Director of Public Prosecutions v Chin
[2023] VCC 2402
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-02152
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YONG YU CHIN |
---
JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 October 2023 and 22 November 2023 |
DATE OF SENTENCE: | 15 December 2023 |
CASE MAY BE CITED AS: | DPP v Chin |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2402 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Traffick in drug of dependence (large commercial quantity) – Failure to comply with order to provide assistance or information – Relevant and long criminal history - History of drug abuse – Motivation as to offending greater than simply earning income to support drug addiction - Role as operator of drug syndicate – Organised and obtained drugs for shipment – Role superior to co-offenders – Escalation in offending - Serious drug offender declaration - No pronounced role for parity in sentencing – Expert opinion – Stimulant use disorder – Post traumatic stress disorder following alleged assault sustained whilst being arrested – Extra-curial punishment as result of injuries sustained
Cases Cited: Osman v The Queen [2021] VSCA 176; Worboyes v The Queen [2021] VSCA 169
Sentence:Convicted and sentenced to Total Effective Sentence of 11 years and 6 months’ imprisonment with non-parole period of 7 years and 7 months’ imprisonment – Pre-sentence detention of 1332 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary order Disposal
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Solicitor for Public Prosecutions |
For the Accused | Mr C. Nikakis | Haines & Polites |
HER HONOUR:
1Yong Yu Chin, you have pleaded guilty to one charge of trafficking in a drug of dependence in a large commercial quantity and one charge of failing to comply with an order to provide information or assistance.
2The maximum penalty for trafficking in a large commercial quantity of a drug of dependence is life imprisonment. The maximum penalty for failing to comply with an order to provide information or assistance is five years' imprisonment.
3In sentencing you, I must have regard to the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
4Further, I must have regard to the fact that trafficking in a large commercial quantity of a drug of dependence is a category 1 offence and the standard sentence for which I must also have regard is 16 years' imprisonment.
5I sentence you on the following facts, which are contained in the amended summary of prosecution opening, dated 21 July 2023, which is an agreed summary of the facts in this case.
6I was told that you were 39 years old at the time of the offending and living at and visiting a property in Colorado Crescent, Rowville (which I might refer to from time to time as the 'the Rowville address'). However, you spent the majority of your time living with your partner, Christy-Lee Harloff, in Murphy Street, Deer Park.
7Your co-offenders, each of whom has been sentenced by me, are:
(a)Michael Von Czapiewski (to whom I will refer from time to time by his surname), who was 34 at the time of the offending. He was living in Clifton Grove, Carrum Downs, and at times in Milroy Crescent, Seaford, with his on-and-off-again partner and co-offender, Nicole Finlayson.
(b)Finlayson had been living at her housing-commission home in Milroy Crescent, Seaford, for about eight years as at the time of the offending and had been living with Von Czapiewski at his Frankston address for a period of time. However, she had moved back to the Seaford address from January 2020 after they had split up. A witness in this matter,
Sam Matthews, also lived at the Seaford address for a while.(c)A further co-offender, Benjamin Balic, lived at the Rowville address with your son, Zachary Chin, and another person, Bonnie Lowry.
8In summary, the prosecution case is that you operated a drug-trafficking syndicate whereby you arranged for large commercial quantities of
1,4-butanediol to be exported in barrels from a contact in China, whereafter they were to be subsequently trafficked by you and your three co-accused.9Von Czapiewski, Finlayson and Balic were alleged by the Crown to have been complicit in your offending by assisting you, including storing and trafficking the 1,4-butanediol. I shall refer to their roles in more detail in due course.
10The threshold for a trafficable quantity of 1,4-butanediol is 50 grams, the commercial threshold is 2 kilograms and the threshold for a large commercial threshold is 20 kilograms.
11You trafficked the following quantities:
(a)6.1 kilograms found in bottles at the Rowville address.
(b)approximately 26 kilograms located in a barrel in the boot of a vehicle at Finlayson's Seaford address (and it relates to a consignment number ending '605').
(c)approximately 26 kilograms found in a barrel at TNT Hallam, which was intercepted by police before being delivered to Finlayson's Seaford address (relating to that consignment was consignment note ending with the numbers '245').
(d)approximately 26 kilograms found in a barrel at TNT Hallam, which was intercepted by police before being delivered to Finlayson's Seaford address (and relates to consignment note number ending '179').
