Director of Public Prosecutions v Chang (a pseudonym)
[2021] VCC 1869
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01690
CR-21-01634
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAN CHANG (a pseudonym) and WEN TSAO (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2021 | |
DATE OF SENTENCE: | 18 November 2021 | |
CASE MAY BE CITED AS: | DPP v Chang (a pseudonym) and Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1869 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Each offender pleaded guilty to trafficking in a drug of dependence, namely, methylamphetamine, in a large commercial quantity albeit that Chang’s offending spanned a period of 4 months and Tsao’s offending spanned a period of 1 month – each offender carried out the role of cook or worker at a clandestine methylamphetamine laboratory in one of three leased residential properties being used by a large syndicate for the manufacture of methylamphetamine – both offenders resided at that residential address – total amount of mixed substances containing methylamphetamine seized was 11,097.5 grams with purities between 1.5% and 85% – evidence suggested that offender Chang’s longer involvement with the syndicate entailed him having collected chemicals and had been present at the two other leased residential properties where large commercial quantities of methylamphetamine were located but no proof that he was involved with the production of methylamphetamine at those two other properties – each offender had no prior criminal history – early pleas of guilty – each offender was a foreign national residing in Australia illegally – consideration of risk of deportation and its impact – consideration of more burdensome nature of imprisonment due to COVID-19 restrictions and enhanced utilitarian value of pleas of guilty during the pandemic
Legislation Cited: Misuse of Drugs Act 1973 (Singapore); Sentencing Act 1991
Cases Cited:The Queen v Verdins [2007] VSCA 62; Guden v The Queen [2010] VSCA 196; Allouch v The Queen [2018] VSCA 244; Brown v The Queen [2019] 59 VR 462; Haddara v The Queen [2016] VSCA 168; R v Proom [2003] SASC 88; The Queen v Henry [1999] 46 NSWLR 346; Gregory v The Queen [2017] VSCA 51; Worboyes v The Queen [2021] VSCA 169
Sentence: CHANG: 8 years and 9 months’ imprisonment with a non-parole period of 6 years and 5 months. s.6AAA: 11 years and 6 months’ imprisonment with a non-parole period of 7 years and 6 months.
TSAO: 7 years and 9 months’ imprisonment with a non-parole period of 5 years and 2 months. s.6AAA: 10 years’ imprisonment with a non-parole period of 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Saunders | Solicitor for Public Prosecutions |
| For the Accused Chang | Ms A Hancock | Slades and Parsons |
| For the Accused Tsao | Mr S Tovey with Ms S Buckley | Pica Criminal Lawyers |
HER HONOUR:
1Lian Chang and Wen Tsao,[1] you have each pleaded guilty to one charge of trafficking in a large commercial quantity of a drug of dependence, namely, methylamphetamine, which carries a maximum penalty of life imprisonment.
[1] The names of each offender in this matter have been replaced with pseudonyms, because the cases of other accused persons being prosecuted for this offending remain at the pre-trial stage.
2The circumstances of your offending are set out in the prosecution plea opening (Exhibit “A”) which is appended to these sentencing remarks.
3In essence, each of you were living at a leased residential property which was one of three leased residential properties being used by a syndicate for the purpose of the manufacture of methylamphetamine. At each of the properties, police located a large commercial quantity of methylamphetamine. Fifteen people were charged in relation to the syndicate’s activities. Four resolved into pleas of guilty in the summary jurisdiction and nine others have been committed to stand trial in the County Court at Melbourne. Each of you pleaded guilty to the charge against you at the committal stage. This occurred after counsel for you, Mr Chang, had cross-examined several witnesses at committal, but no witnesses had been cross-examined on your behalf, Mr Tsao.
4Each of you have pleaded guilty on the basis that you were cooks or workers at the property at which you were residing, where a total of 11,097.5 grams of mixed substances containing methylamphetamine, with purities between 1.5% and 85%, were seized by police on 7 May 2020. On that day it was obvious that an active clandestine drug laboratory was producing a large quantity of methylamphetamine. As police entered the property, each of you attempted to flee through a bedroom window but you were both subsequently arrested and have remained in custody until the present time.
5Photographs taken by police at the property (Exhibit “D”) show a very sparsely furnished house with makeshift bedding in two bedrooms and, otherwise, an extensive and sophisticated clandestine laboratory. 197 exhibits were seized showing a host of equipment including multiple cooktops, scientific glassware, a thermometer, multiple nitrile gloves both used and unused, timers, scales, many tins and containers of chemicals, electric stirrer motors, a large charcoal filter, a setup in a shower recess utilising it as a source of water for the laboratory, filter papers, pH strips, marked measuring jugs and a half-face respirator. It was obviously an elaborate enterprise. It is not alleged that either of you were involved in arranging the lease of the property or payment of the rental or bond relating to it or that you had imported equipment or precursor chemicals or set up the manufacturing process at the property where you were living.
6The charge to which you, Mr Chang, have pleaded guilty is for a period of approximately four months from 20 January 2020 to 7 May 2020. This is on the basis that evidence shows that you had a longer involvement in the activities of the syndicate than Mr Tsao. It is conceded by the prosecution that it cannot prove that you were engaged directly in the manufacture of the large commercial quantities of methylamphetamine found at either of the other two properties with which the syndicate was involved. However, there is some circumstantial evidence suggesting that you were involved in moving equipment associated with those other addresses[2] and that you had purchased acetone, disposable gloves and chemicals related to the residence in which you were living.[3] Also, there was evidence of WeChat conversations between you and another syndicate member and a video sent to you by him relating to the manufacture of methylamphetamine, a Bunnings receipt and smart invoice in your name, and a WeChat conversation between other syndicate members with your contact details in the context of purchasing hydrochloric acid.[4]
[2] See Exhibit “A”, paragraphs 38 and 46
[3] See Exhibit “A”, paragraph 56 and footnotes 18 (Depositions 456), 22
[4] See Exhibit “A”, paragraph 80 (Depositions Exhibit 487.1) and paragraphs 86, 87 and 91 with associated footnotes.
7Mr Tsao, your period of involvement in the trafficking was for approximately one month from 9 April to 7 May 2020.
Offender Lian Chang
8Mr Chang, in a plea on your behalf by Ms Hancock, the court was told that you are a citizen of Malaysia where you were born [in 1987].[5] At the time of your arrest you were aged 32 years and are currently aged 34 years. You had come to Australia over two years prior to this offending on a visitor’s visa. This visa had expired on 19 January 2018 and you had remained in the country unlawfully from that time. You come before the court with no prior criminal history.
[5] Full date of birth redacted to ensure anonymity.
9Ms Hancock stated that you come from a family in which you are the oldest of six brothers. Your brothers and parents all remain in Malaysia. You had been in a long term relationship in Malaysia, but at age 23 had been injured in a serious accident when the vehicle in which you were an occupant struck a pole and another passenger in the vehicle died. He had been your friend for a number of years. You struck your head in the collision and were rendered unconscious. You also injured your hand, which required two surgical procedures. You were in hospital for 3 weeks. You were unable to work for the next two years as you suffered ongoing fatigue, dizziness and nightmares. Your relationship with your partner, with whom you had been considering marriage, broke up and you became depressed and began to use illicit drugs.
