Director of Public Prosecutions v Chen
[2015] VCC 1605
•23 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00291
CR-15-00292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LI PING CHEN |
| AND |
| SHU YI LIN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 October 2015 | |
CASE MAY BE CITED AS: | DPP v Chen & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1605 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Fox | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Gullaci Ms M. Mahady | Balmer & Associates Lethbridges Barristers and Solicitors |
HIS HONOUR:
1 Mr Chen and Mr Lin, you may both remain seated until I ask you to stand. On Monday, 12 October 2015 – can you print up a copy of the sentence, please. Mr Interpreter, what I am doing is copying my sentence so that you can read it as we go along. It may assist you in your function.
2 INTERPRETER: Thank you, Your Honour.
3 HIS HONOUR: I should have thought of this earlier. I apologise.
4 On Monday, 12 October 2015, Li Ping Chen and Shu Yi Lin, you each pleaded guilty to a charge of trafficking a commercial quantity of a controlled drug, namely methamphetamine, between 25 May 2014 and 29 July 2014, contrary to s302.2(1) of the Criminal Code (Cth).
5 A commercial quantity of the controlled drug methamphetamine is not less than 750 grams of the pure substance.
6 The quantity of drugs trafficked was 116.4 kilograms stored in 117 separate packages that when analysed contained 92.8 kilograms of pure methamphetamine.
7 The maximum penalty for this offence is life imprisonment.
8 The charge was put against you on a joint commission basis pursuant to s11.2A of the Code as you, together with Ou and Lan, were part of a joint agreement to traffic a commercial quantity of methamphetamine. It was put against you that your offending occurred principally through being in possession of the drugs for sale. You, Chen and Lin, had physical possession of the drugs at the time of your arrest on 29 July 2014 and it is asserted against you that all four offenders had joint possession pursuant to the agreement to traffick the methamphetamine. It is also put against you that the trafficking also occurred by each of the four offenders transporting and concealing the drugs, and weighing, handling and/or packaging the drugs.
9 Tendered as Exhibit A on the plea was the prosecution plea opening together with a chronology. The opening was read aloud in Court.
10 In summary, each of you with Ou and Lan travelled from Taiwan together, arriving in Melbourne on 25 May 2014. The four of you sat together on the trips from Taipei to Hong Kong and from Hong Kong to Melbourne. You each had visas permitting you to stay in Australia for three months. You each had return tickets to Taiwan, leaving Australia on 15 July 2014. However, the return portions of the tickets were never used. You were all arrested on 29 July 2014.
11 On the incoming passenger cards appropriate to you and your two co-offenders Ou and Lan you all indicated that you intended to stay at the Grand Hyatt Hotel upon arrival in Melbourne.
12 On 3 June 2014, Ou attended a pre-lease inspection of an apartment located at 2108/283 City Road, Southbank. You, Chen and Lin, were captured on CCTV delivering large shell-backed suit cases to that apartment at 4.26pm and 6.42pm that day.
13 On 4 June 2014, Ou formally leased the apartment.
14 On 5 June 2014, you, Chen, attended a real estate agent’s office in Docklands and inspected Apartment 4703/639 Lonsdale Street, Melbourne. The following day you formally leased that apartment. It is to be noted that both you, Chen and Ou, used the same mobile telephone number as a point of contact for the real estate agents with whom you negotiated your leases.
15 The case against each of you is based principally on close-circuit television footage from each of the two apartments occupied by you and your two co-offenders. Throughout the period of 3 June 2014 to 29 July 2014, CCTV footage and physical surveillance of you reveals that you, together with your two co-offenders, Ou and Lan, were in frequent contact with each other.
16 When you, Chen and Lin, were arrested at your Lonsdale Street apartment, police seized two large hard shelled black suit cases containing methamphetamine and a further two large hard shelled red suit cases containing methamphetamine. As well, four mobile phones and a number of Vodafone prepacks were seized at that address. When your co-offenders, Ou and Lan, were arrested at their City Road apartment, nine mobile phones, including a blackberry handset and a SIM card were seized as well as a set of electronic scales, which were found in the same room as Lan’s passport.
