Director of Public Prosecutions v Chen

[2018] VCC 2170

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01691

THE QUEEN

v

TAO CHEN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2018
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Chen
MEDIUM NEUTRAL CITATION:	[2018] VCC 2170

REASONS FOR SENTENCE
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Subject: Attempt to import a commercial quantity of a border controlled precursors, Traffick in a drug of dependence – methylamphetamine, Possession of a prohibited weapon.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms O Go	CDPP
For the Accused	Mr S Norton	Stary, Norton Halphen

HER HONOUR:

1Tao Chen, you have pleaded guilty to the Commonwealth offence of attempting to import a commercial quantity of a border controlled precursor, and the state offence of trafficking in drug of dependence - namely, methamphetamine.  Additionally, you have agreed to have dealt with by me and pleaded guilty to a related summary offence - one charge of possession of a prohibited weapon, namely, a knuckle duster.

2The maximum penalty for the Commonwealth offence is 25 years, the State offence is 15 years, and the related summary offence is two years' imprisonment.

3In relation to Charge 1, the court must sentence you in accordance with Part 1B of the Commonwealth Crimes Act.  In addition to any other relevant factors, the court must specifically take into account the matters listed in s.16A(2), and impose a sentence that is of a severity appropriate in the all the circumstances.

4The nature of the offence and the circumstances in which it was committed are set out in detail in the prosecution opening for plea.

5The Clandestine Lab Squad had been conducting an investigation into the manufacturing and trafficking of large commercial quantities of methylamphetamine, and identified a syndicate which involved all facets of the trafficking process.  You were identified as an importer of a key precursor chemical, namely ephedrine, utilised in the manufacture of methylamphetamine.

6As part of the investigation, on 22 November last year, your phone along with that of another individual who was involved in the syndicate was intercepted.  Various calls between you and Xia He, or MB1, were translated.  This latter number was Chinese-based. 

7On 23 November 2017, you received a phone call from MB1.  He told you that he had sent photos of the shipping records to you.  You were told the parcel had been delivered and expected to arrive on 26 November.  An air cargo assignment with the relevant shipping information did arrive as scheduled that day, imported into Australia from China.

8The consignment was addressed to Nathan Tang and also had your home address in Box Hill North.  The goods were declared as curtains.  Over the next few days, you discussed with MB1 the time it would take for the parcel to be cleared through Customs, and you both indicated that you would check on its progress.  Later that day, you discovered it was being withheld.

9On 30 November 2017, the parcel was examined by Australian Border Force officials and found to contain ten roller blinds.  The end cap of the one of the blinds was removed and contained a white crystalline substance.  A sample was removed for presumptive testing and returned a positive result for ephedrine.

10On 4 December, the consignment was transferred to Melbourne, where upon its arrival it was deconstructed by ABF officers.  The ephedrine was removed from the blinds and ten replacement blinds were substituted into the original consignment package.  The next day, investigators attempted a delivery of the substituted consignment to your address in Box Hill.

11Though you were observed in the vicinity of your address at the relevant time, no-one answered the door when the delivery was attempted.  An Australia Post collection card was left in your letter box, advising the resident to collect the consignment from the Box Hill North post office. 

12On 8 December 2017, you spoke with MB1 who informed you the parcel had gone through Customs.  You then arranged for a male associate of yours named Feng to attend the post office in your car and to collect the parcel.  He produced the collection card and a Victorian driver's license in the name of Nathan Tang.  However, he did not meet the description of the person whose photograph was on the license.

13After the package was collected, you contacted MB1 and informed him there was nothing inside the blind canisters.  You discussed this with him on a number of occasions during the day.  MB1 expressed disbelief and indicated he thought you would have been arrested if the contents had been discovered.

14You both attempted to figure out why the precursor was not inside the consignment.  MB1 maintained there was nothing wrong with his side of the operation, and that you would have thought that the police would have grabbed Feng when he collected the parcel.  You warned him that sometimes authorities wait a number of months so as to be able to charge of a number of occasions.

15MB1 advised you to use two different cars and of the risks to "the kid", or Feng.  You told MB1 it was obvious that someone had unpacked and repacked the parcel.  He continued to question you as to why police had not arrested anyone if the package was opened in Australia.  You continued to maintain it was not your kids who had intervened, and that you kept a close eye on them.  You also discussed future deliveries and relevant details.

