Director of Public Prosecutions v Chan
[2020] VCC 529
•26 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01876
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKIE CHAN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2020 | |
DATE OF SENTENCE: | 26 March 2020 | |
CASE MAY BE CITED AS: | DPP v Chan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 529 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Trafficking in drugs of dependence in a quantity not less than a commercial quantity – cocaine – 3,4-methylenedioxy-N methylamphetamine – trafficking constituted by a single day – possession of a drug of dependence – cannabis – Clonazepam – possession for own use – negligently deal with property suspected of being the proceeds of crime – early plea of guilty- severe Stimulant Use and Anxiolytic Use Disorder – no relevant prior criminal convictions
Legislation Cited: ss 71AA, 73(1) Drugs, Poisons and Controlled Substances Act 1981; s5(2H) Sentencing Act 1991
Cases Cited: Gregory (a pseudonym) v The Queen [2017] VSCA 151, Director of Public Prosecutions v Condo [2019] VSCA 181
Sentence: Total effective sentence six years and two months’ imprisonment with a non-parole period of three years and eight months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Singh (For Plea) Mr J. Hurley (For Sentence) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms S Flynn QC (For Plea) Mr M. Kelly (For Sentence) | Melasecca Kelly and Zayler |
HIS HONOUR:
1 Jackie Chan on 21 February 2020, you pleaded guilty to the following charges:
· Charge 1 - on 11 April 2019 you trafficked in drugs of dependence, namely cocaine and 3,4-methylenedioxy-N-methylamphetamine in a quantity not less than the commercial quantity applicable to those drugs of dependence;
· Charge 2 - on 11 April 2019 you possessed a drug of dependence, namely cannabis; and
· Charge 3 - on 11 April 2019 you possessed a drug of dependence, namely Clonazepam.
2 Pursuant to s145 of the Criminal Procedure Act 2009, a summary charge was transferred to this Court to which you also pleaded guilty. That charges that at Box Hill on 11 April 2019, you did deal with property suspected of being the proceeds of crime, namely $158,350 cash and a black Louis Vuitton shoulder bag valued at $1,960, while being negligent as to whether or not the property is the proceeds of crime.
3 A summary of prosecution opening on plea was read to the Court. No issue was taken by your counsel in relation to the matters in the summary.
4 At approximately 7.35am on 11 April 2019, police executed a warrant under the Drugs, Poisons and Controlled Substances Act 1981 at apartment 418 of the Chen Hotel in Box Hill. Ms My Ngoc Khuu, your friend who was staying with you, opened the door. She pointed to you asleep in bed. You were woken and arrested. Ms Khuu provided a statement to police. In that statement, which was not challenged, she stated that the only item of hers found in the room was a white telephone. All other items belonged to you.
5 A search of the room was conducted and a number of items seized. For present purposes the items of relevance located are:
(a)a large amount of Australian currency totalling $105,000 in a bag behind a curtain;
(b)$8,300 in cash found in a men’s Louis Vuitton black satchel bag;
(c)a zip lock bag containing white powder;
(d)a small black zip lock bag inside your wallet;
(e)a $1,000 Crown poker chip inside your wallet;
(f)a white Apple iPhone in a black case on a table;
(g)a black Samsung Galaxy mobile phone in a clear case on a desk;
(h)a black zip lock bag containing a quantity of green vegetable matter under the desk;
(i)a plastic zip lock bag containing a ‘brick’ of white powder inside a black Nike shoulder bag;
(j)multiple zip lock bags containing white powder in the black Nike shoulder bag;
(k)a plastic bottle of Rivotril (also known as Clonazepam) on the bedside table;
(l)a white Apple iPhone in a clear case; and
(m)$780 cash in a Chanel bag.
6 Police also executed another warrant under the Drugs, Poisons and Controlled Substances Act 1981 to search a blue Toyota sedan registration 1HV 1CK belonging to you. In your car the following items of relevance were found:
(a)a glass jar containing a quantity of green vegetable matter;
(b)a plastic zip lock bag containing a large quantity of white powder in a compartment hidden underneath the centre console;
(c)a black zip lock bag containing a number of smaller zip lock bags containing brown wet powder in a compartment hidden underneath the centre console;
(d)a large quantity of Australian bank notes totalling $45,050 in a compartment hidden underneath the centre console; and
(e)a large set of kitchen scales on the back seat.