12In total, you trafficked approximately 84 kilograms of 1,4-butanediol, more than four times the threshold for a large commercial quantity.
13In relation to the two barrels intercepted by police at TNT Hallam, the prosecution case is that you were in constructive possession of the barrels, in that you had ordered them and were awaiting delivery of them.
14Von Czapiewski trafficked a total of about 26.5 kilograms, comprising the 26 kilograms found in a barrel in the boot of the vehicle at Finlayson's Seaford address, one bottle containing 529 grams in the master bedroom of the Seaford address and two bottles containing approximately 5 milligrams, found in the lounge room of the Seaford address.
15Von Czapiewski assisted you in trafficking the 1,4-butanediol. This included helping you in setting up the 'Squirrel Monkey' business, accepting delivery of some of the drugs at the Seaford address, storing drugs at that address and providing drugs to you on request. However, the prosecution case against Von Czapiewski was limited to the barrel of 1,4-butanediol found in the boot of the car at the Seaford address and the bottles inside the address, giving rise to a total of about 26.5 kilograms. Von Czapiewski assisted you in trafficking – I am sorry, just one moment. Sorry, that was just a repeat, a typographical error. There is a repeat of what I have just said, so I am not going to read that aloud. In relation to Von Czapiewski, for the purpose of the plea hearing against him, the charge was limited to a commercial quantity notwithstanding that the quantity exceeded the threshold in relation to a large commercial quantity.
16In relation to the registration of the business, 'Squirrel Monkey', Von Czapiewski asked Sam Matthews, a witness in this matter, to create an Australian Business Number online for you, and he did so on a computer at the Seaford property. Von Czapiewski told him to use the business name, Squirrel Monkey, and Sam Matthews was registered as the sole or individual trader on the Australian Business Registry in relation to that particular entity. On 3 March 2020, this business name was registered on the ASIC website. The business name was used by you in the exportation of the 1,4-butanediol from China.
17The address for service of documents for the business was listed as the Seaford address. The contact phone numbers were those known to be used by you.
18On 15 April 2020, police executed search warrants at your Rowville address and on a 2001 Mercedes Benz, which was apparently linked to you.
19Police found and seized items, including the following:
(a)five distinctive white 1-litre plastic bottles containing 1,4-butanediol, located in the backyard inside a subwoofer wrapped in towels.
(b)one distinctive white 1-litre plastic bottle and one Mountain Dew drink bottle, both containing 1,4-butanediol. These were found in the lounge room inside the top of a decorative wine rack.
(c)one small plastic bottle containing an amount of 1,4-butanediol, which was found in the lounge room behind the television.
20The total amount of 1,4-butanediol was 6.1 kilograms.
21I was told that you would have Balic in mind and sell the 1,4-butanediol at the address. In exchange, Balic was permitted to live at the address rent-free.
22Zachary Chin told the police that a few days before the execution of the search warrants at the Rowville address, he saw you struggling to affix screws to the sound-speaker box at the premises. This was in reference to the subwoofer to which I have previously referred.
23On 22 April 2020, police attended the Empire apartment building, Room 5707, in CBD Melbourne. You were found in the apartment and arrested. Mr Nikakis, who appeared for you at the plea hearing, said you had rented the apartment through Airbnb.
24Police executed search warrants at the property.
25They found and seized a number of exhibits, including a ZTE mobile phone without passcode protection.
26On 23 April 2020, you were interviewed by police and made a 'no-comment' record of interview. Police requested that you provide passwords for your mobile phones in accordance with a court order obtained by police on 22 April 2020. However, you refused to provide the details. This gives rise to Charge 2, failing to comply with an order to provide information or assistance.
27Police were able to analyse the ZTE mobile phone that did not have passcode protection. They found, in the Messages app, screenshots of messages relating to the importation of 1,4-butanediol into Australia. Screenshots depicted three large barrels, tracking details and several comments.
One comment read, '[b]oss, your order will ship out from China next week. There are three packages, all will send out separately'.28Another comment found on the phone was, '[i]tem still declared as spray cleaner'. A further message said, 'TNT tracking number', listing two tracking numbers, one ending in '245' and the other ending in '206'.