17 All of the phones found at the two apartments were subscribed in false names and addresses. Fingerprint analysis of the suit cases and drugs seized revealed that the fingerprints of you, Lin, and Lan and Ou, were found on the outside of one black suit case. The fingerprints of you, Chen and Lin, and one fingerprint of Ou were found on plastic bags containing the drugs located inside a black suit case. A fingerprint of you, Lin, was found on a black – I beg your pardon – on a plastic bag containing drugs located in a second black suit case. Fingerprints of you, Lin, were found on plastic bags containing drugs located in one of the red suit cases. Three fingerprints of you, Chen, and one fingerprint of you, Lin, were found on plastic bags containing drugs located in the second red suit case. In respect of your finger prints Lin they were found on four “middle” bags of triple–bagged drug packages. The electronic scales located in the City Road apartment were also examined for fingerprints. A fingerprint identified as belonging to Ou and two fingerprints belonging to you, Lin, were located on the top of the scales. These electronic scales were drug-trace tested and those tests found that traces of methamphetamine were on the glass top of the scales.
18 When interviewed under caution at Australian Federal Police Headquarters in Melbourne on 29 July 2014, you, Lin, admitted travelling and living with Chen. You stated falsely that Chen was the only person you had travelled with. You stated that you did not have a phone in Australia. You falsely stated that you had never seen anyone else in the Lonsdale Street apartment other than Chen. You emphasised that the suit cases were not yours and that the contents of them did not belong to you. You said that the suit cases were already present in the Lonsdale Street apartment when you moved in. When told that there was CCTV footage of you moving suit cases from City Road, you stated that it was your luggage and that Chen had borrowed your clothes to lend to somebody else and that when you went there for a chat, you took back the clothes.
19 When you, Chen, were interviewed under caution at Australian Federal Police Headquarters in Melbourne on 29 July 2014, you exercised your right to remain silent in the absence of speaking to “your trusted lawyer”.
20 On 19 June 2015, you, Chen, made a record of interview to Australian Federal Police. This interview has proved to be a matter of moment in both these plea proceedings as well as the trial of your co-offenders, Ou and Lan.
21 Chen, you were called on your plea and attested to the truth of the record of interview conducted on 19 June 2015. The circumstances of how this interview came about needs to be aired. Upon arrest, as was your right, you declined to be interviewed in the absence of consulting your trusted lawyer. Thereafter, there was no contact made by you or your legal representatives with the police. On the morning of what was to be a contested committal, on 5 November 2014, you pleaded guilty and your matter proceeded thereafter by way of hand-up brief. Thereafter a number of plea dates were fixed and vacated because of difficulties that you had securing representation.
22 On 9 June 2015, the trial of your two co-offenders, Ou and Lan, commenced before me. During the trial, and without notifying the solicitor who was then representing you, Chen, the solicitor for Ou visited you in gaol and subsequently Ou's counsel, Mr Morrissey, of Her Majesty’s Counsel, informed me that you could give relevant evidence in the trial. I was also informed that you wanted to speak to police about your offending.
23 The ultimate effect of this indication by you was to cause the trial to abort. The retrial is listed to commence on 4 November this year.
24 In summary, in the June of 2015 record of interview, you told police that you came to Australia at the request of your employer, Ahu. You came to Australia to take care of some stuff for Ahu. You were given $10,000 in cash and a SIM card by Ahu. On arrival in Australia you placed the SIM card in a handset in order to communicate with Ahu.
25 You received instructions from Ahu via text. Acting on instructions, you went with your co-offender, Lin, to a house in the country where you found a number of suit cases full of methamphetamine. You and Lin remained at the house in the country for a week. Upon instruction from Ahu, you returned to Melbourne. You attended at Ou's City Road apartment that same day, 3 June 2014, the day Ou commenced to occupy the apartment and you stayed with him. You said that you told Ou that the suit cases contained money. You said you did not open the suit cases in Ou's presence. You said you stayed with Ou for less than a week and then rented your own apartment in Lonsdale Street, Melbourne.
26 It was at the Lonsdale Street apartment that the bags of methamphetamine were re-bagged by you. You did this at Ahu’s instructions after observing that the methamphetamine was wet. In respect of your co-offender, Lan, you said that you never told him what was in the suit cases and that he never asked. As to the scales found at Ou's City Road apartment, you said they had come from the house in the country and that they had been left by you at the City Road apartment.
27 You were cross-examined at length by the prosecutor, Ms Fox of counsel. I found you to be an unsatisfactory witness. Your inability to recall and/or explain how, why and in what circumstances you and Ou agreed to come to Australia; conversations between you and Ou about your travel arrangements; the purchase of tickets and plans for your trip to Australia beggars belief. The same can be said for your evidence concerning your travel to, stay at and return from the house in the country.