7 You were arrested and taken to the Box Hill Police Station for questioning. The interview was recorded and you answered, mainly, “no comment” to the police questions.
8 CCTV footage obtained from the Chen Hotel confirmed that you attended the hotel from 2 April 2019 to 11 April 2019. Hotel records show your reservation history at the hotel being between 27 March 2019 and 11 April 2019.
9 Forensic drug analysis of the substances found in the zip lock bags seized from your hotel room and your car revealed:
(a)six of the zip lock bags of white powder weighed 420.9 grams and contained approximately 358 grams of cocaine; and
(b)two of the zip lock bags of compressed brown powder weighed 383.4 grams and contained approximately 308 grams of 3,4‑methylenedioxy-N-methylamphetamine (MDMA).
10 The two items seized from your hotel room and your car containing green vegetable matter were analysed by a botanist and found to contain a total of 8.3 grams of cannabis.
11 The Clonazepam was located on the bedside table of your room. Nineteen tablets were found in a plastic container bearing the brand name Rivotril. You did not have a medical prescription for that drug.
12 The total amount of currency found was $158,358. That money, together with the black Louis Vuitton satchel bag valued at $1,960 makes up the summary charge.
13 The learned prosecutor also produced your criminal record which was admitted. That record shows that on 20 October 2010, at the Melbourne Children’s Court, for the charges of affray and possessing a prohibited weapon without approval you were placed on a Youth Supervision Order. As I mentioned during the plea hearing, given that it is a Children’s Court matter occurring almost 10 years ago, I do not consider it relevant to the sentencing proceedings before me.
14 I was also informed that you pleaded guilty on the morning of the committal hearing, prior to the examination of any witnesses.
15 Since your arrest on 11 April 2019 you have been in custody on remand. Almost all of that time has been at Fulham Prison.
16 The following maximum penalties apply:
Trafficking in a commercial quantity of a drug of dependence – 25 years’ imprisonment;
Possession of cannabis – 5 penalty units;
Possession of Clonazepam – 5 years or 1 year imprisonment if you can satisfy the Court that the possession was for a purpose other than trafficking; and
Dealing with property suspected of being the proceeds of crime – 2 years' imprisonment.
17 The learned prosecutor did not concede that your possession of the Clonazepam was for a purpose other than trafficking. I was also informed that the charge of trafficking in a commercial quantity of a drug of dependence is a Category 2 offence pursuant to the Sentencing Act 1991, therefore s5(2H) of that Act applies to you. You did not seek to be exempted from the operation of that provision.
Background
18 You were born on 18 May 1991 at Geelong. You are now 28 years of age.
19 Your parents came to Australia following the Vietnam War as refugees. You have an older sister, six years your senior.
20 Ms Flynn QC, who appeared on your behalf, told me that during your childhood your parents were often absent from the family home due to their work commitments. She described a childhood marked by emotional neglect and an absence of nurturing and warmth from your parents.
21 You attended Salesian College until the age of 17 when you left school part-way through Year 11. However, from the age of 13 or 14 you were frequently truant from school. I am told that by Year 9 you were attending school on average two to three days per week.
22 At the age of 20 you obtained employment at a stationery supplies warehouse. Your work involved the packing of stationery items to fill customer orders. You worked in that capacity from the age of 20 to the age of 25 years. I was not told of any other employment in which you engaged.
23 In 2017 you enrolled in a TAFE course to study musical production. Although musical production was something on which you were very keen, you did not complete that course. Ms Flynn told the Court that this was due to your spiralling drug use.
24 Ms Flynn tendered a report from consultant psychologist Luke Armstrong dated 5 February 2020. That report sets out in detail a number of matters relating to your background and history of drug abuse. I will set out some of it here.
25 You told Mr Armstrong that your parents were involved in the restaurant industry working seven days per week and were seldom home before 11.00pm. Your relationship with your father was made more difficult because he did not speak English and you had difficulty with the Cantonese language. Mr Armstrong stated that it was clear that you presented with an insecure attachment, magnified significantly by the absence of consistent care, nurturance and the presence of your parents. You were often left in the care of your sister but you did not have a good or close relationship with her.
26 At school you suffered social alienation and ongoing bullying. You sought to avoid conflict and confrontation. However, at about the age of 13 or 14 years you became involved with a peer group who were disengaged from school and involved in petty crime and drug use. This marked a turning point in your life as with that group you felt protected from racially driven bullying.