10You apparently came to Australia in late 2017 on a 3 month tourist visa in order to escape your drug use and hoping to pursue some study. Neither of these plans came to fruition. You worked for cash-in-hand in the building industry for a time and, in 2019, obtained work picking fruit in Robinvale. There you met your current partner, Isla,[6] who was also from Malaysia. She became pregnant to you and, in mid-2019, returned to Malaysia where, on 4 December 2019, she gave birth to your son, whom you have never met. When I queried your counsel as to why you had not returned to Malaysia with your partner who was expecting your child, a somewhat vague explanation was proffered that you wished to remain here because you could earn a better income than in Malaysia, even though you had no visa to permit you to do so.
[6] A pseudonym
11Your counsel stated that, whilst working picking fruit, you were introduced to various members of the syndicate and recruited into this criminal offending. You continued to be a drug user and it was apparent when police arrested you on 7 May 2020 that you were drug affected and not fit to be interviewed. You were subsequently interviewed at Ravenhall prison on 23 October 2020 and essentially gave a “no comment” record of interview, as is your legal entitlement.
12Your counsel relied upon a psychological assessment of you conducted by Ms Gina Cidoni embodied in a report dated 19 October 2021.[7] She recorded that you had attended school in Malaysia to Year 9. Your academic performance had been sound, but you had been bullied due to obesity. Thereafter, you worked in Malaysia in a furniture factory and later undertook some motor repair and electrical work leading up to the motor vehicle accident.
[7]Exhibit “D1-1”
13Ms Cidoni stated that, on a self-report questionnaire, you noted intense feelings of inadequacy and hopelessness and presented with symptoms of a Major Depressive Disorder. You also experienced fatigue and insomnia and were basically shy and socially uncomfortable and plagued by self-doubt and low self-esteem. She considered that you exhibited symptoms of Post-traumatic Stress Disorder, albeit that she gave no analysis as to what those symptoms related, except for “reminders of trauma (unspecified).” She considered that you appeared to turn to drugs to fulfil several otherwise “difficult-to-achieve” psychological functions and, in stressful situations, your coping resources were reduced, with lowered capacity for problem solving and coping skills. She diagnosed you as suffering a Major Depressive Disorder, Post-traumatic Stress Disorder and Substance Use Disorder.
14I must say that I found Ms Cidoni’s report of a generic and not particularly analytical or helpful nature. For example, she indicated that the motor vehicle accident which you had experienced at age 23 “can (my emphasis) represent a life altering experience…” She went on to state that “this can (my emphasis) create major thinking problems in people.” She noted that your drug use placed you in contact with the other offenders and, although you were tempted by money, your “own drug use blurred [your] thinking. [You] did portray this accurately but [your] unstable mental health would (my emphasis) also have contributed.” She considered that your emotional state and mood swings and anxiety, distress and sadness would impact upon your ability to cope in prison and that you would benefit from trauma focussed interventions to increase your insight into your underlying mental health issues and develop managing strategies for your depression, anxiety and trauma symptoms. She also considered that you needed intervention for management of your drug abuse, but your language barrier makes participation in prison based programs too difficult.
15I agree with the submission of Mr Saunders for the prosecution that Ms Cidoni’s report is appropriately described as “sparse”, and I do not accept that the material before the court establishes the relevant nexus between any mental health impairment and the offending such as to reduce your moral culpability for the offending or the emphasis to be placed upon general or specific deterrence in accordance with principles 1-4 in The Queen v Verdins.[8] However, I do take into account that serving a term of imprisonment while suffering from a Major Depressive Disorder, a Post-Traumatic Stress Disorder (however caused), and social anxiety do make imprisonment a more burdensome experience than for someone who does not suffer such conditions.
[8][2007] VSCA 62
16Ms Hancock stated that, notwithstanding your limited English, whilst in custody, you have been working in the laundry of the prison. Also, you have undertaken a number of programs, including one on release-related harm reduction for substance use and overdose, Certificate 1 in spoken and written English; Certificate 2 in Cleaning, Certificate 2 in Kitchen Operations, and Certificate 3 in Baking, as well as a course in Education Services involving language, literacy and numeracy. Evidence relating to such courses was tendered as Exhibit “D1-2”.
17Also tendered on your behalf as Exhibit “D1-3” were eight character references authored by your partner, Isla Laing,[9] your father, mother, and each of your five brothers. It is clear that you and your partner have maintained contact and she is supportive of you, and confirms that you are hoping to return to Malaysia to be a good father and husband. She states that you are turning over a new leaf and have learned your lesson. Your parents, who ran a motorcycle business, spoke of you as having been a good student and a hardworking boy who was sensible and considerate and had helped out with the business when you could, and had a good relationship with your younger brothers whom you would assist and correct if they did something wrong. All of your brothers speak of you as being hardworking, respectful to your parents, and a responsible and caring big brother who was law abiding and came to Australia to give yourself a better life. All family members speak of you having made “a mistake” and being shocked or surprised and saddened by it. However, they make no mention of the fact that you had been a drug user, and all of your brothers refer to the fact that, since you left Malaysia to go to Australia, they have had little contact with you, and you did not tell them in any detail what work you were engaged in. Nevertheless, it is plain that you have a loving and caring family and partner, all of whom are prepared to continue to support you and look forward to being reunited with you when you are returned to your own country of Malaysia.
[9] A pseudonym
18In the light of the fact that you are a citizen of Malaysia with no entitlement to settle in this country and, in fact, wish to return as soon as possible to Malaysia in order to be with your partner and son and to reunite with your family, Ms Hancock made no submission on your behalf concerning any hardship associated with deportation.
19In sentencing you, I take into account that your period on remand during the COVID-19 pandemic restrictions applicable in prisons has been more burdensome. When taken into custody in May 2020, you would have been required to undergo a 14-day period in isolation and, since then, there have been multiple periods of lockdown in most prisons with reduced out of cell time in order to facilitate social distancing, as well as a diminution in the number of programs available, and the lack of any contact visits to prisoners. For someone like yourself who has no prior criminal history, this would have been a particularly difficult experience of a first time in custody, especially since you apparently had very little capability in the English language. Although the fact that you are removed from your family in prison in a foreign country is a direct consequence of coming to Australia as a foreign national, overstaying your visa and committing a serious crime here, it is to your credit that, whilst on remand, you have undertaken the courses and work to which I have referred.
20The other aspect of the COVID-19 pandemic which is relevant is that you entered an early plea of guilty at committal stage. That was at a time when the capacity to run trials in the County Court was very severely hampered because of the pandemic restrictions. Unlike yourself, nine of your co-offenders have apparently elected to go to trial. In these circumstances, your plea of guilty has an enhanced utilitarian value in that you have shown a willingness to accept responsibility for your actions and facilitate the course of justice, and have saved the State the cost and time involved in a criminal trial. I acknowledge, also, that your plea of guilty, itself, may be regarded as some evidence of remorse. The references from your partner and family also make mention of your regret about the “mistake” you have made, although it is not clear to me from the references that they necessarily appreciate the full nature and extent of your offending. Nevertheless, you are entitled to a meaningful and tangible discount upon the sentence which otherwise would have been imposed.
21Your counsel submitted that you had reasonable prospects of rehabilitation given your lack of prior criminal history, your early plea of guilty, your having undertaken both work and what courses have been available to you whilst in custody and the support of your partner and family in Malaysia, as well as your ability to work in the family motorcycle business when you return there. It is perhaps surprising that no results of urinalysis from your time in custody were tendered at the plea hearing. Your counsel did not submit that you had remained free of illicit drugs whilst in custody and Ms Cidoni just referred generally to prison enforcing drug abstinence. I have no information one way or another about this factor. It is of concern that Ms Cidoni opines that “[your] coping resources in the face of stressful situations are very reduced with lowered capacity for problem-solving and coping skills.”[10] I find it difficult to assess your prospects of rehabilitation, but youth is on your side. You have no criminal history and you have accepted responsibility for your offending at an early stage. One can only hope that you have learned your lesson and that your prospects of rehabilitation might be reasonably good.