28 I am satisfied on balance that Ahu or someone performing that role, the role attributed to him, existed and you were his agent. Likewise I am satisfied as to the truth of your admission against interest that the methamphetamine seized by police on 29 July 2014 was in your possession in suit cases when you and Lin attended at Ou’s apartment at City Road on 3 June 2014.
29 As to your exculpatory statements in respect of Ou and Lan, I do not accept them. The circumstances surrounding you and your three co-offenders’ travel to Australia, the obtaining of accommodation, the level of association between you and the fingerprint and telephone evidence militate against accepting you in respect of your association with each of your three co-offenders and your exculpatory statements in respect of Ou and Lan.
30 Mr Gullaci of Counsel, who appeared on your behalf, Chen, properly conceded that your offending involved a significant quantity of methamphetamine and that you offended over a period of two months. He conceded that you pleaded guilty to trafficking on the basis of:
(a)being in possession of methamphetamine for sale;
(b)transporting and concealing the drugs;
(c)handling the drugs; and
(d)packaging the drugs.
31 Mr Gullaci submitted that you and Lin ought to be regarded as equals in this criminal enterprise. He further submitted that I ought to be satisfied on balance of probabilities that Ahu or a person like him existed and that this places you below that person who was the controlling mind of this criminal combination.
32 Mr Gullaci informed me that you earned approximately 35,000 Taiwanese dollars per month and that Ahu offered you 500,000 Taiwanese dollars for your sortie to Australia. Mr Gullaci submitted candidly that you came to Australia to engage in unlawful activity and that you did so motivated by greed.
33 As against that, Mr Gullaci emphasised your youth, your plea of guilty and the stage at which that plea was entered and that this was evidence of your remorse. You face a lengthy gaol term and you will be isolated from your family and home, save for telephone calls from your family while you serve your sentence. To date, your only visitors whilst you have been on remand have been your legal representatives and it is unlikely that your family will visit you whilst you are in prison because of their financial circumstances.
34 You are twenty-four years of age. You were twenty-three at the time of your offending. You are a young man. You openly admitted some minor prior criminal offending in Taiwan, matters that you were not obliged to reveal. You did this out of a desire to be open with the Court. The matters that you revealed will have no impact upon your ultimate sentence.
35 You are a Taiwanese national. Your mother and father are hardworking people. You have two brothers, aged twenty-five and twenty respectively. Your younger brother is currently undergoing compulsory military service in Taiwan. You were educated to the equivalent of Year 12. After leaving school, you completed 12 months’ national service and thereafter worked with your father for a period of two years. After this you met and worked for Ahu as a debt collector for 12 months. From the age of nineteen you have lived independently of your parents. You have no children or any romantic attachments back in Taiwan.
36 Whilst in prison, you have undertaken a number of courses and certificates in respect of these were tendered as Exhibit 2 on your plea.
37 Mr Lin, Ms Mahady of Counsel, on your behalf, acting on your instructions, adopted the contents of Mr Chen’s evidence as to the circumstances of your offending. This is quite contrary to the contents of your interview with police in July 2014 which in essence consisted of denials. Ms Mahady submitted that your role was somewhat lesser than that of Chen as it was Chen who received instructions from Ahu and you were to receive a lesser reward for your services in Australia. Ms Mahady informed me that you were paid approximately 30,000 Taiwanese dollars per month for your work for Ahu as a debt collector and that for your services in Australia you were to receive from Ahu between 150,000 and 200,000 Taiwanese dollars, which amounts to approximately six months’ pay.
38 You were twenty years of age at the time of your offending and are now twenty-one years of age. You are a young man. Ms Mahady informed me that prior to meeting Ahu you worked in the vegetable market as a labourer. Like Chen, after meeting Ahu, you worked for him as a debt collector.
39 You come from a low income, hardworking family. You have no prior convictions. Your parents divorced when you were six years of age and from that time you resided with your mother. You are on good terms with your father and his second wife. You have a brother aged twenty and a half-sister from your father’s second marriage who is aged 2 ½ years. Your father is an alcoholic with ongoing health problems. You help your father by assisting your paternal grandmother financially. Money has always been tight for you and your family and so the offer from Ahu may have been very attractive to you.