27 You informed Mr Armstrong that you first began to use drugs at the age of 16, specifically cannabis and ecstasy. By 17 years of age you had disengaged from school and your use of ecstasy increased and you began to engage in occasional binge drinking. At the age of 20, and after you commenced full time employment, you began to experiment with cocaine. You quickly became addicted to that drug and by the time you were 25 or 26 years of age you were using between one and two grams per day. Your wages were spent to support your habit but were insufficient to cover the total cost. You began to accumulate significant debt. You also used Xanax, Rivotril and Ketamine to counter withdrawal symptoms and anxiety which was magnified by your cocaine use.
28 At page four of his report, Mr Armstrong stated:
“During his late teens and early twenties, your client’s addiction to drugs reflected a psychological process. Specifically, dependency on drugs was maintained on the following premise: being substance effected countered underling worthlessness, dysphoria, low self-esteem, agitation, and a chronic sense that something bad was going to happen. Your client also described chronic biological symptoms of anxiety including tightness in the chest. From approximately 25-26 years your client’s addiction to drugs included a biological level of drug dependency. Specifically, your client began to use drugs to avoid withdrawal symptoms. Your client became so preoccupied with securing, using and recovering from drug use on a daily level that he resigned from his employment and has not worked since.”
29 You reported to Mr Armstrong that in the 12 to 24 months leading up to your arrest, you were completely pre-occupied with securing, using and recovering from drug use. According to Mr Armstrong you fulfil many of the DSM-5’s criteria for severe Stimulant Use and Anxiolytic Use Disorder.
30 In Mr Armstrong’s opinion yours is a complex case owing to the overlap of untreated mental health concerns. Early deprivation has been an aetiological factor in the development of chronic low self-esteem, poor concentration, difficulty making decisions, as well as a chronic experience of anxiety and other depressive symptoms. He considers that your deviant peer group became your surrogate family which was responsible for exposing you to illicit drug use. By your mid-20s, in Mr Armstrong’s opinion, drug abuse became the only coping mechanism to counter your underlying mental health problems. In addition, your drug addiction became biological in nature. Mr Armstrong states that you most likely suffered a form of, or features of, dysthymia for many years. Overlapping that condition is a dependent personality disorder. Further, you fulfil many of the criteria for a stimulant and anxiolytic use disorder. Mr Armstrong considers that the level of mental disorder and impairment associated with a substance abuse disorder in your case is severe.
31 You expressed to Mr Armstrong an acceptance of the wrongful nature of your behaviour and expressed to him genuine remorse. He considers that you do not present with the kind of profile consistent with entrenched criminality or psychopathy. He considers that if you were to receive appropriate and intensive treatment, you would present as a low risk of reoffending and present a good prospect for rehabilitation. You have had no history of mental health treatment or drug treatment.
Sentencing considerations
Nature and gravity of offence
32 Charge 1, the trafficking in a commercial quantity of drugs of dependence is a particularly serious charge. This was properly conceded by your counsel. It is a rolled-up count relating to trafficking in two drugs of dependence, cocaine and MDMA. The seriousness of the offence can be gaged by reference to the maximum penalty of 25 years' imprisonment.
33 Found in your room and in your car were substances weighing a total of 420 grams, of which 358 grams was pure cocaine. A commercial quantity of that drug is 250 grams of pure cocaine or 500 grams of a mixture of substance and the drug of dependence. Thus, the quantity of pure cocaine you were in possession of was 1.43 times the commercial quantity. I note that a large commercial quantity is 750 grams of pure cocaine and 1 kilogram of a mixture.
34 Also found in your room and car were substances weighing a total of 383.4 grams, of which 308 grams was pure MDMA. A commercial quantity of pure MDMA is 100 grams or 500 grams of a mixture of substance and the drug of dependence. The quantity of pure MDMA you were in possession of was 3.08 times the commercial quantity. This is well above the minimum required to constitute a commercial quantity. A large commercial quantity is 750 grams pure MDMA or 1 kilogram of a mixture.
35 You had the drugs in your possession for the purposes of sale on a single day, namely 11th of April 2019.
36 Whilst it was submitted that the reason you became involved in trafficking was because of your own addiction to drugs, which had caused you to accumulate significant debt, I cannot ignore the reality that there are often significant financial rewards associated with drug trafficking. Given the quantity of drugs found in your possession, and the fact that they were to be sold, I accept the prosecution submission that you were motivated to traffick in those drugs for financial reward. The learned prosecutor did, however, accept that your motivation was also, in part, to fund your own habit. I also accept that you found yourself in debt by reason of your drug addiction, however, there was no evidence or submission as to the level of that debt as at the date of your offending.