[10] Exhibit “D1-1”, page 5, paragraph 51.
Offender Wen Tsao
22Mr Tsao, in a plea on your behalf, Mr Tovey told the court that you were born in Hong Kong on [in 1970],[11] which makes you now 51 years of age. You come before the Court with no criminal history.
[11] Full date of birth redacted to ensure anonymity.
23Whilst you were a baby in Hong Kong, your mother was stabbed to death by an unknown offender. When you were still relatively young, your father developed a relationship with your step-mother who was a resident of Singapore. You are a citizen of Singapore. You have two younger half-brothers from the relationship between your father and step-mother. You apparently felt that your father and step-mother treated you in an inferior manner to their two children. Your father died in 2003, but you maintain a relationship with your step-mother, who lives in Singapore.
24At some stage, your family were living in Hong Kong, but moved to Macau, where you undertook primary schooling. You then returned to Hong Kong to commence your secondary schooling. After completing that, you returned to Macau where you undertook a hotel management course. However, you were then obliged to return to Singapore to undertake two and a half years of compulsory military service. Thereafter, you returned to Macau where you worked at a casino for 15 years. Subsequently, you operated a small restaurant in Taiwan for a couple of years, before you returned to Macau to operate another small restaurant in partnership with another person. Your counsel stated that you sold your share in the Macau restaurant whilst you were on remand here in Australia, and incurred a financial loss by doing so.
25In 2005, you married. You have a son, aged 15 years, and a daughter, aged 13 years, from your marriage. At times during the marriage you would reside where you were working in Macau, and your wife and children would remain in Shanghai. You separated from your wife in 2009 and divorced in 2013 but, following the separation, your wife and children would spend about 10 days together with you each year, usually in Macau. Your children and former wife continue to live in Shanghai. You last saw your children in September 2019.
26You have been in a relationship with Ms Sarah Tseng[12] for the past six years. She resides in Taiwan where she works in the insurance industry. She has never been in trouble with the law. No material was put before the Court from Ms Tseng during the plea hearing.
[12] A pseudonym
27You had arrived in Australia on 4 February 2020. When I asked your counsel how you came to be involved in this offending only two months after arriving in Australia on a tourist visa, the explanation did not appear to be a very rational one. Mr Tovey stated that you and your partner had planned a trip to Australia, but had had a disagreement and your partner cancelled her trip. You arrived here on your own and found your way to the casino district, where you met others who were connected to this trafficking enterprise. You instructed Mr Tovey that you were offered a place to stay and some work, the nature of which was not immediately obvious to you. I must say that, given that you were then 49 years of age and had a legitimate restaurant business, in Macau, I find it difficult to understand why you would have needed either a place to stay or work. In any event, as soon as you arrived at the property where you were residing when police arrested you, it would have been abundantly obvious what “work” was going on there. Not only were you remaining in Australia illegally, but it was very plainly a criminal enterprise of producing a large quantity of methylamphetamine.
28Mr Tovey submitted that you were a worker whose task was to assist in the manufacture of methylamphetamine, and that you were subject to instructions in that regard, and there was no evidence of any significant profit or financial reward or lavish living, or that your offending was driven purely by greed. Whilst I have acknowledged that yourself and Mr Chang were not the masterminds behind the setting up of this clandestine laboratory, you have been unexpansive in enlightening the court what you stood to gain from your offending. Although this offending is apparently out of character for you, a man now aged 51 years with no prior criminal history, one can only infer that you must have had an expectation of some financial gain, albeit that it is not defined.
29Five reports of urinalysis showing you to have a negative result for illicit drugs in June, August, November and December 2020 and February 2021 were tendered as Exhibit “D2-1”. However, it was never submitted on your behalf that you have ever been a user of methamphetamine or other illicit drugs. Unlike Mr Chang, you were not drug affected on the day of your arrest. You were fit to be interviewed when you were arrested on 7 May 2020 and, as is your right, chose to answer “no comment” to the allegations made by police about your involvement in manufacturing methylamphetamine. I note that a reference tendered from your half-brother, Tsao Yul,[13] dated 22 October 2021, stated that you had “never previously been involved with drugs and certainly does [sic] not have any criminal record”.[14] He stated that the entire family were taken aback by the news of you having committed a drug offence, as you had never been the type of person to do anything like that, and that you were a clever and trustworthy person. This is something of a contrast to the sentiment of your step-mother who, in her reference dated 22 October 2021, described you as “being simple minded, he doesn’t know how to distinguish between good and bad company”.[15] It is a curious reference from your step-mother, in that she stated that you have high self-esteem, yet went on to describe that, after the divorce of your wife, who took custody of your children in Shanghai, you became very depressed and withdrawn for a time. She stated that she is very sad and worried for you, but seems to be also very concerned for herself. She had a mild stroke in September this year, and notes that “Chinese elderly always hope that when they are old they will have their children by their sides to take care of them.”
[13] A pseudonym
[14]Reference of [Tsao Yul] dated 22 October 2021, part of Exhibit “D2-2”
[15]Reference from [Offender Wen Tsao’s step-mother]
30You are to be given credit for the fact that you pleaded guilty at an early opportunity. I accept that in the context of being part of a relatively large syndicate, many of whom have chosen to go to trial, this can be an indication of some remorse. Further, as mentioned in relation to Mr Chang, your plea of guilty during the pandemic is to be afforded extra utilitarian benefit, given that the running of criminal trials has been very nearly impossible. Hence, you are entitled to a significant discount on the sentence which would otherwise have been imposed.
31I also take into account in your favour that you have been working in the laundry whilst in custody and have undertaken one course in release-related harm reduction (a certificate for which was tendered on the plea).[16] Although, as I have previously commented, it was no part of your counsel’s plea or any of the material put before the court that you had a drug or other substance abuse problem. As the Court has not been provided with any clear reason as to why you became involved in this serious offending, it is difficult to assess your prospects of rehabilitation. It is not a situation where you have been presented as a person with a drug or gambling addiction or some other issue which might be amenable to treatment. However, as I stated in relation to Mr Chang, given your lack of criminal history and your acceptance of responsibility for your offending by your early plea of guilty, one can only hope that your prospects of rehabilitation might be reasonably good.
[16]Exhibit “D2-3”
32As is the case with Mr Chang, I take into account that prison has been a more onerous experience during the pandemic because of the restrictions imposed. I have already referred to the nature of those restrictions when dealing with Mr Chang, and note that your counsel stated that you have been confined to one Skype call with your children per week, and any telephone calls need to be kept short as they are expensive. At the present time, the restrictions are ongoing. It is impossible to know when pre-COVID-19 conditions in prisons might be expected to be fully restored. Insofar as I am able to do so, I take the ongoing restrictions into account as a mitigatory factor.
33It was put on your behalf by Mr Tovey that, as you are a citizen of Singapore, where the penalties for drug offending are very stern and, indeed, fatal for some offences, you are burdened by anxiety that you will undergo further punishment in Singapore once you are deported back there. In addendum submissions,[17] Mr Tovey reproduced various sections of legislation in Singapore and submitted that your offending here in Australia “might well” constitute an offence under s13(a) of the Misuse of Drugs Act 1973, which carries a penalty of not less than two years and not more than 10 years’ imprisonment.