16Between 15 December 2017 and the end of January 2018, you had discussions with MB1 indicating you would video yourself opening future packages so that he could watch you opening it, the cooking process for methamphetamine and the time required, the need for raw materials, and the money that could be made.

17As time progressed, you were under increased pressure to speed the process up and send money back to China.  You eventually advised that you had made a number of money transfers for different amounts in Chinese currency, the total amount of approximately Australian $35,000.

18During this period, you also communicated with two individuals seeking payment for unpaid drug debts and referred to the need to report back to China, and had discussions with another prospective purchaser about your product.

19On 8 January 2018, a deconstruction of the consignment was conducted and revealed a total weight of ephedrine mix of 9.84 kilos.  The total weight of pure ephedrine was 4.756 kilograms.  A commercial quantity of ephedrine is 1.2 kilograms, so you had approximately four times the commercial quantity.

20On 14 February 2018, investigators executed search warrants of your apartment and your car.  Feng was at the apartment.  The apartment had been rented by you in January 2018 and appeared to be utilised for the purpose of storing and trafficking drugs with no indication that a person was actually living there.

21During a search of your premises and car, a number of items were located including approximately 40 grams of a crystalline substance containing methamphetamine, a 600 ml bottle with liquid methylamphetamine, and a brass knuckle duster.

22The pure weight of the methylamphetamine found in your possession and possessed for the purposes of trafficking was just under the commercial quantity of 49.99 grams.  A commercial quantity is 50 grams.

23You were interviewed at the Box Hill police station and denied any involvement in trafficking a drug of dependence and importing a border controlled precursor.

24As to the nature and circumstances of the offence, s.16A(2A), you clearly played an active role in managing the importation of the precursor.  You liaised directly and regularly, as revealed in the telephone intercept material, with MB1 who was in China.  You were the link in Melbourne.  You enlisted others or "the kid" to collect the package.  You were entrusted with receipt of and opening of the package and sending or undertaking to send funds to China.

25As noted above, the amount of pure ephedrine was 4.76 kilograms.  You had almost four times the commercial quantity.

26You had an expectation of the amount of precursor you would receive, as evidenced by material in the telephone intercepts regarding the amount in the package as compared to other times.

27As to the value of the precursor, I was informed by counsel for the prosecution that if sold in kilogram amounts, 4.76 kilograms would have realised between $123,760 and $238,000.  If the ephedrine had been converted to methylamphetamine, the wholesale value and street value would have been significantly more, the latter being between $1.4 million and $1.9 million dollars.

28It was not disputed your offending was motivated by financial reward.  However, it was submitted that this related to both gambling and drug debts, and the cost or funding of your own drug dependence.  It was apparent from some of the material in the depositions that you were in financial difficulties, with an intercept recording a conversation between you and your father in China, and him expressing concern re: your gambling and debts that you owed him.  I accept that your drug use or habit was connected to this offending and provides some explanation for your behaviour, though it does not excuse it.

29I received a report from Patrick Newton, clinical and forensic psychologist, dated 12 November 2018.  I also received some references from your ex-wife and your aunt.  I take all of this material into account.  Your aunt remains supportive you and has visited you in custody and attended court. 

30You were aged 31.  You were born in Fuqing in southern China, where your parents and sister still live.  Your childhood was difficult and you were subjected to severe punishment at the hands of your father, involving physical abuse. 
You had a troubled adolescence and descended into drug abuse at the age of 16.  Your education was compromised as a result.

31Your parents sent you to Australia in 2005 in an endeavour for you to start afresh.  You undertook language courses and ultimately completed a VCAL course for Year 12.  You live with your aunt and remained drug-free for a period of about three years after arriving in Australia.  You have worked primarily in the construction industry when you have been employed.

32You were married in 2010, though you separated from your wife in 2015. 
I understand that you and your wife were both avid gamblers, and thus suffered consequential financial problems and difficulties.  You have two children, a daughter aged six and a son aged three.  You have not seen your children since your arrest.

