Director of Public Prosecutions v Chan

[2016] VCC 222

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02075

DIRECTOR OF PUBLIC PROSECUTIONS

v

YAU FAT CHAN

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2016
DATE OF SENTENCE:	7 March 2016
CASE MAY BE CITED AS:	DPP v Chan
MEDIUM NEUTRAL CITATION:	[2016] VCC 222

REASONS FOR SENTENCE
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Subject:Trafficking in a drug of dependence (Methylamphetamine) – Large commercial quantity – sophisticated operation involving re-crystallisation of methylamphetamine

Sentence:10 years imprisonment – Non-Parole Period of 7 years and 6 months – 326 days Presentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Doyle	Office of Public Prosecutions Victoria
For the Accused	Mr P Chadwick QC	Chiodo Madafferi

HIS HONOUR:

1Yau Fat Chan you have pleaded guilty to one count of trafficking in a drug of dependence in a large commercial quantity. The drug was methylamphetamine and the charge period is from 23 March 2015 to 15 April 2015.  The maximum penalty is life imprisonment and 5000 penalty units.

The circumstances of the offence.

2The circumstances of the offence were set out in the Crown opening (Exhibit A) which was read in open court on the plea last week and which I incorporate by reference.  In brief outline, the matter came to the attention of the authorities because of a false alarm or a fire alarm that was activated at a high rise building in A'Beckett Street in the city on the afternoon of 15 April 2015.  The MFB arrived there and they could hear water running from the sprinkler system.  They forced entry into an apartment and found you there.  You attempted to impede their entry into the premises and when they got into the unit they found a sophisticated operation involved in re-crystallisation of methylamphetamine. In the course of you processing the methylamphetamine, at some stage a piece of paper had been ignited by a gas burner which resulted in triggering the sprinkler system. 

3Police subsequently arrived and arrested you in another unit on that same floor.  In the premises they found a large volume of items relating to the
re-crystallisation of methylamphetamine including 11 zip lock bags containing a white crystalline substance that had between 420 grams and 1019 grams with a total weight of 9.1 kilograms.  Then there was a large amount of methylamphetamine on the floor in the unit.

4You were then interviewed by the police using a Mandarin interpreter and you made full admissions to the police and said that you were a resident of Hong Kong and had arrived in Australia about three weeks previously.  You had a daughter in Melbourne, you stayed with her one night and then you were taken to the unit by Mr Bao, who had organised the operation, who you described as a "friend of a friend" and that you were to be paid $40,000 HKD for each kilogram that you processed, which amounts to about $6,500 AUD per kilogram.  You did not have any contact numbers for Mr Bao and Mr Bao would come along and take a bit of ice away. 

5The methylamphetamine was already in glue bottles from mainland China when you arrived.  You explained to the police how you engaged in the reprocessing operation, by heating the liquid and then putting it in the fridge and it ended up in a crystalline form.  You had been taught the process by
Mr Bao in Hong Kong.  You were testing the product by tasting it with your fingers.

6You had six kilograms of bags of ice already packaged at the time the police arrived and there was liquid in the other rooms.  You explained how, when you were cooking the ice, the paper caught fire and you immediately put it out but the smoke activated the alarms.

Characterising the seriousness of the offence

7In the prosecution plea submissions the learned Crown prosecutor noted that there was no evidence aside from the assertions made in the record of interview about your role.  On your account “which appears plausible you were a labourer or a cook rather than being highly placed in the enterprise.  However you were clearly preparing a very large amount of very pure methylamphetamine designed for the Australian market in a purely commercial venture.”  The actual purity of the drugs that were found was about 80 per cent, which is a very high level of purity.

8It was common ground on the plea that you were to be paid for the amount of crystal that you had extracted.  You were to be paid a total amount of around $90,000 AUD should you have succeeded.  This was to be paid in Hong Kong upon your return.

9Also in the record of interview you said that you had been taught how to engage in the re-crystallisation operation in Hong Kong and that Mr Bao the principal had paid for your airfare to Australia.  You were engaged in the task for a period of about three weeks before you were detected as a result of the fire alarm.