40 You were educated to the equivalent of Year 10. After leaving school, you worked as a labourer in the vegetable market. You were then conscripted into the army. However, by the time that you were conscripted the time for national service has been reduced to four months only. Whilst in the army you applied to stay in the army because of the financial benefits that flow to members of the Taiwanese military service. You were not accepted because of your level of education. It was put on your behalf that unlike Chen you paid for your own ticket to come to Australia. I was told you were not a drug user.
41 Since being arrested and remanded in custody, you have undertaken a number of courses (see Exhibit 1). You work five days a week in horticulture within the prison. Whilst housed at the Melbourne Reception Centre, you have been held with other Mandarin-speaking prisoners so your English has not improved to the same extent as Chen and this may have a consequence of making your time in prison more isolating than it might otherwise have been should you have become more fluent in English. Like Chen, you have phone contact with your family in Taiwan.
42 You suffer from gastric reflux and are treated with Pantoprazole 20 milligrams.
43 Like your co-offender Chen, you pleaded guilty at an early stage. You are young. You will be isolated in prison. A good many of the best years of your life will be spent in an Australian prison.
44 Chen and Lin, you came to Australia to commit a criminal offence. You were each motivated by greed. General deterrence must be the primary sentencing consideration when arriving at an appropriate sentence in each of your cases. The amount of methamphetamine trafficked by you is approximately 120 times the commercial quantity for that drug and its value if sold in kilogram lots is between 23 and 25 million dollars. On the evidence before me I can discern no material difference in your roles and I do not regard the identification of your precise roles as essential to the exercise of my sentencing discretion. Your offending is a serious example of trafficking in a commercial quantity of a controlled drug.
45 You are both young men. You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow from such a plea, being that it is evidence of your remorse and that it facilitates the course of justice. You will be isolated from your home and family while in prison and this will make your time in custody burdensome although in your case I can give little weight to that consideration. I am hopeful for your prospects of rehabilitation because of your youth. Would you both please stand.
46 By these sentences I must denounce your conduct. I must punish you and deter you and others from committing crimes of a similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows.
47 Li Ping Chen, I sentence you to 12 years' imprisonment and I fix a period of eight years’ imprisonment before you will become eligible for parole.
48 Your sentence is to commence this day.
49 I declare that you have spent 552 days by way of pre-sentence detention. 562.
50 MS FOX: Your Honour, I have 451.
51 HIS HONOUR: 451 not including today.
52 MS FOX: Not including today.
53 HIS HONOUR: I declare that you have spent 451 days by of pre-sentence detention not including today.
54 I declare pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to 15 years' imprisonment with a non-parole period of 12 years' imprisonment.
55 Shu Yi Lin, I sentence you to 12 years' imprisonment. I fix a period of eight years' imprisonment before you will become eligible for parole.
56 Your sentence is to commence this day.
57 I declare that you have spent 551 days by way of pre-sentence detention.
58 I declare pursuant to s6AAA of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to 15 years' imprisonment with a non-parole period of 12 years' imprisonment.
59 HIS HONOUR: Can we please check that presentence detention?
60 MS FOX: Yes, Your Honour. I just noticed in the Crown opening, paragraph 61, the presentence detention at that point was 441 days, and I believe that was agreed on the plea.
61 HIS HONOUR: Correct.
62 MS FOX: That was up to and including the date of the plea hearing on 12 October.
63 HIS HONOUR: Correct.
64 MS FOX: So adding 10 days and not including today I get 451 days for both.
65 HIS HONOUR: Yes. Very well. Fine. Then that’s what I declare.
66 MS FOX: As Your Honour pleases.
67 HIS HONOUR: Are there any other matters that need to be attended to?
68 MS FOX: No, Your Honour.
69 MR GULLACI: No, Your Honour.
70 HIS HONOUR: Very well. I would like to thank counsel for their assistance in this matter. Would you remove the prisoners, please. Thanks, Mr Interpreter.
71 INTERPRETER: Thank you, Your Honour.
72 HIS HONOUR: And if you would give that document to my associate. Would it assist counsel if I send to them copies of those sentencing remarks?
73 MR GULLACI: Yes. Thank you.
74 HIS HONOUR: Yes. Then I will have that done.
75 MR GULLACI: Thank you, Your Honour.
76 HIS HONOUR: I will stand down till 10.30.
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