29On 22 April 2020, police further examined screenshots on your mobile phone and were able to determine that one of the barrels with consignment number ending '245' had arrived at the TNT depot in Hallam. The consignment details stated the contact number, which was set out in the prosecution opening and ends in '131'. That number was listed in Zachary's phone as '[d]ad', a reference to you. The phone number was registered by the service provider to Balic.
30On 23 April 2020, police executed search warrants at TNT Hallam. Staff directed police to a consignment with the tracking number ending '245' from your phone. Police seized a barrel and invoice paperwork on top of the barrel. Receiver details were:
Squirrel Money [sic] – reference to[1]
Milroy Crescent Seaford,
[1] Squirrel Monkey
with a contact name of 'Mr Danny Connolly' and the phone number ending '131', to which I have just referred.
31There was a handwritten number on the top of the barrel. That number matched one of the three barrels captured on the screenshot messages from your phone. When opened, the barrel was found to contain 25 large, white plastic bottles containing 1,4-butanediol in plastic bubble-wrap sleeves. These distinctive bottles were identical to those found in the sound speaker at the Rowville address on 15 April 2020.
32The 25 bottles from the barrel contained in excess of 26 kilograms of
1,4-butanediol.33On 27 April 2020, TNT security became aware that a further international consignment, with consignment note ending in the numbers '179', had arrived. Police were contacted. The consignment note contained the same details as the consignment note ending '245', with the same contact number ending in the numbers '131'.
34On 4 May 2020, police executed search warrants at TNT Hallam and seized the barrel relating to consignment ending '179'. The barrel contained 25 large, white plastic bottles containing 1,4-butanediol in plastic bubble-wrap sleeves. These were identical to the other bottles found in the speaker at the Rowville address and to those found relating to consignment ending '245'. Again, the bottles contained in excess of 26 kilograms of 1,4-butanediol.
35On 23 April 2020, police requested TNT to provide information in relation to TNT consignment note ending '378'. Police were provided with information relating to this. The same details as those contained in consignment note ending '245' were found, except the contact number was a number ending in '956' and the stated quantity was said to be '50'. The phone number was linked to you by police.
36TNT records show the consignment was delivered as a '2-piece' consignment and was delivered individually to the Seaford address on 3 and 9 April 2020, with the receiver being recorded as 'Sam'.
37On 28 April 2020, TNT security found information confirming that another international consignment had been delivered to the Seaford address on 27 April 2020 via consignment note ending '605'. The consignment note contained the same details as that ending '245', including the same contact number, namely that ending in '131'.
38Records showed that the consignment was delivered to the Seaford address on 27 April 2020, with the receiver being recorded as 'Sam'.
39On 28 April 2020, police executed search warrants at the Seaford address. Von Czapiewski and Finlayson were present.
40Investigators found the following items in the course of the search. In the master bedroom:
(a)an empty barrel on the floor of the wardrobe. The barrel was identical to that seized at TNT Hallam on 23 April 2020.
(b)a barrel containing 25 bubble-wrap sleeves and paperwork relating to consignment note ending '378'. The barrel was identical to that seized at TNT Hallam on 23 April 2020.
(c)11 pages of invoice paperwork relating to consignment note ending '378' addressed to Squirrel Monkey at 6 Milroy Crescent, Seaford, with a contact number ending '956', a number linked to you.
(d)a large, white plastic bottle half full of 1,4-butanediol. The bottle was identical to those seized from TNT Hallam on 23 April 2020.
41Other items were seized but are not the subject of charges against you.
42In bedroom 2, a record of registration of the business name, Squirrel Monkey, was found.
43In the lounge room, two large, white plastic bottles containing approximately 5 milligrams of 1,4-butanediol were found – again, the bottles were identical to those seized at TNT Hallam on 23 April.
44The two empty barrels found in the master bedroom were included the summary of prosecution opening as providing context to the offending.
45Subsequently, police found a barrel of 25 x 1-litre bottles of 1,4-butanediol in the boot of a car which was parked at the Seaford address. Again, the barrel and contents were identical to the consignment ending '245', seized on 23 April. The barrels in consignment ending '245', '179' and '605' were identical to the two empty barrels found in the master bedroom at the Seaford address (relating to consignment note ending '378').
46The 25 bottles from the barrel seized from the boot of the car at Seaford contained in excess of 26 kilograms of 1,4-butanediol.