10The seriousness of your offending can be characterised in two ways.  First the amount of methylamphetamine recovered was almost 15 times a commercial quantity with the majority of it being 80 per cent pure.  The total amount is 14.7 kilograms, as I have said.  As has been said on a number of occasions the actual quantity trafficked by an accused is a very significant sentencing consideration.  Your counsel did not dispute this as it is consistent with authority such as Chandler v The Queen [2010] VSCA 338. However it is only one factor to be considered in all the range of factors as was raised in the case of Harris v The Queen [2016] VSCA 30 that was discussed this morning.

11Within the range of large commercial quantity cases the quantum involved here is in the mid to upper range of cases that come before the court.  On any view this was a large amount of drugs that you were engaged in processing.

12The rewards were going to be very high.

13Next your particular role.  Your counsel sought to characterise you as a labourer in the process.  It was put that you had a limited specific role for a fixed sum.  You were to undertake this upon arrival in Australia and the relevant equipment and the raw material were already supplied.  You did not know how much you were going to process.  You accepted the task to be undertaken as offered by Mr Bao.  It was submitted that you are a lower level in the operation than in another syndicate where people are selling the drugs. It was submitted that you were to be seen in the lower end of the scale with a limited task doing a particular job.

14The learned Crown prosecutor in response however noted that you had been left effectively in charge of a large amount of valuable drugs for the charge period.  You were therefore trusted to undertake a significant role in a major drug enterprise where the amount of drugs in your possession as you sought to undertake your role was worth around $1.5 million on a wholesale basis.

15As has been noted by the Court of Appeal it is often difficult to characterise the position of any individual within a drug hierarchy.  In this case as conceded by the prosecution you were not the principal of the enterprise. However, you did play a significant role as it was necessary to convert the drugs to crystal and you undertook this role over a three-week period.  In addition you had travelled from Hong Kong for that specific role.  You were to be paid a significant amount of money namely up to $90,000 should you achieve your task.  Describing you as a labourer undersells your role.  It was significant because the whole trafficking enterprise could not go forward until the process undertaken by you had been completed.

16Contrary to the submission of your counsel I also do regard it as relevant and adding somewhat to the seriousness of the offending is that you were prepared to undertake this task in a residential apartment block, thereby potentially exposing other occupants to dangerous fumes.

17While I accept that you were not the principal of this enterprise, overall you played a significant role in what was a major drug enterprise.  The sheer quantum of drugs involved namely 15 times a commercial quantity of high purity, and the very significant value, and your involvement specifically coming from Hong Kong to Australia, after learning how to undertake the task before you left, being provided with airfares to come to Australia to undertake the task for a significant financial reward, and then undertaking the task over a three-week period means that you must be characterised as having a serious involvement and involving serious culpability on your part.

18As emphasised by counsel, however, all the overall circumstances must be taken into account in sentencing you, and I do.

Matters in mitigation

19In a comprehensive plea your counsel put a number of matters in mitigation which I have taken into account.  First he submitted that you were remorseful for your conduct.  This is evidenced in the comments made in the record of interview and also a number of comments recorded in medical records in the Justice Health department. The evidence from Mr Cummins, forensic psychologist, indicated that you are a relatively unsophisticated person not literate in your native Chinese tongue which may explain why there has been little reference to victim empathy.  However, I am prepared to accept that you are remorseful for your conduct.

20Next you pleaded guilty at the earliest possible opportunity and this is accepted by the prosecution.  You have facilitated the course of justice, saved the need for a trial and taken responsibility for your conduct.  You cooperated with the police and made full admissions.

21Your personal circumstances were outlined on the plea and are set out in the report of Mr Cummins.

22You are now aged 60 and were born in mainland China.  You received only two years’ schooling and were forced into the workforce early coming from an impoverished family with seven siblings and two who passed away in infancy.  You married when you were aged 29 and you have three children with the two youngest being twins aged around 20 and living in Hong Kong in education. You separated from your wife after your bankruptcy.  She has flown from Hong Kong to be present on the plea and still supports you.  You also have the support of your three children, and your eldest daughter, who lives in Melbourne, and who gave evidence, indicates that she visits you on a weekly basis in order to assist your psychological well-being.