[17]Marked for identification “D2-2”
34Mr Tovey submitted that “plainly the defence cannot definitively say that [you] will be prosecuted under Singaporean law upon [your] return. However, nor can it be said with certainty that [you] will not”.[18] Hence, he urged that the court should take into account that your fear and anxiety are genuinely and legitimately held.
[18]Paragraphs 7 and 9
35It would seem that you have no connections here in Australia and never intended to settle here. Hence, the authorities which determine that you should have a reduction in sentence by reason of deportation because of uncertainty about whether you will be required to uproot yourself and return to your country of origin, and thereby will destroy your opportunity to settle permanently in this country, would appear to have no application.
36A court should only reduce a sentence based on the prospect of deportation, where there is sufficient evidence of both the risk of deportation and the impact of that risk.[19] It is plain that a sentencing court cannot be asked to speculate.
[19]Guden v The Queen [2010] VSCA 196 and Allouch v The Queen [2018] VSCA 244
37Although there would appear to be little doubt that you will ultimately be deported, as far of the impact of deportation is concerned, there has simply been the production by your counsel of sections of a statute of Singapore without any case law or expert evidence as to how such statute has been interpreted. In these circumstances, I find it is insufficient evidence to enable me to engage in the sensible quantification of any risk that you would undergo further punishment in Singapore. However, I take into account that deportation to Singapore probably would be some hardship to you, as you do not have a particularly strong connection to Singapore. Your partner lives in Taiwan and your two children live in Shanghai.
38According to the reference of your half-brother, Tsao Yul,[20] your step-mother is of Singaporean origin and, when she married your father, the family migrated to Macau, but then returned to Singapore in 1992. He refers to you being left to look after your younger siblings whilst your parents returned to Macau. It would appear that you were undergoing military service at this time. It is less than clear, but it seems that, after the completion of your military service, you have had very little to do with Singapore. From the material put before the Court, it appears that the link you have there is only your step-mother. I have no material to inform me whether you would be obliged to stay in Singapore or would be free to return to Taiwan or Macau, or wherever else you had been living prior to coming to Australia. There is a lack of clarity and paucity of evidence in this regard. However, I do acknowledge that being deported at the end of your sentence to somewhere which is not your usual place of residence, and where you have little family or business connections, may well play on your mind whilst you are in custody.
[20] A pseudonym
Sentencing principles
39The seriousness of the offence to which each of you have pleaded guilty is indicated by its maximum penalty of life imprisonment.
40It is also an offence for which Parliament has assigned a standard sentence of 16 years’ imprisonment pursuant to s5B of the Sentencing Act1991. This is only one factor that the court takes into account and “does not limit the matters that a court is otherwise required or permitted to take into account when determining the appropriate sentence” and nor does it affect the “instinctive synthesis” to be undertaken in arriving at a just sentence in all of the circumstances of the case.[21]
[21]s5B(3)(a) and (b) Sentencing Act 1991
41A standard sentence is not a starting point from which to add or subtract, but rather a guidepost to the appropriate sentencing range referrable to a hypothetical “middle of the range” offence, classified on the basis of “objective factors” only.[22] Those objective factors are factors without reference to the personal or particular offender or class of offenders and are wholly by reference to the nature of the offending itself.[23]
[22]Brown v The Queen [2019] 59 VR 462
[23]s5(3)
42Trafficking is a quantity-based offence and, generally speaking, the quantity involved will be the most reliable indicator of the gravity of the offence, although it is plain that sentencing is not simply a mathematical exercise correlated to the quantity of drugs comprising a charge. The total amount of methylamphetamine in mixed form seized by police was 11,097.5 grams, which is 14 times the large commercial quantity of 750 grams. However, this was in a variety of solid and liquid forms and had a purity which ranged between 1.5 per cent and 85 per cent.
43The statement of Detective Sergeant Ferwerda of the Clandestine Laboratory Squad made on 4 March 2021, noted that “Ice” sold throughout Victoria is generally of a purity of 80-90 per cent and that sale of a poorer purity to a consumer may result in issues for the supplier.[24] Of the methylamphetamine seized from the address where you were both residing, 819 grams had an average purity of 83 per cent which, if sold per ounce, could realise amounts in the range of $102,375 to $131,625.[25] In addition, there were 6.113 kilograms of methylamphetamine with a purity of 60 per cent. If sold per kilogram, this amount could realise prices ranging from $488,000 to $671,000. The balance of the combined weight of the remainder of the methylamphetamine seized was 56.554 kilograms and was of very low purity and no valuation was assigned to this.
[24]Exhibit “B”, page 7, [46]
[25]Ibid, page 14, [76]
44Detective Sergeant Ferwerda stated that, if the amount of the methylamphetamine with a purity of 83 per cent and 60 per cent (a total of 6.932 kilograms) had been sold per kilogram, it would realise a price ranging from $573,500 to $770,500. If sold per ounce, it would realise a price ranging from $712,775 to $894,625. If sold per gram, it would realise a price between $2,079,600 and $3,119,400.
45In response to a submission by Mr Tovey, that analysis of the drugs really pointed to a total amount of 4.2 kilograms of pure methylamphetamine, Mr Saunders for the prosecution fairly conceded that the prosecution could not maintain that the entirety of the 11.097 kilograms would have made its way into the community by being sold. He conceded that the process of manufacturing found at the property comprised various different compounds of various levels of purity. Mr Saunders submitted that, even if one accepted that it was appropriate to sentence each of you on the basis of an amount of 4.2 kilograms, this is over eight times the large commercial quantity specified by Parliament (750 grams), and shows the significant potential of the scope of this operation.
46In sentencing you, I take into account the submission made by Mr Tovey (which was adopted by Ms Hancock) and the concession made by the prosecution. Nevertheless, this is still very grave offending. Although neither of you were in the upper hierarchy of the syndicate, as cooks or workers you were essential to the success of this pernicious enterprise. Without people like you prepared to manufacture methylamphetamine, it would not be available for distribution in the community to enable the unscrupulous people who set up this clandestine laboratory to make handsome profits. It is a crucial role and, overall, your offending falls towards the mid-range of seriousness for this type of offence.
47The factors which indicate the objective gravity of this offending are that it was part of a well organised syndicate operation, the sophistication and extent of the clandestine laboratory, the quantity of pure methylamphetamine to which I have referred (4.2 kilograms) and, flowing from that, the significant potential for profit and attendant harm if the methylamphetamine were to be distributed in the community. The Court of Appeal has described methylamphetamine as “a scourge on society” and stated that the “prevalence of the offence of trafficking in methylamphetamine is… a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence.”[26] On the other hand, I note that your offending did not involve aggravating features of violence or intimidation, or presence of firearms, often seen in large commercial trafficking operations, nor is there any evidence that either of you were to be a distributor of drugs in the community and, as previously stated, neither of you were organisers of the syndicate.
[26] Haddara v The Queen [2016] VSCA 168
48The seriousness of your offending lies in the potential for a very significant amount of deleterious, illicit drugs to find their way onto the streets of our community and feed the misery of those who use them, with the attendant toll on our community, although there is no evidence as to how or when distribution of the drugs was to take place. That toll involves adverse effects on the physical and mental health of users, the commission of criminal offences by users, and adverse consequences to people who may the victim of such crimes, a burden on our health and hospital systems which must deal with users suffering drug overdoses or other impaired health issues, a burden on our police who must detect drug-related crimes and ensure that offenders are charged and brought before the courts, the costs to an entire community of a very significant number of people who come before the courts for drug-related crime and, then, of course, the additional cost of housing those people in custody to serve terms of imprisonment or funding rehabilitative dispositions in the community.
