conduct.

161Mr Newton said that you could receive appropriate direction and support to shape the maturational process which would have the potential to overcome your challenges so that you could develop into a healthy adult.  However, he was concerned that prolonged placement in custody could leave you relatively vulnerable to negative influences from more hardened criminals.

162He said that you would not meet criteria for any anxiety-related disorder, mood disorder, or adjustment disorder, at this time.

163Further, there was nothing to suggest that you were labouring under the effects of any such disorder at the time of the offending, or that the anxiety that you were experiencing at the time was sufficient to affect your reasoning, judgment, or decision-making skills.

164Mr Newton considered that you were at high risk of relapse into nitrous oxide use once you were released from custody, due to your poor level of insight into the risks associated with it.  He opined that your use of nitrous oxide was sufficiently severe to warrant a diagnosis for a nitrous oxide use disorder of moderate severity, and there was a clear need for you to take part in drug education and counselling.  Further, he found that your cannabis use would warrant a diagnosis for cannabis use disorder of mild to moderate severity.  Mr Newton was of the view that you were a naive young man whose development towards adult maturity had been slow before being derailed by the offending.

165He said that it would be clearly beneficial if the influence of more hardened antisocial individuals in your life could be kept to a minimum.  He said that your rehabilitative needs would be best served by way of a placement in a youth justice setting, and that you would benefit from some counselling to improve your stress management and coping skills.  He also suggested that education and vocational training may well help you in your return to the community, whether this be in Australia or in China.

166I have read a letter from your mother and a letter from Ran Hong, who is a family friend who has also acted as an interpreter and translator for you at times in relation to this matter.  He and your mother speak of the dreadful distress that your family have felt since learning of your offending.  Your mother also has spoken of your regret and recognition of the damage that drugs cause in society.  She spoke of the family support that you have and said that your offending was out of character and a very serious mistake on your part.  She was confident that you would never offend again and would become a good member of the community.

167I accept that you have expressed contrition and are developing insight into the seriousness of your offending, insofar as it had the potential to negatively impact others.  I have also factored in that you regard your conduct as having brought shame upon yourself and your family.  These are all matters which are relevant to your prospects of rehabilitation and the weight which needs to be attached to specific deterrence.

168I have also taken into account the particular ways in which the COVID-19 restrictions have affected you and may affect you in the future.  You have had to undergo 14 days’ quarantine and have been the subject of a full lockdown of seven days during your time in custody.  You have been able to communicate with your family in China through FaceTime.  You are able to have such contact for two hours per week with your mother and any other present family member, as well as with your former girlfriend. However, due to COVID-19, your family has been unable to come to Australia to visit you and you do not have the level of family and friendship connections that the other two offenders have.  Therefore, your time in custody has been and may well continue to be harsher than might otherwise be the case.

169I understand that you are presently with other prisoners who speak Mandarin, and it is to be hoped that the future arrangements will cater for your need to be able to communicate with others, as your command of English is poor.  I also understand that you do not speak Cantonese. I understand that whilst you have been in custody, however, you have been engaged in mathematics and English classes, and have also completed a certificate course in cleaning operations and have performed cleaning work at the prison.

170Mr Richter told me that you were going to use your time in gaol as productively as you could, so you are best equipped to pursue a future in China when you are able to do so.

171You have returned four negative urine screens which were tendered at the plea hearing, which is to your credit; however, the challenge will be for you to continue to abstain from drugs when you are released.

172I take into account your background, which is set out in Mr Newton’s report and was not particularly fleshed-out at the plea hearing.

173You were born in Beijing, China.  You have two younger siblings and two older siblings who are your father’s children from a previous relationship.

174In your early years, your family enjoyed a good deal of prosperity with your father working as a property developer and your mother operating kindergartens.  Your parents had been very strict with you, and you would be harshly punished for lack of focus on your studies.  However, your older brothers did what they could to protect you and support you.