47Mr Chin, your offending is most serious and is deserving of a punishment which is just in all the relevant circumstances. Your offending must be firmly denounced.
48You were the operator of a drug-trafficking syndicate, and it was you who arranged for commercial quantities of 1,4-butanediol to be exported from China into Australia. Your role in the offending is far superior to that of any of the co-offenders to which I have referred. The quantity which you trafficked was most significant, being more than four times the threshold for a large commercial quantity of 1,4-butanediol. Your offending was not lacking in sophistication, involving others to register a business name and arranging for storage of the product at premises other than your own, save for the Rowville address, where you sometimes lived. Further, you were given details as to the erroneous description of the contents in an apparent and obvious bid to avoid detection.
49Mr Nikakis, who gave a rather economical plea on your behalf, appeared, at times, to minimise your involvement in this most serious offending, in my view.
50In respect of the offending, I was told that you had a friend who made contact with you to try and organise obtaining 1,4-butanediol from overseas. You were involved in organising and obtaining the drug, and your phone number was the contact for the freight-forwarding companies, such as TNT Express Delivery. I pause, here, to observe that, in fact, details in this regard were registered in other people's names, and there was also the entity of Squirrel Monkey. Notwithstanding that one of the phone numbers was in fact yours, it was registered to another co-offender, as the prosecution opening reveals. Mr Nikakis submitted that your phone number was the point of contact for the freight-forwarding companies, such as TNT Express Delivery – it appears that there were two numbers linked to you, in fact, and, again, the details pointed the consignments to other addresses, not yours. This indicates to me that you were prepared to implicate others, your underlings, and deal with the product from a distance in a bid to disguise your involvement.
51I was told by Mr Nikakis that the payment you received in relation to one of the consignments was 6.1 kilograms, which was found at the Rowville address, and that you were to be paid by selling this on through Balic. He said that you would be paid in a similar way in respect of other consignments.
52I am unable to find what payment you received or expected to receive in respect of this enterprise on the basis of the material before me and in the absence of evidence or sufficient evidence about this. The only evidence that Mr Nikakis pointed to was that this quantity of 6.1 kilograms was found at Rowville, where you lived from time to time.
53Mr Nikakis also appeared to suggest that the quantity found in the boot of the car at the Seaford address was perhaps payment for Von Czapiewski and Finlayson, your underlings. I do not accept that this is the case, and such a suggestion is fanciful in all the relevant circumstances. The fact of the matter is you were the head of a syndicate here, and it beggars belief that you would be paid in a smaller quantity of the drug than your underlings, or that they were free to deal with such large quantities other than in accordance with directions from above. In this regard, Mr Nikakis acknowledged that there was no contact between Von Czapiewski, Finlayson or Matthews on the one hand and anyone other than you on the other hand.
54I accept that there is no evidence as to where the various shipments of drugs were to go once delivered.
55I accept Mr Nikakis' submission that the evidence shows that you had knowledge of how much drug was arriving in the country – of course, you did. You were the one arranging for it to do so, with the help of your overseas contact. I accept that there is no evidence of you paying for the drugs. I am unable to make a finding as to whether you were involved in this enterprise at anyone else's behest, but you are to be sentenced, as I have said, as the head of the syndicate at this end, responsible for trafficking the drug as set out in the prosecution opening, and I sentence you on this basis.
Criminal history
56In sentencing you, I take into account your criminal history, which is a relevant and concerning one.
57Your criminal history is a substantial one and includes four separate instances of drug trafficking.
58On 1 December 1989, you were dealt with for three charges of shop theft, and the matter was dealt with by way of a good-behaviour bond for 12 months.
59On 25 January 1994, you were dealt with for obtain property by deception, two charges of theft, and six charges of unlawful possession. Without conviction, you were placed on a 12-month community correction order and required to perform 150 hours of unpaid community work.
60On 23 August 2000, in this court, you were convicted of aggravated burglary and intentionally causing injury. You were sentenced to 12 months' imprisonment on each count, to be served concurrently with one another and by way of an intensive corrections order.
61On 9 July 2004, you were dealt with for traffic amphetamine, traffic drug of dependence, knowingly deal with proceeds of crime, possess amphetamine, three charges of possess drug of dependence (not named), possess ecstasy, possess ammunition without licence, as well as possess cannabis and cultivate narcotic plant and possess ammunition without a licence. You were fined in relation to the drug possession, cultivation and ammunition charges. However, in relation to the two trafficking charges and knowingly dealing with proceeds of crime, you were sentenced to an aggregate term of six months' imprisonment, but the sentence was partially suspended, requiring you to serve two months, with an operational period of 12 months.