49It is well-known that illicit drugs have a very significant adverse influence in our society. Australia is a wonderful country, yet many lives and relationships are ruined by illicit drug use. It is offensive that you, as foreign nationals who came to this country initially with the hospitality of a tourist visa, should have considered it appropriate to become involved in this evil trade. Your cases are far removed from the pathetic street dealer who divides his pitiful purchase and mixes it with something and on-sells it in order to feed his wretched addiction.
50Although I note that you, Mr Chang, were a drug user, drug addiction is not necessarily a factor that calls for a lesser sentence than would otherwise be imposed.[27] The reticence of sentencing judges to regard drug addiction as a mitigatory factor rests upon the notion that the decision to commence taking drugs is voluntary and a likely consequence of that choice is the need to commit crimes to feed an addiction.[28]
[27]R v Proom [2003] SASC 88, [52] (Doyle CJ)
[28]The Queen v Henry [1999] 46 NSWLR 346 at 383 (Spiegelman CJ)
51Unhappily, drug trafficking is very prevalent in our society and, as I have said, is responsible for great harm. This Court must denounce your offending and place emphasis upon general deterrence in sentencing each of you. This means that I must send out a message to other people who may be minded to engage in drug trafficking by assisting in the manufacture of methylamphetamine, as you have done, that this conduct will be appropriately punished and it will not be worth their while.
52In imposing sentences for a crime like this, it is important that the community be protected as much as possible from the potential harm caused by illicit drug use. Having said that, I acknowledge the submissions made by each of your counsel that you have no prior convictions and, as it seems inevitable that both of you will be deported, there is unlikely to be a need to further protect the Australian community from you. In arriving at the sentences I intend to impose, I have had regard to the matters in s.5 of the Sentencing Act, many of which I have already mentioned. These matters include current sentencing practices, albeit that they are not a determinative or controlling factor and each offender must be sentenced according to individual factors in his case despite the call for uplifted sentences in Gregory v The Queen,[29] but bearing in mind also the need for a “perceptible amelioration of sentence” for pleas of guilty entered during the pandemic.[30]
[29] [2017] VSCA 51
[30] Worboyes v The Queen [2021] VSCA 169 at [31]
53Mr Chang, I accept the prosecution submission that you bear a higher moral responsibility for this offending than Mr Tsao. Although I am conscious of the principle of parity, which means that as a matter of justice, generally speaking, like offending should be punished with a like sentence, the fact is you have pleaded guilty to a charge on the indictment of trafficking in a large commercial quantity of methylamphetamine of 4 months compared to Mr Tsao’s involvement over a period of 1 month. Although you each carried out a role as a cook of the methylamphetamine, the evidence points to you, Mr Chang, having a longer association with this large syndicate and the fact that you played a role in moving material to and buying chemicals for the residence where you were arrested. The prosecution has referred to evidence of your association with the other two residences where clandestine laboratories were setup by the syndicate and a large commercial quantity of methylamphetamine was seized, but I make it plain that you are in no way to be sentenced for the trafficking at either of those other houses. The footnotes in the prosecution opening, some of which have been replicated in these sentencing remarks, refer to receipts for the purchase of acetone and cleaning solvents on various dates in August 2019 and on further dates of 16 September 2019 and 30 November 2019. The dates of these receipts are all outside the period of offending on the indictment to which you have pleaded and I make it plain that I do not take them into account in sentencing you.
54There can be no doubt that the only appropriate sentence for this grave offending is a significant term of imprisonment.
55Mr Chang, on one charge of trafficking in a large commercial quantity of methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 8 years and 9 months.
I direct that you serve a period of 6 years and 5 months’ imprisonment before becoming eligible for parole.
I declare a period of pre-sentence detention of 560 days to be time reckoned as already served under the sentence imposed this day.
Pursuant to section 6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been 11 years and 6 months’ imprisonment, with a non-parole period of 7 years and 6 months.
56Pursuant to section 89DI of the Sentencing Act, I order that you be declared a serious drug offender.
57Mr Tsao, on one charge of trafficking in a large commercial quantity of methylamphetamine, you are convicted and sentenced to be imprisoned for a period 7 years and 9 months.
I direct that you are to serve a period of 5 years and 2 months before becoming eligible for parole.
I declare a period of pre-sentence detention of 560 days to be time reckoned as already served under the sentence imposed this day.
Pursuant to s.6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been 10 years’ imprisonment, with a non-parole period of 6 years and 6 months.
58Pursuant to section 89DI of the Sentencing Act, I order that you be declared a serious drug offender.
59Mr Chang and Mr Tsao, having each been convicted of a Schedule 1 offence, namely, trafficking in not less than a large commercial quantity of a drug of dependence, pursuant to section 33(1) of the Confiscation Act 1997, I order that the property referred to in the Schedule be forfeited to the Minister, namely, sums of $635.00 AUD & $1 USD in cash, a separate sum of $185 AUD, a Vivo Mobile phone, with 1 x Optus SIM card, 1 x Telstra SIM card and 1 x 4GB Micro SD card and one Telstra mobile phone with SIM card.
---
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL DIVISION INDICTMENTS - L11100986 L11110709
B E T W E E N:
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
[LIAN CHANG]
&
[WEN TSAO]
AMENDED PROSECUTION PLEA OPENING
Date of Document: 25 October 2021
Filed on behalf of: The Prosecution
Solicitor for Public Prosecutions Solicitors Code: 7539
565 Lonsdale Street Tel: 9603 7666
MELBOURNE Mr D Bosso
VIC. 3000 Direct Tel: 9603 2618
THE ACCUSED
[Lian Chang]
1. [Lian Chang] (“[Chang]”) was born on [redacted] 1987. At the time of his arrest he was 32 years of age He is currently 34.
2. [Chang] is a Malaysian citizen. At the time of his arrest, he was residing in Australia unlawfully as his visitor Visa had expired on 19 January 2018.
3. [Chang] is known by the anglicised name “Alvin” or the nickname “Fatty”.
4. At the time of his arrest, [Chang] was residing at 22 Ararat Street Tarneit with the co-accused [Tsao].
5. During the investigation, [Chang] used mobile phone service 0421 511 550.
6. [Chang] is charged with:
· 1 x charge of trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) between 1 January 2020 and 7 May 2020.1
[Wen Tsao]
7. [Wen Tsao] (“[Tsao]”) was born on [redacted] 1970. At the time of his arrest, he was 49 years of age. He is currently 50.
8. [Tsao] is a citizen of Singapore. He arrived in Australia on 4 February 2020.
9. At the time of his arrest, he was residing at 22 Ararat Street Tarneit with the co- accused [Chang].
10. [Tsao] is charged with:
· 1 x charge of trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) between 9 April 2020 on 7 May 2020.2
Background
11. The Accused were arrested and charged as the result of an investigation codenamed Operation Franksan.
12. Operation Franksan was an investigation conducted by the Victoria Police Clandestinely Laboratory Squad. It commenced in February 2020 in concluded with an arrest phase June 2020.
13. Operation Franksan investigated the illegal activities of a drug manufacturing syndicate responsible for the importation of large quantities of precursor chemicals, and the large-scale manufacturing and trafficking of methylamphetamine throughout Melbourne and regional Victoria.
Co-Accused
14. 15 people were charged as a result of Operation Franksan.