175Your parents’ relationship became increasingly difficult, and they ultimately separated when you were in your mid-teenage years.  You only learnt of your father’s departure from the family by accident.  After your parents’ divorce, you stayed with your mother, seeing your father only once or twice a year.  Your family’s financial situation declined.

176You told Mr Newton that your general development progressed normally, and you had no significant childhood illnesses or injuries.  Since being on remand you have had video contact with your parents, and they and your older brothers have been supportive of you.  You will be able to return to your family in China when you are ultimately released from jail.

177In terms of your education, you attended primary and secondary schools near your home in China.  You have a functional literacy in your first language of Mandarin.  You were a poor student however, you had a good friendship group, some of whom you remain in contact with.  You completed the equivalent of Year 11, but your marks were not high enough to go any further at school.

178You decided to travel to Australia to study, arriving here on a student visa in July 2018.  You undertook some English language studies, then enrolled in Year 10 at a grammar college in North Melbourne.  At first you stayed in a homestay, but shortly after this you moved to live independently.  You found your studies very difficult, struggling to grapple with the English language, which negatively impacted on these.  You failed most subjects in a Year 11 program, but you were in the process of enrolling in Year 12 studies when you were arrested.

179You spent time in China in each of the school holidays.  You had not been employed in Australia or China.  Since your remand, you have worked as a cleaner within the prison and have completed some TAFE-level training in cleaning.  You are hopeful that you will improve in your English during the time that you are in custody, and also develop some employment skills.

180You have had one relationship – this was with a young woman that you met in 2019, however she has since returned to China and the relationship ended at some stage during your remand.

181In all the circumstances, I find that your prospects of rehabilitation are very good, and I only need place minimal weight on specific deterrence and protection of the community. 

Parity

182Mr Cai, you are in the most serious position in respect of your offending.  You were the oldest and the most involved - in that you were involved for the lengthiest period and were in the most trusted or senior position amongst the three of you.  You, Mr Sun were somewhat younger than Mr Cai and you were less involved in the offending than Mr Cai in terms of duration and nature of offending, but you were substantially more heavily involved in the offending than Mr Shao.  Your level of involvement and role was a good deal closer to that of Mr Cai’s than Mr Shao.  Mr Shao, you were the youngest of the three offenders and had limited involvement and no autonomy in respect of the offending.  You were also exposed to the most risk of detection.  In terms of parity, then, you are in the least serious position, substantially less than the position of Mr Sun.

Sentencing Practice

183The prosecution provided me with a table of cases in a bid to assist me with current sentencing practice, and I have heard their submissions in respect of these.  Defence counsel also referred me to particular cases, and I have considered their submissions in respect of current sentencing practice.

184Although there is no case that is identical to yours, and, I was told you are the youngest offenders to be dealt with for such offending, I have factored in, so far as I can, some of the cases which best inform me as to current sentencing practice, but I have also borne in mind that this is but one consideration, and not a controlling one.

185The prosecution submitted that in each of your cases, a substantial term of imprisonment was warranted, reflecting stern punishment which they said was required in this case.  They submitted that principles of general deterrence and denunciation were primary considerations in sentencing for the offence that you have committed, and that such considerations would generally outweigh subjective circumstances, particularly in the determination of the total sentence.  In support of these propositions they cited Wong v R per Gaudron, Gummow and Hayne JJ at [64] and Parris v R [2013] NSWCCA 5 at [35]. As the prosecution submits, this is largely because of the difficulty in detecting offending such as yours, and the 'great social consequences that flow from the movement of such drugs in to Australia and their distribution within Australia' (again Wong v R at [64]). In their written submissions, the prosecution said:

'Consequently, as a general principle, those who are involved at any level in the importation of a border controlled drug into Australia should know that they run the risk of incurring a substantial sentence if they are apprehended'”

186In support of this submission, the prosecution cited Maxwell P in Nguyen v R; Phommalysack v R [2011] VSCA 32; (2011) 31 VR 673 at 695–696 [34].

