Director of Public Prosecutions (Cth) v Lin
[2016] VCC 2016
•20 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01245
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PO-AN LIN |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 September 2016 |
| DATE OF SENTENCE: | 20 December 2016 |
| CASE MAY BE CITED AS: | DPP (Cth) v Lin |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2016 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – attempt to possess a commercial quantity of an unlawfully imported border controlled drug
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act1914 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:R v Le Cerf (1975) 13 SASR 237; Nguyen v R (2011) 31 VR 673; DPP v Wang (Unreported, County Court of Victoria, Judge McInerney, 8 July 2016); Wang v R [2016] VSCA 292
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms H. Loh | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Ms R. Avis (Plea) Ms M. Altman (Sentence) | Lethbridges Barristers & Solicitors |
HIS HONOUR:
1Mr Po-an Lin is thirty-two. He is a person who is in Australia on a working holiday visa. He pleaded before me on 23 September 2016 to one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, on 27 January 2016, contrary to s11.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty pursuant to such section is life imprisonment.
2Ms Loh appeared on behalf of the Commonwealth, Ms Avis appeared on behalf of Mr Lin at plea and Ms Altman appears on his behalf today. At the time of the plea, it was remarked that I sentenced the co-accused, Mr Wang, and that appeal was pending. The sentence I imposed on Mr Wang was one of ten years with a minimum period of seven years.[1] Such appeal has subsequently been heard, when Whelan JA refused leave to Mr Wang to appeal.[2]
[1]DPP v Wang (Unreported, County Court of Victoria, Judge McInerney, 8 July 2016).
[2] See Wang v R [2016] VSCA 292.
3It is important to remark that Mr Wang pleaded guilty to a rolled-up charge of importing a commercial quantity of a border controlled drug, which was an offence under s307.1(1) of the Criminal Code (Cth). The particulars of such crime covered five separate importations.
4Po-An Lin pleads guilty to an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, being methamphetamine, and the attempt, as I have already said, took place on 27 January 2016. The plea proceeded on the basis that it was undisputed that for a breach of s11.1(1), combined with s307.51, the maximum penalty, given the combination of both of those sections, is life imprisonment and/or a penalty of 7,500 penalty units.
5Such penalty clearly is an indication of the view with which both the Australian community and the Australian Parliament takes of the seriousness of such offences.
6Exhibit A was accepted by Ms Avis as the facts upon which I was to sentence Mr Lin. Mr Lin's sentence relates to three separate consignments, involving an unlawfully-imported border-controlled drug, with the consignee being Mr Wang, who I have already referred to.
7The drugs were consigned to the address where Mr Lin had resided since approximately May of 2015. He made an enquiry by way of phone to the Kyneton post office on 25 January 2016, and returned at 9.27am on 27 January 2016. He subsequently attended at 3.17pm and collected the three consignments, that I have referred to and as the summary details, then proceeded to take those items to Mr Wang's address in Melbourne. Of course, the reason why he is charged with an attempt is that the materials that he was picking up as a consignment were, in fact, and had been in fact, reconstructed by the Federal authorities.
8Given the circumstances of such offending, and the fact Mr Lin was under surveillance, upon the attendance of the Federal authorities upon Mr Wang's address in Melbourne, it was not long thereafter that Mr Lin was arrested, albeit that he had attempted to flee from that area, but he was arrested in A’Beckett Street shortly thereafter.
9Subsequently, Mr Lin entered into a Record of Interview on the evening of
27 January, which is set out in full detail in the summary at paragraph [22]. At paragraphs (f) and (g), he said that he had picked up the three packages at the post office, but did not know that there were commercial drugs in it; that he had picked up the packages for a friend, whose full name he did not know, and whom he had known for about a month, having met through a mutual friend when they had a meal together. In paragraph (h), that he had been asked by a friend to pick up the packages because the friend was busy, so could not go to the post office himself, it was easier for Lin to go, and Lin is his friend; Lin did not know why his friend could not go the following day, and; his friend's name was Chun Wang, who he called "Jeff".10Given the full circumstances and the surveillance and recorded conversations between Mr Lin and Mr Wang, I find those answers of Mr Lin totally unbelievable.
11As noted in paragraph (m) when, subsequently during the interview Mr Lin was shown a mobile phone, an iPhone 6, which he had used for communicating with Wang. In such communication, he had tracked the consignment numbers, having been sent the consignment numbers by Wang.
12In paragraph (bb) on page 9, Mr Lin said that Mr Wang, had never explained to him what was in the package, and that Mr Wang had never offered him any money for collecting the packages. I simply say I do not believe those statements.