1 Contrary to section 71 of the Drugs Poisons and Controlled Substances Act 1981. (Maximum penalty life imprisonment).
2 Contrary to section 71 of the Drugs Poisons and Controlled Substances Act 1981. (Maximum penalty life imprisonment).
15. Committal proceedings were conducted in the Melbourne Magistrates Court commencing on 28 July 2021.
16. The Accused before the court resolved the charges against them during the committal, accepted a hand up brief and pleaded guilty to the charges for which they are to be sentenced. There was no cross-examination by Mr [Tsao]. Mr [Chang] cross-examined several witnesses, who were required for cross- examination by the co-accused, while plea negotiations were ongoing.
17. At the conclusion of the committal, the cases against 4 of the co-accused were resolved and preceded by way of summary plea. Those co-accused were:
· Chexmang Wong (“Wong”);
· Swee Chin Lim (“Swee Lim”);
· Cyrene Liew (“Liew”); and
· Hanyin Zhang (“Zhang”).
18. The other 9 co-accused were committed for trial in the County Court at Melbourne where they face charges of trafficking in a large commercial quantity of a drug of dependence (methylamphetamine) 3 and/or possessing material for trafficking in a drug of dependence.4 Those co-accused are:
· [redacted];
· [redacted];
· [redacted];
· [redacted];
· [redacted];
· [redacted];
· [redacted];
· [redacted]; and
· [redacted].
3 Some of the accused face multiple charges of this offence.
4 Contrary to section 71A of the Drugs Poisons and Controlled Substances Act 1981.
Overview
19. During the investigation the following investigative techniques were used:
· Physical surveillance;
· Telephone intercepts on the mobile phones of:
o [redacted];
o [redacted]; and
o [redacted].
· Listening and tracking devices installed in the following motor vehicles;
o A 2018 Toyota Land Cruiser ([redacted]). This vehicle was registered to [redacted] a company controlled by [redacted]’s partner Hanyin Zhang; and
o A Holden Crewmen Sedan ([redacted]) registered to [redacted].
20. The syndicate was structured in a loose hierarchical manner with certain individuals in charge. They directed the activities of other members who undertook the more “hands-on” activities.
21. The roles of the syndicate members can be described in general terms as follows:
· Syndicate heads who arranged for the:
o Importation of equipment and precursor chemicals;
o Arranged for leasing the properties where the manufacturing process could take place;
o Organised the distribution of equipment and chemicals to be used in the manufacturing process; and
o Arranged for the acquisition of various properties with the proceeds derived from the drugs that had been manufactured.
· The “cooks” or workers whose task was to manufacture the
methylamphetamine in the rented properties; and
· Syndicate members who were used to move, conceal and deal with the proceeds derived from the sale of the drugs that had been manufactured.
22. During the investigation Police located 3 leased residential properties which were being used by the syndicate. Those properties were:
· 55 Direction Drive, Tarneit;
· 27 Rockgarden Drive, Truganina; and
· 22 Ararat Street, Tarneit.
23. In addition, large quantities of precursor chemicals, cash and laboratory equipment were located at addresses in Melbourne and regional Victoria.
The Role of the Accused before the Court
24. [Tsao]’s offending is confined to his involvement in the manufacture of
methylamphetamine which took place at 22 Ararat Street Tarneit.
25. The charge period alleged in his indictment (9 April 2020-7 May 2020) reflects the period of time that [Tsao] was at the property.
26. While the Crown does not allege that [Chang] was directly involved in the manufacture of methylamphetamine at any address other than Ararat Street, there is evidence that establishes he had a longer involvement in the activities of the syndicate. This is reflected in the longer charge period in his indictment (20 January 2020-7 May 2020).
27. It is the Crown case that both Accused can be classified as cooks or workers within the syndicate. Both Accused appeared to be residing at Tarneit Street at the time of their arrest.
THE INVESTIGATION
53 Direction Drive Tarneit ([Chang] only)
28. 53 Direction Drive, Tarneit is a 4 bedroomed residential brick veneer home.
29. Tao arranged for the rental of this property and on 1 August 2019, the co- accused [redacted] paid the bond to the real estate agents.
30. On 14 November 2019 offices of the Victoria Police Surveillance Unit were deployed on Operation Beans an unrelated operation.
31. At 12: 43 p.m. they observed [redacted] arrive at 53 Direction Drive Tarneit his white Holden Crewmen utility. [redacted] remained at the Direction Drive address for approximately 40 minutes.
32. On Monday 10 February 2020 Detective Sgt’s Solomon and Down attended at 53 Direction Drive to make enquiries concerning Operation Beans. At that time the co-accused [redacted] and [redacted] were present.
33. While inside the property Sgt Down had cause to look into the main bathroom. He observed a large rotary evaporator, unknown liquids in assorted Pyrex glassware and a large quantity of acetone. He further noticed that an adjacent room was locked, and he could hear what he described to be the sound of fans operating within the room.
34. Down formed the view that there was a clandestine laboratory operating within a house. [redacted] and [redacted] were subsequently arrested and removed from the house pending the arrival of the Clandestine Laboratory Squad.
35. A search warrant issued under section 81 of the Drugs Poisons and Controlled Substances Act 1981 (“the Act”) was obtained. During the subsequent search Police located evidence of a large-scale recrystallisation (drug manufacture) process being undertaken.
36. 163 clandestine laboratory-related exhibits were seized from within Direction Drive together with methylamphetamine weighing 5014. 3 g (pure).
37. During the search Police also located:
· Rental documents linking [redacted] to 27 rock garden drive Truganina; and
· An Apple iPhone belonging to [redacted].
38. The contents of [redacted]’s Apple iPhone were subsequently downloaded and among the WeChat conversations located on the phone was a conversation dated 29 January 2020 between [redacted] and [redacted] regarding [Chang] and the moving of equipment.
39. Fingerprint analysis of some of the exhibits seized revealed:
· A latent fingerprint impression belonging to [Chang] (left middle finger) on a glass oven tray; 5and
· A latent fingerprint belonging to [Chang] (right middle finger, left palm) on a glass condenser.6
27 Rockgarden Drive Truganina ([Chang] only)
40. 27 Rockgarden Drive Truganina is a 4 brick house. [redacted] organised the rental of the property through an estate agent called Terry He.
41. Following the arrest and subsequent remand of [redacted] and [redacted] on 10 February 2020 He attended Rockgarden Drive to follow up on unpaid rent. Upon entering the house he made a number of observations that led him to call the Police.
42. On 27th February 2020 Police executed a search warrant issued under section 81 of the Act on the Rockgarden Drive address.
43. They located:
· Scientific glassware and apparatus;
· Gloves;
· Liquids suspected to contain methylamphetamine;
· Liquids suspected to be prescribed precursor chemicals;
· Solvents and acids suspected to have application in the drug manufacturing process;
· 2 toothbrushes; and
· Assorted rubber gloves.
44. The liquids seized from 27 Rockgarden Drive were analysed and 8 of the liquids contained methylamphetamine in various purities. The total of pure methylamphetamine detected in the liquids was 3519 g.
45. Investigators suspected that the premises may have previously been used for the manufacturing of methylamphetamine but was currently being used for storage.
46. [Chang]’s DNA was detected on:
· One of the toothbrushes; and
· Some of the gloves.
47. On Thursday 16th April 2020, DSC Roberts and DSC Penno attended 22 Ararat Street, Tarneit to conduct a door knock for another unrelated incident. DSC Roberts and DSC Penno spoke to [redacted] who was inside the address.7
22 ARARAT STREET, TARNEIT
48. 22 Ararat Street, Tarneit is a brick house in a modern residential development.