187Counsel for each of you acknowledge the seriousness of your offending and that your offending warrants a gaol term involving a head sentence and non-parole period.  Each counsel submitted that there should be a lengthy gap between the head sentence and non-parole period, and Mr Richter submitted that in view of your limited role, Mr Shao, that your sentence ought be significantly less than either of your co-offenders.

188In response to Mr Tehan’s submissions that the head sentence and non-parole period imposed on you Mr Sun ought be in single figures, the learned prosecutor submitted that sentences for you, Mr Cai, and you, Mr Sun, ought involve head sentences which were double figures, indicating that anything less than 10 years would be inadequate, and that a non-parole period for each of you, Mr Cai and Mr Sun, ought not be significantly less than double figures.  The learned prosecutor appeared to accept that your sentence, Mr Shao, ought be significantly less than that of Mr Cai or Mr Sun.

189In my view, justice can be done to all relevant sentencing principles and the weight that needs to attach to them by imposing head sentences which reflect the need to strongly denounce your conduct and to give strong weight to general deterrence and punishment; however in view of the matters in mitigation, and in particular, your young ages and very good prospects of rehabilitation, I intend to impose a non-parole period in each of your cases which will reflect a substantial gap between the head sentence and non-parole period.  Your offending is serious indeed but I do not accept that the weight to attach to your youthfulness is diminished to a point where it is not still an important factor and I must still do what I can to maximise your chances of rehabilitation, whilst giving appropriate weight to all other sentencing considerations - this can best be achieved by imposing appropriate non-parole periods with substantial gaps between these and each of your head sentences.

190In each of your cases, in my view it would be highly desirable for you to spend whatever part of a sentence that you can, in a Youth Justice Centre before having to be transferred back to adult gaol and I recommend that this occur if at all possible.

191Please stand up.

192Each of you are convicted of the charge against you.

193I make the forfeiture orders sought by the prosecution and which are not opposed by each of you.

194You, Mr Cai, are sentenced to 11 years’ imprisonment with a non-parole period of six years.  I declare that you have served 418 days by way of pre-sentence detention.

195If not for your plea of guilty I would have sentenced you to 14 years' imprisonment with a non-parole period of 11 years.

196You, Mr Sun, are sentenced to 10 years’ imprisonment with a non-parole period of five years. I declare that you have already served 390 days by way of pre-sentence detention.

197If not for your plea of guilty I would have sentenced you to 13 years' imprisonment with a non-parole period of 10 years.

198You, Mr Shao, are sentenced to five years’ imprisonment with a non-parole period of two years six months.  I declare that you have already served 418 days by way of pre-sentence detention.

199If not for your plea of guilty I would have sentenced you to seven years' imprisonment with a non-parole period of four years.

200In each of your cases, your sentence starts today.

201Take a seat please.  Is there anything arising gentlemen?

MR DARBY:  Your Honour, I have copies of the forfeiture orders to be signed.  I am not sure if that has previously been provided. 

HER HONOUR:  All right, yes, I have signed those.  Is there anything arising?  No?

MR MANNING:  No, Your Honour. 

MR DICKINSON:  No, Your Honour.

HER HONOUR:  Does anyone want to have a word with their client with the assistance of the interpreter before they are taken downstairs. 

MR DICKINSON:  I would, Your Honour.

MR MANNING:  Yes please, Your Honour.

HER HONOUR:  All right.  Now I am just wondering if the custody officers would mind if I just left Bench for a moment while that happens. 

CUSTODY OFFICER:  No. 

HER HONOUR:  Thank you very much.  I will just stand down for a moment. 

MR DARBY:  Thank Your Honour. 

MR DICKINSON:  Thank you for that, Your Honour. 

MR MANNING:  Thank Your Honour.

HER HONOUR:  Anything arising?  No?

MR MANNING:  No, Your Honour, no.

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