13As proved to be the position, and as referred to, the three consignments which were ultimately consigned to Mr Wang contained within them 2.5 kilograms by way of pure weight, of methamphetamine. Such is three to four times the threshold for a commercial quantity of border-controlled drug, being 750 grams.
14The potential street value of such drug, not disputed by counsel on the plea, is estimated at between $2.4 and $3.2 million. If the penalties involved did not indicate the seriousness of this matter, clearly the amount and the values thereof demonstrate such.
15The plea was put on the basis that there was no evidence that Mr Lin was particularly aware of the commercial quantity but obviously, by his actions, had demonstrated gross negligence. And given that this is a strict liability case, he is liable and, indeed, has so pleaded.
16Mr Lin has served, by way of pre-sentence detention, 328 days, and he comes before the Court with no prior convictions.
17Insofar as the plea made by Ms Avis, she tendered to the Court Exhibit 1, which were the written plea submissions dated 21 September 2016.
18Insofar as to Mr Lin’s role, Ms Avis submitted, and there is no issue with this, that his role clearly was less culpable than the co-accused, albeit that the penalties are the same, clearly the co-accused's offence is more serious. Ms Avis made the following points as to his role: that there was no evidence to suggest Mr Lin ordered any of the consignments, such were not in his name, albeit to his address, and he was persuaded to use his genuine identification documents when he came to pick up the materials. It was submitted to the Court that there was no evidence that Mr Lin was aware of the actual quantity, nor had he been provided any details of the actual importations.
19As I said, Mr Lin maintained in the plea through Ms Avis, that he, as he had said in the Record of Interview, was not collecting the parcels for financial reward, but to assist a friend. As I have said, I do not accept that proposition.
20By way of his personal circumstances, it was noted that Mr Lin left full-time education at the age of twenty-two, that after university had worked and in fact came to Australia on the working visa that I had referred to, on 22 April 2014.
21Mr Lin has worked at various labouring-type occupations, and as I said, he had worked at the meat factory that has been referred to. It was suggested that he met Mr Wang when working at the meat factory, and he regarded Mr Lin, certainly in the past, as a friend.
22Insofar as imprisonment is concerned, Ms Avis put to the Court the impact upon him not having English as a first language, and the difficulties such would cause, making imprisonment more onerous, which I accept. He has apparently done well working in the horticultural section of the Metropolitan Remand Centre, and he is somewhat isolated given his English issues.
23It was put that this is not a situation where a person has come from overseas for a specific purpose, but Mr Lin was here on the working holiday and made the unwise decision to be involved. It is clear that upon release he will be deported given the seriousness of this crime. However, in this particular case it was, I am told, always his intention to return to Vietnam.
24I accept the importance of the plea of guilty as demonstrating Mr Lin’s willingness to facilitate the course of justice. He has no priors, and as was put to me in submission, he is particularly sorry for the state that he finds himself in, as are his family, as demonstrated by Exhibit 2, which is the letter forwarded to the Court asking for mercy by his sister, Gina Lin.
25It was submitted that in the circumstances there is no reason to suspect that Mr Lin would not effect rehabilitation after suffering appropriate punishment, the importance of general and specific deterrence was of course noted, albeit the need for balancing this against the mitigatory matters that have been put to me.
26By way of the oral plea, as I have said, both exhibits were tendered. It was put to the Court that this was an early plea. It could not have been much earlier, obviously. It was put that I should take the view, and there did not seem to be any dispute about this, that Mr Lin was certainly at a lesser level of culpability than Mr Wang, that he was not a courier, but really an assistant of Mr Wang. He played an active role in collecting the product, but was certainly not the primary organiser, and had gone to the post office on the two occasions. It was accepted by Ms Avis that jail was inevitable, despite his prior good character, and it was also put to the Court that he had no drug issues himself.
27In response, the learned prosecutor put to the Court, tendered as Exhibit B, the Crown submissions on sentence. The matters put were generally the matters recorded in the Federal sentencing scheme in the Crimes Act1914 (Cth), in particular s16 and s17 thereafter. The maximum penalty was referred to, as was the role of the offender. Mr Lin is a person who clearly acted and committed these crimes at the behest of Mr Wang. I sentenced Mr Wang in the circumstances, given the information relating to Mr Wang, and I described him as a "key intermediary" in his importing charge.
28Equally, I sentence Mr Lin as a person who assisted the key intermediary, not in the sense of assisting him in the importing, but simply assisting him in picking up these drugs from the post office. It is important to note that he was not involved in any way in the importation itself. The matters were accepted at the plea. There is no evidence that he was actually aware of the precise amount or type of drug.