37 I accept that your offending was directly related to your own involvement in drug use and your addiction to illicit substances. In my opinion your use of and addiction to illegal drugs must be looked at in the context of the matters raised in Mr Armstrong’s report and the reasons why you developed an addiction. Mr Armstrong stated that your abuse of drugs was a coping mechanism to counter underlying mental health problems, and that by your mid-20s your addiction became biological in nature. Whilst drug addiction is no excuse for your behaviour, in your case I am prepared to accept that your addiction has some mitigatory effect upon your moral culpability.
38 Ms Flynn acknowledged that the sentencing regime for trafficking drugs of dependence is a quantity based regime. She referred to the Court of Appeal’s decision in Gregory (a pseudonym) v The Queen [2017] VSCA 151 where the court stated, at paragraph [24]:
It follows, as the Crown submitted on the appeal, that quantity is a highly relevant consideration in sentencing for trafficking offences. … Other things being equal, the greater the quantity trafficked the more serious the offence. There are, of course, other important indicators of offence seriousness — in particular, the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.
39 Whilst little is known as to your role it has not been suggested that others were involved in your trafficking or that you were part of any business organisation involved in trafficking. However, you were clearly able to source large amounts of both drugs with relatively high levels of purity, and it was you alone who was in possession for sale.
40 The objective gravity of your offending on Charge 1 would fall, in my opinion, towards the middle of the spectrum of severity. I do not accept that your offending falls towards the bottom end of the range for commercial quantity trafficking. I have had regard to the quantity of drugs involved, the fact that you were trafficking in two different drugs, and that you were the sole person in possession of those drugs for sale. I also have regard to the fact that the trafficking is constituted by offending on one day only.
41 You should know, Mr Chan, from your own addiction to illicit drugs, the devastation and misery that drug traffickers cause to the lives of those who use and become addicted to drugs.
42 In relation to Charge 2, there is no suggestion that your possession of the cannabis was for any purpose other than your own use. You were found in possession of a relatively small quantity of that drug.
43 Charge 3 relates to your possession of the drug clonazepam. Ms Flynn submitted that I should be satisfied that your possession of clonazepam was for your own use and not for any purpose relating to trafficking in that drug. As stated, the prosecution did not accept your counsel’s submission. If I accede to your counsel’s submission the maximum penalty applicable to this offence is one year of imprisonment. If I am not persuaded, on the balance of probabilities, that your offending was not for any purpose relating to trafficking, it is five years' imprisonment. You bear the onus of proof.
44 Having regard to all of the circumstances, including where the drug, under the brand name Rivotril, was found on the bedside table; the fact that there were 19 tablets remaining in the plastic bottle; the fact that the quantity of clonazepam was less than the trafficable quantity of that drug; and the fact that you used medication, including Rivotril, to counter withdrawal symptoms and anxiety magnified by cocaine use, I find on the balance of probabilities that your possession of clonazepam was not for any purpose relating to trafficking in that drug. I find that you had that drug for your own use.
45 With regard to the summary offence I find that your dealing with the proceeds of crime while being negligent as to whether or not they were proceeds of crime is, by virtue of the monetary value of those proceeds, a serious instance of this offence. The maximum penalty is one of two years' imprisonment. No explanation was provided for your possession of the money. You refused to provide an explanation.
46 Ms Flynn submitted that there should not be any cumulation of penalty for that offence relying on the decision of Director of Public Prosecutions v Condo [2019] VSCA 181. I do not accept that the Court of Appeal’s decision in Condo provides any precedent to support the submission that there not be any accumulation of penalty. I am to have regard to the particular facts and circumstances of the offending before me. No explanation was provided for your possession of the money and how you came to be in possession of it. How it relates, if at all, to the other charges I simply do not know. I will, of course, have regard to the principle of totality and the fact that it is an offence committed at the same time as the other offences in sentencing you.