62On 23 September 2004, you were convicted and fined for prohibited person possessing a firearm.
63On 6 October 2009, you were dealt with for two charges of trafficking amphetamine, two charges of using methylamphetamine, a charge of traffic methylamphetamine, as well as possession of drugs, six charges of dealing with property suspected to be proceeds of crime, and driving under the influence of a drug, as well as driving whilst authorisation was suspended. In relation to each of the charges, you were sentenced to an aggregate term of 18 months' imprisonment to be served by way of a drug treatment order which had a number of conditions attached to it, including drug treatment.
64On 14 July 2010, there was a variation of this sentence whereby you were sentenced to 15 days' imprisonment to be served by way of a drug treatment order.
65On 28 April 2011, there was a variation of the sentence to which I have just referred, and you were sentenced to 21 days' imprisonment to be served by way of a drug treatment order.
66On 29 September 2011, there was a further variation in relation to the same charges and the variation of sentence imposed on 28 April 2011. The treatment and supervision and custodial part of the drug treatment order was cancelled, and it was noted that the drug treatment order had been completed.
67On 22 November 2011, you were convicted and sentenced to one month's imprisonment for driving whilst disqualified. The sentence was wholly suspended, with an operational period of six months. You were also fined in relation to using an unregistered car.
68On 15 February 2013, you were dealt with for dishonestly receiving stolen goods, dealing with property suspected to be proceeds of crime, two charges of possess amphetamine, one charge of traffic methylamphetamine, one charge of traffic amphetamine, one charge of trafficking cocaine, one charge of possessing cocaine, one charge of possessing oxycodone – it might be 'oxycodeine' [sic], I will just check that – one charge of possessing cannabis, one charge of possessing ecstasy, one charge of possessing GHB, and one charge of possessing a drug of dependence, being a prescription drug. You were also dealt with for prohibited person being in possession of an unregistered firearm and other weapons-type offences. Further, you were charged with use amphetamine and drive whilst suspended. In relation to all except the last two mentioned offences, you were sentenced to an aggregate term of imprisonment of 36 months and ordered to serve 22 months as a
non-parole period.69You appealed this sentence to this court on 15 August 2013, and the appeal was allowed. You were sentenced to an aggregate term of 30 months' imprisonment with a non-parole period of 16 months.
70On 17 January 2018, you were convicted of drive whilst suspended, possess amphetamine, possess GHB, possess a Schedule 4 poison, possess cocaine, possess methylamphetamine, possess ecstasy, possess a prescription drug of dependence, and dealing with property suspected to be proceeds of crime. You were fined in relation to the first four mentioned offences. In relation to the remaining offences, you were sentenced to an aggregate term of imprisonment of four months.
71On 4 July 2018, you were convicted and fined in relation to possessing methylamphetamine and failing an oral fluid test within three hours of driving.
72On 4 March 2019, you were convicted of committing an indictable offence whilst on bail, possessing methylamphetamine, possessing amphetamine, possessing GHB, dealing with property suspected to be proceeds of crime, and dishonestly receiving stolen goods. You were sentenced to an aggregate term of 39 days' imprisonment, which you had already served, in combination with a 12-month community correction order. One of the conditions of the order was for you to undergo assessment and treatment, including testing, for drug dependency as directed.
73On 25 March 2019, you were convicted of possess methylamphetamine, possess cannabis, and possess a Schedule 4 poison, as well as dishonest retention of stolen goods, possession of prohibited weapon without exemption, and committing an indictable offence whilst on bail. You were sentenced to an aggregate term of 92 days' imprisonment, and this was declared to be a period you had already served.
74On 23 September 2019, you were dealt with for trafficking methylamphetamine and dealing with property suspected to be proceeds of crime, as well as contravening the community corrections order to which I have previously referred. In relation to the new offending and resentencing in respect of the charges which were the subject of the community correction order, you received 80 days' imprisonment with 75 days reckoned as already served.
75All of the matters were dealt with in the Magistrates' Court save as indicated in the course of my summary of your criminal history.