29However, as I indicated in the sentence of Mr Wang, the fact is that the Courts have taken the view that any person performing any role with drugs of this magnitude must expect condign punishment. Such is referred to by Wells J in R v Le Cerf (1975) 13 SASR 237, 239 to 240, and proposition three of Maxwell P's determination in Nguyen v R (2011) 31 VR 673, in particular at 681 to 683, that I referred to in the sentence of Mr Wang.
30Insofar as the determination of Wells J is concerned, I refer in particular to [40] of Le Cerf, where the Court spoke about the failure of Courts generally, and the authorities, to be able to find the persons at the top of these of syndicates. It also spoke of how a Court must sentence recruits who are involved in such syndicates committing these crimes, his Honour said as follows:
“It seems to me to follow that after making all due allowance for the personal circumstances and antecedents of the prisoner, the facts of the particular case, and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organization for purveying drugs, as well as to potential recruits, the simple truth, that a man who participates in such an organization at any level — I repeat at any level — must expect, and will receive, a heavy penalty.”
31The matter that Courts always refer to, and was referred to by the President in Nguyen, is the question of motive. Here, as I have said, I have rejected the proposition put to me by Ms Avis that there was no financial motive. It seems to me totally without sense and, indeed, nonsensical for any person to come before this Court and suggest they have taken such grave risks to their liberty without it being done for financial motivation.
32I am unsure precisely what the reward was here, I just have no indication as such, but I repeat the comments made by the President in Nguyen at point eight, where he said at [68] (albeit related to an importation charge):
"The sentence to be imposed for a drug importation offence had to signal to would-be drug traffickers that the potential financial rewards to be gained from such activities were neutralised by the risk of severe punishment.”
33As I said in Wang, it is the hope of all Courts that in sentencing, the deterrent effect can have the impact referred to by his Honour. However, of course the reality is that there are people who are unfortunately tempted, in particular, like Mr Lin in this case. It is, however, the hope of the Court that sentences passed, given their degree, will have a neutralising effect, if possible, upon future commission of such crimes.
34The final commentary I want to make is similar to what I made in Wang. The balancing of these factors is always difficult. Here is a relatively young person who has been in this country without having any prior offences and no indication he has ever been involved in criminal activity before, now before the Court facing a very severe sentence.
35To be balanced against those matters, however, are major considerations apart from the totality of the matters that I have referred to, set out in the Crimes Act (Cth) and in the Criminal Code (Cth). Those considerations are general deterrence, denunciation, and of course, specific deterrence.
36As I have said, there is a need for condign punishment to effect those principles in cases of this type.
37Insofar as sentencing you, albeit the sentence you are facing being the same as Mr Wang, there are major differences, as I have detailed. You were assisting him, that assistance was essentially, as far as the criminality is concerned, for one day only. Your role certainly is nowhere near as serious as his was. But, as I have been at pains to point out, you did willingly accept the risks of being involved in this type of activity.
38Doing as best as I can to take into account the differences in criminality, albeit they are two different charges, and the difference in roles, I have determined to sentence you to a period of imprisonment of five-and-a-half years. Pursuant to s19AB of the Crimes Act (Cth), I order that the non-parole period to which you should be sentenced is a period of three-and-a-half years.
39I declare that, pursuant to s16E, the 328 days that you have served to date are deemed to be service of this sentence.
40Ms Altman, I want to make clear to your client the provisions of s6AAA of the Sentencing Act 1991 (Vic), in the sense that it is accepted that those provisions apply to Commonwealth sentencing. The discount for your client pleading guilty is important for him to understand. Had he not pleaded guilty, I would have sentenced him to a period of imprisonment of seven-years-and-four-months, not the five-and-a-half-years that I have sentenced him to. And the minimum period by way of non-parole period that he would have had to serve had he not pleaded guilty, would have been a period of five-years-and-eight-months.
41Hence, as a result of him pleading guilty, his sentence is one of five-and-a-half years maximum penalty, three-and-a-half-years to serve before being eligible for parole, and the period of pre-sentence detention agreed today of 328 days is deemed to be part service of that sentence.
42MS ALTMAN: May it please, your Honour.
43HIS HONOUR: And I declare that such declaration is to be recorded in the records of this Court.
44Now, Ms Loh are there any other matters that I need to attend to?
45MS LOH: No, your Honour.
46HIS HONOUR: All right, thank you both for your attendance, Ms Altman and Ms Loh.
47MS ALTMAN: May it please your Honour.
48HIS HONOUR: All right, well good luck Mr Lin. Hopefully the matters put to me by your counsel that you effect your rehabilitation prove to be true. Thank you.
49MS ATLMAN: May it please the Court.
50MS LOH: As your Honour pleases.
‑ ‑ ‑
2
3
0