33I was informed that your drug use recommenced around the time of your marriage and that it was intricately connected to your gambling, with each behaviour reinforcing and exacerbating the other.  You used methamphetamine, cocaine, ketamine and other drugs that were available.  As your drug use increased, so did your association with criminals and the drug culture.  These connections ultimately led to your offending.

34I take into account that your drug use was connected to your offending, and reduces to a degree your moral culpability for the offending.

35In respect of your drug history, Mr Newton notes that no aspect of your life has escaped the corrosive impacts of your drug use.  He is of the view that you have a substance use disorder of moderate to severe intensity, but that it is currently in remission in a controlled environment or in custody.

36Additionally, Mr Newton is of the view that you meet the criteria for a gambling disorder.  Both the drug and gambling issues, he notes, constitute potent criminogenic risk factors in your case.  As to your level of psychological functioning, you have heightened anxiety, and Mr Newton is of the opinion you suffer from an adjustment disorder with mixed anxiety and depressed mood.

37You feel your situation is now hopeless and the future replete with challenges and troubles.  Your mood is exacerbated by the realisation that you are unlikely to see your children as a consequence of your own conduct or offending. 
You have concerns for your children's future, the result of these court proceedings, and the prospect of deportation.

38Your counsel conceded that given the sentence I am likely to impose, your visa will be cancelled.  You are a permanent resident of Australia but not a citizen, and are thus likely to face deportation at the conclusion of your sentence. 
As a consequence, your custody is likely to be more burdensome.

39As outlined in the report of Mr Newton at paragraph 36, you are desperately scared of the potential that you might be deported.  This fear relates to you never seeing your children again, potentially being prosecuted in China for death penalty offences, and the fear of reprisals from those to whom you still owe money in China.

40I accept that you have unique circumstances and that the combination of your problems make the prospect of deportation more distressing.  You have established yourself in Australia with work and children.  Your probable deportation means you have lost the opportunities that you had in this country over the last 13 years.

41I also accept the custodial environment will be more difficult for you given the language barriers and your level of isolation.  You have limited contact with family members here and no contact with your children or other family members in China.

42You have no prior convictions or matters outstanding.  I accept that you are previously of good character, though the serious nature of this offending limits the weight that can be attributed to this factor.

43I take into account your plea of guilty.  You have demonstrated a willingness to facilitate the course of justice.  You offered to plea at the earliest possible stage in the proceedings, and any delay related to the prosecution encountering difficulties with translation of some of the material.

44Your plea of guilty has an objective utilitarian value, and saves the community the expense of a contested trial.  Any trial was likely to be lengthy, given the language or translation issues.

45I accept that your plea is indicative of remorse.  In a letter written by you, you acknowledged the impact of drugs on the community and the potential harm and damage that can be caused.  You accept the time you have had in custody has enabled you to reflect on your offending and the consequence for others.

46The prosecution submitted that your rehabilitation prospects were guarded given the amount of drugs involved in this offending.  I note that you have never had any formal or professional treatment in respect of your gambling addiction or drug issues.  You have, since you have been in custody, been drug-free and participated in a number of courses, obtaining relevant certificates regarding drug and alcohol use.

47Given your longstanding issues, you will require significant rehabilitative input to address your drug and gambling problems.  As noted by Mr Newton, the nature of your problems and the intensity of their impact on your life militate against an unbridled optimism concerning your recovery.

48However, you have had enforced abstinence in custody and gained insight into your drug use and offending.  These are positive signs, though you will require support and supervision to ensure no relapse.  As long as you remain committed to abstinence, both whilst in custody and on your release to treatment, I regard your prospects as fair.

49Linked to this assessment of your rehabilitation prospects, I take into account specific deterrence, given the nature of your offending.  Both parties recognise general deterrence as an important sentencing consideration for offending of this nature.  The sentence imposed must be of a severity sufficient to deter others from engaging in illicit drug and related criminal activity, particularly on this scale.

50It must signal to would-be drug traffickers or those involved in the importation of drugs or precursor that the potential financial rewards of engaging in such activities are neutralised by the risk of severe punishment.  This is largely because of the difficulty in detecting this kind of offending across borders in the world, and the great social consequences that flow from the movement of such substances into Australia, and their distribution within this country.