23It is clear that you have a number of medical problems which the prosecution accept will make imprisonment more onerous than for an able-bodied person.  Your counsel put that you have a number of health problems including diabetes, cardiac problems, and anxiety.  Under limb five of Verdins, I take those conditions into account as making imprisonment more onerous.

24An additional matter that makes imprisonment more onerous is the fact that you only speak Cantonese and have no ties in Australia apart from your daughter.  Obviously this will make imprisonment more burdensome than for a person who speaks English or speaks a language where it is likely that there will be others who speak the same language while in prison, and who has ties in the community.

25I do not take into account your isolation from family in Hong Kong because you deliberately came into Australia for the purpose of offending.

26Another matter that I take into account is that you have been in prison on remand since you were arrested on 15 April 2015.  In addition to that as a result of the events at the MRC in June 2015 you were locked down for a period and then moved to another prison where again there were long periods when you were locked down.  Your isolation from other Cantonese speaking prisoners and this lockdown are matters that I do take into account in your favour as your period of remand to date has been more burdensome than otherwise and your psychological condition has been such that, in fact, there was an attempt at suicide at one stage.

27Your counsel filed a report from Mr Cummins, forensic psychologist, who indicates that you are suffering from an adjustment disorder with mixed anxiety and depressed mood.  He opines that this condition affected your judgement and led you to accept the proposal from Mr Bao.

28You have been provided with medication for depression while in prison but obviously imprisonment has resulted in you being depressed.  As I have indicated, you did attempt suicide at one stage.  Since that time you have been monitored by your daughter and it does appear that your psychological well-being has improved somewhat.  Mr Cummins has, however,  recommended that you seek psychological assistance whilst in prison.

29It was put on your behalf that you have been a hard-working person and have had a number of setbacks in life.  I am prepared to accept that you have suffered a significant arm injury in 1984 and then when you were in Hong Kong in 2005 a motor vehicle accident that caused problems that are still persisting today and for which you received some compensation.

30You have a good work record and provided for your family in what must be a very competitive environment in Hong Kong.

31The motivation for your offending was financial.  Mr Chadwick QC who appeared for you put that you had been a guarantor for an acquaintance in a business enterprise establishing a restaurant.  You were effectively been defrauded or misled by him and the enterprise went bankrupt and you were then forced into bankruptcy owing more than AUD $1.5 million.  Because the guarantee related to government funds that debt could not be extinguished by bankruptcy and it was in those straitened circumstances that a friend of a friend, Mr Bao, offered you an opportunity to make some money that led to your travel to Australia for this criminal enterprise.  That explains your offending but of course does not excuse it.  You have never been involved in any prior criminal activity.

32Your prior good character and good work ethic was testified to in two letters of reference from your daughters in Hong Kong and also evidence given by your daughter who lives in Melbourne and has two children, and also there was a letter from your wife.  I have taken all those into account.  Your daughter visits you on a weekly basis and gave evidence of your depressed condition since being placed on remand.

33I have taken all those matters into account, all the matters put on your behalf including your age and the fact that this will be the first time you have been in prison, in sentencing you.

Relevant cases.

34In sentencing you I am required to have regard to current sentencing practices along with the seriousness of the offence and the maximum penalty, as well is your personal circumstances.

35The learned prosecutor and your counsel have referred to a number of authorities that provide some assistance in order to place this case within the range of cases.  In particular your counsel and the prosecutor referred to a case of Kumova v The Queen [2012] VSCA 212, where an offender who had been extensively involved in selling drugs over a four-month period with a total weight of 13.7 kg of methylamphetamine was sentenced to ten years’ imprisonment with a minimum term of seven years. The appeal was unsuccessful. This matter was put as being distinguishable and indicating a lesser level of culpability because of the detailed series of actions taken by the offender in that case.

36While there are some similarities, the offending conduct related to the selling of the drugs, where as yours is more involved in the manufacture of the drugs in the terms of reprocessing.  On appeal the sentence was described as anything but excessive. The offender was to receive little reward for his conduct but he was found to have operated as a principal player wholesaler. The offender was aged 27 at the time of the offending. In any event the amount in terms of purity of the drug here is less than in that case.  Overall I regard your case as being more serious due to the quantum of the enterprise, the purity of the drugs, your intense premeditated involvement and the fact that you are a mature individual.