Plea
47 I have regard to the fact that you pleaded guilty to the offences. You pleaded guilty on the morning of the committal hearing before any witnesses were called. I was told that the reason you did not plead guilty earlier was because there was a delay in the provision of the certificate of analyst. This was not disputed and I am prepared to accept, in that circumstance, that you pleaded guilty at an early stage. Your plea indicates your willingness to accept responsibility for your conduct; a willingness to facilitate the course of justice and I find there are utilitarian benefits that flow to the court and the community in avoiding a committal hearing and trial.
Remorse
48 I accept also that your pleas of guilty are indicative of your remorse. When speaking to Mr Armstrong, you accepted the wrongful nature of your offending behaviour and, in his opinion, expressed genuine remorse. I accept that you are genuinely remorseful for your offending.
Rehabilitation
49 Ms Flynn submitted that since the offences were committed you have not been charged with any further offending. I was told that you are working within the “small motors” section at Fulham prison and have completed a drug and alcohol course whilst on remand. I was also told that you have been abstinent from the use of drugs since your arrest but no urine analysis results were provided.
50 I also have regard to the fact that you have no relevant criminal history and that in the opinion of Mr Armstrong you do not present with a profile consistent with entrenched criminality or psychopathy. You also have the support of your mother who was present at court during your plea hearing. I also have regard to the fact that this is your first time in custody and that this has no doubt had a salutary effect upon you.
51
I have regard to each of those matters in considering your prospects of rehabilitation. However, as to those prospects much will depend on treatment you undertake for your mental health issues and drug addiction.
Mr Armstrong stated that if you receive the intensive treatment he recommends in his report you would present a low risk of reoffending and good prospects for rehabilitation. His treatment recommendations include total abstinence from drug use and outpatient treatment for a minimum period of 12 to 24 months to minimise the risk of relapse and specialist psychological therapy to disentangle and understand the relationships between your mental health problems and compulsion to use drugs.
52 I am not able to find, as was submitted by your counsel, that your prospects are very good. Much will depend on whether you obtain the treatment needed and how effective it is. At this time, based on your conduct since your arrest, I am prepared to find that you have reasonable prospects for rehabilitation.
Denunciation and Deterrence
53 Denunciation and general deterrence are significant considerations in the sentence I am to impose. Drug trafficking must be condemned and those involved in drug trafficking, or who are thinking of becoming involved in drug trafficking, must understand that they will face serious penalties. I also consider that the sentence that I impose must be sufficient to deter you from further involvement in criminal activity, although given the absence of relevant prior and subsequent convictions some moderation in the weight to be given to specific deterrence is allowed.
Protection of the community
54 I am also required to have regard to the protection of the community in the determination of the appropriate sentence. In so doing I take into account my conclusion as to your prospects for rehabilitation and the fact that you have no relevant prior convictions. However, I also have regard to the seriousness of Charge 1 in particular, and the fact that your prospects for rehabilitation are very much tied in with the need for you to receive appropriate treatment.
Current sentencing practice
55 I have had regard to the decisions to which I was referred by Counsel as well as a number of cases referred to in the Judicial College of Victoria’s Sentencing Manual. Current sentencing practice is one of a number of factors required to be taken into account by s5 Sentencing Act 1991. The comparative cases in the Sentencing Manual are of little assistance given the wide variation in objective and subjective features of each case.
Sentences
56 Having regard to each of the sentencing objectives, and the need to impose a sentence that is just in all of the circumstances, I impose the following sentences:
· Charge 1 – Convicted and sentenced to 6 years’ imprisonment;
· Charge 2 – Convicted and fined $300;
· Charge 3 – Convicted and fined $600; and
· Charge 4 – Convicted and sentenced to 6 months' imprisonment, 2 months of which is to be served cumulatively on Charge 1.
57 This makes a total effective sentence of 6 years and 2 months' imprisonment. I set a non-parole period of 3 years and 8 months. In setting the non-parole period I have had regard to the lack of relevant prior convictions, the fact that this is your first time in prison, your relatively young age and your reasonable prospects for rehabilitation.
58 Pursuant to s18 of the Sentencing Act, I declare that you have served a period of 350 days not including today by way of pre-sentence detention and reckon that as the period already served under the sentence.
59 6AAA – But for your pleas of guilty to Charges 1 and 4, the sentence I would have imposed is one of 7 years 6 months with a non-parole period of 4 years 9 months.
60 Mr Kelly, there is a forfeiture order sought and disposal order sought. Are there any issues with that?
61 MR KELLY: No, there is no issue.
62 HIS HONOUR: All right, yes, I make the forfeiture order and disposal order as sought.
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