49. It is a rental property being managed by J & Maxwell Group Real Estate. The house is owned by [redacted] who lives in China.
50. The lease of the house was recorded with the Residential Tenancy Bond Authority in the name of Ezra Noel Bin Gindol. The bond began on 09/04/2020. Investigators have not been able to identify or locate Gindol.
51. On 7 May 2020, search warrants issued the Act, and 465 Crimes Act 1958 were executed at 22 Ararat Street, Tarneit.
52. Upon entry to the premises, Police observed the Accused [Chang] in the hallway. [Chang] ran towards the rear of the house and was chased into a bedroom.
53. Police entered the bedroom and found [Chang] and [Tsao] attempting to flee through the bedroom window. Both men were subsequently arrested.
54. An active clandestine drug laboratory was seen to be producing a large quantity of methylamphetamine.
55. During the search large number of items were located items were catered located including:8,9
· 197 x Clandestine laboratory exhibits which included;10
o Clandestine laboratory equipment;
o A large quantity of chemicals; and
7 Statement – DSC Roberts 16/04/2020
8 Exhibits 247 & 248 – Section 81 Drugs, Poisons, Controlled Substances Act 1981 &
465 Crimes Act 1958 warrants
9 Exhibits 249 & 250 – DVI Exhibit Log & Photographs
o A large commercial quantity of methylamphetamine in solid form.
56. Following the processing of the clandestine laboratory, a further 27 exhibits were seized by investigators including:11
· Vehicle [redacted] which was parked in the garage.
Electronic Devices
· A Vivo mobile phone located in the loungeroom belonging to [Chang].12
Documents / Miscellaneous
· A blue disposable glove located on [Tsao]’s hand at the time of his
arrest.13
· A Malaysian passport in the name of [Chang] located in bedroom 1.14
· A Republic of Singapore passport in the name of [Tsao] located in bedroom 2.15
· A wallet and personal cards in the name of [Chang] located in bedroom 1.16
· $820 cash (total) - $635 located in [Chang]’s wallet found in bedroom 1, and
$185 found in the pocket of tracksuit pants in bedroom 2.17
· A Bunnings receipts dated 24/04/20 with itemised purchases of
Acetone and disposable gloves located in [Chang]’s Louis Vuitton bag in bedroom 1.18
· Assorted receipts located in bedroom 2 in a black handbag on the floor.19
· Assorted receipts located on the kitchen bench.20
11 133 Exhibits 449 – CLS Property Seizure Record
12 Exhibit 459 – Vivo mobile phone
13 Exhibit 451 – Blue glove
14 Exhibit 452 – Malaysian Passport in the name of - [CHANG]
15 Exhibit 457 – Singapore Passport the name of - [TSAO]
16 Exhibit 454 – Wallet with personal cards belonging to [CHANG]
17 Exhibits 455 & 458 - $820 cash (total)
18 Exhibit 456 – Bunnings receipts for Acetone and rubber gloves
19 Exhibit 463 – Assorted receipts
20 Exhibit 465 – Assorted receipts
· Paying Jackeroo branded fluorescent T-shirt located in bedroom 2.21 [Chang] is depicted wearing the same shirt at Aurora Chemicals on the 3 February 2020 while purchasing chemicals. 22
· A disposable foam esky lid with Chinese writing located in bedroom 3 in the cupboard.23 (Translation of written foreign notes).24
· A plastic container with assorted drug paraphernalia and unknown crystal substance located under the table in the lounge room near the couch.25
57. Investigators attended the neighbouring premises and obtained CCTV footage from an address that covered 22 Ararat Street, Tarneit. 26
58. Upon reviewing the CCTV footage, the following passages have been identified as being relevant to the investigation:
59. On 25 April 2020:
· At 5:10 pm, a male identified as [Chang] is depicted getting into a white Honda Civic. A male identified as [Tsao] is observed carrying a box and placing it into the Honda before both [Chang] and [Tsao] leave the address in the Honda.
60. On 26 April 2020:
· At 5:13 pm, a white Toyota Kluger arrives at the address with a male identified as [redacted] driving.
61. On 27 April 2020:
· At 4:24 pm, a white Toyota Kluger arrives at the address driven by [redacted]. [redacted] is depicted delivering unknown items to the address.
62. On 30 April 2020:
· At 1:05 pm, a white Toyota Kluger arrives in front of 22 Ararat Street. [Chang] is depicted exiting the front door and receives an unknown parcel from the vehicle before re-entering 22 Ararat Street.
21 Exhibit 462 – Jackaroo brand fluro T-shirt
22 Exhibit 865 – CCTV still images from Aurora chemicals on 03/02/2020
23 Exhibit 466 – Disposable foam esky lid
24 Exhibit 466.1 – Translation of Exhibit 466
25 Exhibit 461 – Plastic container with drug paraphernalia
26 Exhibit 855 – CCTV footage depicting 22 Ararat Street, Tarneit
63. On 1 May 2020:
· At 5:50 pm, the garage of the premise opens and a white Honda Civic is observed. A male who investigators believe to be [Tsao] enters the vehicle and leaves the address.
64. On 2 May 2020:
· At 9:38 pm, a white Toyota Kluger arrives. A male identified as [redacted] exits the vehicle and delivers several unknown packages to 22 Ararat Street.
65. On 5 May 2020:
· At 1:39 pm, a white Toyota Kluger arrives. A male identified as [redacted] carries an unknown item from the vehicle and enters 22 Ararat Street.
· At 1:46 pm, [redacted] is observed leaving 22 Ararat Street in the Toyota Kluger.
· At 3:43 pm, [redacted] is depicted returning to 22 Ararat Street driving the Toyota Kluger.
· At 5:45 pm, [redacted] is depicted leaving the address driving a white Honda Civic.
Forensic Analysis (22 Ararat Street, Tarneit) Drug Analysis
· The solid materials seized from 22 Ararat Street, Tarneit were analysed and weighed. The result was a total of 11,097.5 grams of mixed substances containing methylamphetamine with purities between 1.5% to 85%.27 28 29
· A large commercial quantity of methylamphetamine (mixed weight) is defined under the Act to be any quantity in excess of 750 g.
· The quantity of methylamphetamine contained in the exhibits seized at Ararat Street is slightly more than 14 times the large commercial quantity.
27 Statement – Chemist – Ian NEELY
28 Exhibit 837 – Certificate of Analysis
29 Exhibit 839 – drug analysis / certificate
Fingerprints
66. [redacted]’s fingerprints were located on:
· A sake bottle in the kitchen area and the fridge in which there were glass dishes with methylamphetamine and solvent bottles;
· 2 x glass condensers located in the laboratory; and
· A rectangle glass dish also located in the laboratory.30
67. [Chang]’s fingerprints were located on: 31
· The walls and door of bedroom 1, the shower screen of the main bathroom, Heineken Stubby, a coke can, the sliding door in bedroom 3, a glass cooking dish in bedroom 3, a purple décor container in bedroom 4, the hallway walls;
· Items of laboratory equipment such as glass funnel, large glass condenser and glass reservoir; and
· In the vehicle, [redacted] Honda Civic parked in the garage.
68. [Tsao]’s fingerprints were located on: 32
· The door frame to garage and bedroom 2 door.
69. B Koh’s fingerprints were located on: 33
· The sake bottle in the kitchen area and the fridge in which there were glass dishes with methylamphetamine and solvent bottles.