51Just punishment is also an important sentencing consideration, given the seriousness of drug offending at any level, but particularly relating to importations of a commercial quantity.  I accept the submissions of the prosecutor in respect of consistency in sentencing - see paragraphs 37 to 44 of the prosecution submissions.

52Your counsel conceded that the only appropriate sentence was a term of imprisonment.  Taking all relevant matters into account as set out in these reasons, I propose to sentence you as follows.  If you could please stand, Mr Chen?

53In respect of Charge 1, the Commonwealth offence, attempting to import a precursor, you are convicted and sentenced to a term of imprisonment of six years and three months.

54In respect of the State charge of trafficking, Charge 2, you are convicted and sentenced to a term of imprisonment of 12 months.

55In respect of the related summary offence, you are convicted and discharged.

56That makes a State sentence of 12 months.  The Commonwealth sentence is to commence nine months after the expiration of the State sentence, which gives a global sentence of six years and six months.

57And I set a non-parole period of four years and three months.

58Pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a term of imprisonment of eight years and six months with a minimum term of six years if you had not pleaded guilty to this matter.  And what is the pre-sentence detention, please?

59COUNSEL:  Three hundred and seven.

60HER HONOUR:  Three hundred and seven?  I declare 307 days pre-sentence detention.  Are there any other orders I need to make?

61MS GO:  Yes, Your Honour.  The forfeiture and disposal orders.

62HER HONOUR:  All right.  I have got those.  I signed them last time?  I have already signed them, I think.  I signed them last time.  Yes, I have already signed them.  Thank you. 

63MR NORTON:  Your Honour, could I just clarify something?

64HER HONOUR:  Yes. 

65MR NORTON:  Your Honour has imposed on the Commonwealth sentence six years, three months.

66HER HONOUR:  Yes. 

67MR NORTON:  And on the State count, 12 months.

68HER HONOUR:  Yes. 

69MR NORTON:  And your intention as I understand it is to cumulate six months.

70HER HONOUR:  No.  Have I got that wrong?  Have I said that wrong?

71MR NORTON:  No, I have just divined that, Your Honour.  That was while ‑ ‑ ‑ 

72HER HONOUR:  Cumulate three months.

73MR NORTON:  Cumulate three months.  So the total effective ‑ ‑ ‑ 

74HER HONOUR:  Yes.  So what it means is that the sentence - say the sentence was today with no PSD.  You would get 12 months starting today for your State sentence, then nine months before that straight sentence expires, the Commonwealth sentence commences.

75MR NORTON:  Thank you, Your Honour, because I think Your Honour said nine months after the expiration of the State sentence.  But what ‑ ‑ ‑ 

76HER HONOUR:  I meant before.  Sorry.

77MR NORTON:  Before.

78HER HONOUR:  Yes, sorry.

79MR NORTON:  No, no, not at all.

80HER HONOUR:  Nine months before the expiration of the State sentence.  That is correct.  .

81MR NORTON:  And so it's a total effective of six years, six months.

82HER HONOUR:  That is right. 

83MR NORTON:  And a non-parole period of four years.

84HER HONOUR:  Four years.  Great. 

85MR NORTON:  Thank you. 

86HER HONOUR:  Thank you.  Can we do the next matter?

87MS GO:  Sorry, Your Honour, just an explanation to the offender about the parole period, pursuant to s.16F.  Just that he'll be subject to conditions that could be amended or revoked, and also what the consequences are if the offender doesn't abide by those conditions.

88HER HONOUR:  All right.  Presuming he gets parole.  Now, Mr Chen, presuming that parole becomes an issue for you - you have heard that I set a non-parole period of four years and three months.  I am required to inform you, pursuant to the Commonwealth legislation, that if you breach the parole order or any of the conditions thereby imposed, that you may be required to come back before me.  Or that the whole of - you will be required to serve the whole of that sentence.  Thank you. 

89MR NORTON:  As Your Honour pleases.

90MS GO:  Thank you, Your Honour. 

91HER HONOUR:  Thank you. 

92MR NORTON:  May I be excused, Your Honour?

93HER HONOUR:  Yes, sure.

94MR NORTON:  Thank you. 

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