37I was referred to a recent case of DPP v Lin [2015] VCC 1830 where the offending involved a 24-year-old student who was charged with trafficking a large commercial quantity on a single day, but he had been involved for a longer period. He had been involved in testing the drugs and effectively looking after what was a retail outlet. The amount of drugs was 2.4 kg of 80 to 90 per cent purity. There are other drugs involved as well as cash seized. On the offence of trafficking methylamphetamine in a large commercial quantity he was sentenced to 8 years’ imprisonment. He was sentenced to other terms for the other offences. He was sentenced as a youthful offender.

38I regard this sentence as distinguishable because the amount involved is less, it involved a person much younger than you, and his involvement was not as extensive in that it does not appear that he travelled to Australia for the specific purpose of engaging in the offending.

39I was also referred to the case of Chandler where both offenders were sentenced for 18 times a large commercial quantity with a head sentence of 12 years in each case.  They had been extensively involved in a manufacturing operation over a period of months. There were significant factors relating to delay in those cases and during the period of the delay there was significant evidence of rehabilitation by both offenders.

40I have had regard to the sentence in Chandler but the offending here is less serious as the offenders in that case were sentenced as the principals.

Purposes of sentencing

41     The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

42In sentencing you it has been repeatedly said by the Court of Appeal that general deterrence is a predominant sentencing consideration in large scale drug offending.  This offence carries a maximum term of life imprisonment.

43The nature and pervasive extent of drug trafficking of the type engaged in by you is such that the principles of general deterrence and denunciation assume substantial importance.  It is the large profits which can be gained from trafficking in drugs that attracts people such as you to engage in the type of offending for which you are to be sentenced.  It is important that persons like you who contemplate assisting in a drug trafficking enterprise for profit, whether to pay debts or otherwise, do so in the clear knowledge that if detected they will be sentenced to lengthy terms of imprisonment.  The fact that you were on a tourist visa does not provide any immunity for the need for general deterrence.

44The pervasive availability of illegal drugs, the ease with which they can be produced or made available, the difficulty of detection, and the damage the drug trade wreaks in the community means that those who assist in the production or distribution of drugs at whatever level will be subject to serious punishment when apprehended.

45In your case you came to this country on a tourist visa for the sole purpose of assisting in the transformation of the raw material to a form where it could be sold to users.

46Your conduct in coming to Australia to do this and then actually doing this for a period of three weeks has to be utterly condemned and denounced.

47The sentence must deter others from being similarly tempted.

48Given your age and lack of prior convictions I regard your prospects of rehabilitation as reasonable.  As has been said on a number of occasions however the personal factors of serious drug offenders carry less weight in the sentencing analysis than the needs for general deterrence, just punishment and retribution.

49In sentencing you I must have regard to the need to fix a non-parole period.  This is the minimum period that you will be required to serve before being eligible to serve the balance of your sentence in the community.  In fixing a non-parole period I have had regard to the seriousness of the offending, the need for deterrence and your prospects of rehabilitation.

Sentence

50On the charge of trafficking in a large commercial quantity of methylamphetamine you are sentenced to 10 years’ imprisonment.  I direct that you serve a period of seven and one half years of imprisonment before being eligible for parole.

51I declare 326 days of pre-sentence detention excluding this day.

52Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to 13 years’ head sentence with a ten year non-parole period.  

53The prosecution have sought other orders for compensation for the damage to the apartments, and for disposal of property seized.  I will make those orders. The prosecution have also sought an order that you provide a forensic sample.  Given the seriousness of the offence I will make an order that you provide a saliva swab to the authorities.  I must advise you that the authorities may use reasonable force to obtain a sample from you for the purposes of testing.

54Are there any other matters, Madam Prosecutor?

55MS DOYLE:  No, Your Honour.

56HIS HONOUR:  I have made all the orders sought.  Mr Chan can be removed and I have made the orders.  I will stand down temporarily.

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