Biology
70. 7 samples were taken from multiple disposable gloves yielding the following results:
· [Chang]’s DNA located on 6 gloves.
71. A sample taken from a face respirator yielded the following results:
30 Exhibit 847 – Latent fingerprint report ([redacted])
31 Exhibit 850 - Latent fingerprint report ([CHANG])
32 Exhibit 846 - Latent fingerprint report ([TSAO])
33 Exhibit 851- Latent fingerprint report ([redacted])
· [redacted]’s DNA
· [Chang]’s DNA (noted as the major contributor)
72. 5 samples taken from toothbrushes located in bedroom 1 (in which there were multiple clandestine laboratory glassware items and chemicals ) yielded the following results:
· [Chang]’s DNA located on 4 samples
EVIDENCE OF THE FURTHER INVOLVEMENT OF [CHANG]
73. Following the arrest of [Chang] and [Tsao] on 7 May 2020 the investigation into the co-accused continued.
74. [redacted] was arrested on 2 June 2020.
75. The investigative phase of Operation Franksan concluded on 30 June 2020 with the execution of search warrants at several locations in Victoria and Tasmania and the arrest of the remaining co-accused.
76. At this time evidence of the further involvement of [Chang] in the activities of the syndicate was identified.
77. 88 Tannock Street, Balwyn North is a freestanding brick residential home. The house is owned by [redacted] and [redacted]. [redacted] was renting bedroom 2.
78. On 2 June 2020, search warrants issued under Section 81 of Act 1981 and Section 465 Crimes Act 1958 were executed at 88 Tannock Street, Balwyn North.
79. [redacted] was arrested inside locked bedroom 2.
80. During the search investigators located inter alia an Apple iPhone which was seized and analysed. Among the content downloaded and interpreted was:34
· A WeChat conversation between [redacted] and [Chang] relating to the manufacture of methylamphetamine dated between 15/03/2019 - 02/04/2020.
34 Exhibit 487: Exhibit 487.1-We Chat conversation between Cheah and [Chang]
· A video sent to [Chang] via WeChat of an Asian male speaking about drug manufacturing.35
81. On 30 June 2020, search warrants issued under Section 81 Act 1981 and Section 465 Crimes Act 1958 were executed at 11 Kingsley Crescent, Mont Albert.
82. 11 Kingsley Crescent, Mont Albert is owned by Meizen Chen, who lives in China. There are no bonds held on the premises.
83. It is unknown to investigators how the property owner is known to [redacted] and how he has possession of the property.
84. [redacted] was arrested at the premises.
85. Investigators searched the premises and seized inter alia a Huawei phone located in the theatre room.36
86. The contents of the phone were downloaded and with the assistance of interpreters the following conversation was identified:
· A We Chat conversation dated 30 March 2020 between [Chang] and [redacted] relating to moving between the addresses 11 Ceremony and 22 Ararat and 39 Columbus in which the code tells [Chang] not to use so much “Kiam Piah” (Salty Biscuit).37
87. Among the documents located by investigators, there was a Bunnings receipt 38 with a written note in Asian handwriting which translated as “fat kid” ([Chang]) and a smart invoice in the name of Alvin ([Chang]).39
88. In mid-2020 [redacted] was renting 1/28 Mount Royal Road, Kingston, Tasmania where she was living with her 2 young children and mother-in-law.
89. An Extra-Territorial search warrant was executed at 1/28 Mount Royal Road, Kingston (Tasmania) by Tasmanian Police on 30th June 2020.
90. [redacted] was not arrested at the time the warrant was executed however Police searched the premises.
35 Exhibit 487.2-Video of Asian males talking about drug manufacture.
36 Exhibit 554-Blue Huawei mobile phone
37 This is a codeword investigators identified as being used by members of the syndicate when discussing drugs or drug manufacture
38 Exhibit 574
39 Exhibit 574.3 Bunnings receipt with written note "fat kid" and a smart invoice in the name of Alvin
91. Among the items seized was an Apple iPhone 40 The content of this handset has been downloaded interpreted. 41 Included among the conversations identified was:
· A WeChat conversation in which [redacted] instructs [redacted] to purchase Hydrochloric Acid. During the chat, [redacted] sends a screenshot of a contact for Fat Kid ([Chang]). The conversation occurred between 09/02/2020 - 25/02/2020.42
[Chang]-record of interview
92. At the time of his arrest on 7 May 2020 [Chang] was unable to be interviewed due to health concerns that appeared to investigators to be drug-induced.
93. He was subsequently interviewed at Ravenhall Prison on 23 October 2020.43
94. During that record of interview [Chang]:
· Gave his date of birth as 21 August 1987;
· Stated that he is not an Australian citizen or permanent resident;
· Made no comment in respect of allegations about 53 Direction Drive, Tarneit;
· Made no comment about the vehicle [redacted];
· Made no comment to allegations that he had attended Aurora Chemicals in Dandenong;
· Made no comment to allegations that he had had conversations with [redacted];
· Would not comment on the names of any other people involved in the syndicate.
95. [Chang] agreed to provide his fingerprints and an intimate forensic sample for DNA analysis when requested to do so by investigators.
40 Exhibit 788
41 Exhibit 796 – Download of Apple IPhone (Ex: 788)
42 Exhibit 796.19-we chat between [redacted] and [redacted] regarding the purchase of hydrochloric acid.
43 Exhibit 929-transcript of master disk of police interview-[Chang].
[Tsao]-record of interview
96. Following his arrest, on 7 May 2020, [Tsao] was interviewed by Police in the form of a digitally recorded record of interview.44
97. During that record of interview [Tsao]
· Stated he normally resides at RUA 5B, 82 RUABOLONG, Macau.
· Gave his date of birth as 11th of October 1970.
· Stated that is not an Australian Citizen or Permanent Resident.
· Said that stayed at the Victoria Hotel when he first arrived in Australia.
· Stated that his belongings are currently at 22 Ararat Street, Tarneit and he has been staying there for a month.
· Would not comment on how he came to be staying at the house or who owns the house.
· Stated that the other person at the house when he was arrested was
named “fat boy” and that he didn’t know his real name.
· Stated that he was living in the third bedroom of the house. Next to the lounge room.
· Made no comment concerning the clandestine laboratory located in the 2 rear rooms.
· Stated that the white coloured Honda that was parked in the garage
belonged to “Fat Boy.”
· Confirmed that he was wearing gloves at the time of his arrest but would not comment as to why.
98. [Tsao] agreed to provide his fingerprints and an intimate forensic sample for DNA analysis upon being requested to do so by investigators.
Standard sentencing scheme
· Section 71 (2) of the Drugs Poisons and Controlled Substances Act 1981 provides that trafficking in a large commercial quantity of a drug of dependence is a
44 Exhibit 915-transcript of master disk of police interview-[Tsao].
standard sentence offence, therefore, sections 5A and 5B of the Sentencing Act
1991 are enlivened.
99. The standard sentence of imprisonment for the charge of trafficking in a large commercial quantity of a drug of dependence is 16 years imprisonment.
PRESENTENCE DETENTION.
100. Both Accused were arrested on 7 May 2020. They have been remanded in custody since the date of their arrest.
101. By the date of their plea each accused will have served 536 days by way of presentence detention (not including the day of the plea).45
ANCILLARY ORDERS
102. Section 6AAA of the sentencing Act 1991 applies.
103. Applications will be made for Forfeiture of items used in the offending. This application will be filed and served before the plea.
John Saunders Owen Dixon Chambers East
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