76The offending for which I now sentence you is a marked escalation of your criminal offending, which is of significant concern.
77In sentencing you, I have borne in mind what our Court of Appeal has said about offending such as yours. In Osman v The Queen [2021] VSCA 176 at paragraph [105], the court said:
It is necessary ... to arrive at a total effective sentence that gives effect to the relevant sentencing principles of general deterrence, denunciation and punishment for serious drug trafficking, and recognises both the applicant's elevated role in the trafficking enterprise vis-à-vis the lesser roles of his co-offenders, as well as the factors mitigating the applicant's criminality.
78In sentencing you, as I have said, I must have regard to the standard sentence for trafficking in a large commercial quantity of a prohibited drug, which is 16 years. This is a legislative guidepost and does not affect my instinctive-synthesis approach to sentencing. Section 5A of the Sentencing Act 1991 provides that the period specified as the standard sentence is the sentence for an offence that, taking into an account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
79Sub-section (3) provides that objective factors affecting the relative seriousness of an offence are to be determined:
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending.
80Further, s89DI of the Sentencing Act requires me to declare you are a serious drug offender upon conviction of Charge 1. However, your prior convictions for drug offences do not qualify you as being subject to the serious offender provisions set out in Part 2A of the Sentencing Act.
Stage of pleading guilty and remorse
81In sentencing you, I take into account the stage at which you pleaded guilty to these offences, which was in August of last year, following a number of directions hearings in this court and after you conducted a contested committal hearing. I allow for a fairly substantial discount in the sentence you would otherwise receive in all the circumstances. However, it would have been a good deal more substantial had you entered pleas of guilty at an earlier stage. Ultimately, you have facilitated justice by saving the witnesses the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial.
82I am unable to find anything in the way of remorse, and it was not submitted that you had any, or any insight in relation to the seriousness of your offending.
Worboyes
83I am prepared to give you the benefit of an allowance pursuant to the case of Worboyes,[2] as you indicated a preparedness to plead guilty at a time where the court was still experiencing a backlog of trials due to the pandemic, and your preparedness to plead guilty has contributed to a reduction in that backlog.
Delay
[2]Worboyes v The Queen [2021] VSCA 169.
84There has been a good deal of delay in this matter, which sees you having been in remand for a most significant period. During that period, you will have endured the various restrictions due to COVID-19, which would have made time in custody harder than otherwise. Further, it may well be the case that restrictions will continue in some shape or form in the future, which is also relevant to hardship whilst in prison. Also, you have had the anxiety of these matters hanging over your head.
85I take into account your background, which was not really set out by Mr Nikakis, who simply referred me to the history taken by Pamela Matthews, forensic psychologist.
86You were born in Malaysia, and both your parents are now deceased. You have two older sisters and an older brother. Your father was employed as a financial supervisor when you were a child, and your mother was a shipping company secretary. As a young child, you were largely cared for by your grandparents. You were not exposed to family violence or other forms of abuse, including substance abuse. You were not a healthy child, spending time in hospital for asthma and other respiratory problems.
87All of your siblings live overseas. You lost contact with your older brother over 10 years ago.
88You began your education in Malaysia. However, your primary school years were interrupted by health problems. When you were 15, your parents gave you a choice of further education in Australia or England. You chose Australia, as it was closer to home. Whilst at school in Australia, you lived with an aunt and uncle. You attended two different secondary schools, then Prahran TAFE, followed by Swinburne University where you obtained a Diploma in Accounting. You did not have any learning, social or behavioural problems, but told Ms Matthews that you eventually fell in with the wrong crowd.
89After finishing school, you moved out of your aunt and uncle's home and began working with a bookkeeping company, and you found a place to live. You did not enjoy bookkeeping or accounting but became interested in computers and found work selling these, becoming a sales manager within four years. You then moved into selling commercial lighting and did this for 13 years. You reported that your career ended when your business partner stole your 'share', which appears to be a reference to a share in the business.
90You have had several relationships, the first commencing when you were 17, which lasted for seven and a half years.
91Whilst working in computer sales, you were in a relationship where your partner was a heroin user, unbeknownst to you. She became pregnant, but three months after this she overdosed. She began seeing a doctor in relation to her drug issues but could not remain clean. The Department of Health and Human Services wished to place your son with his maternal grandmother, but you chose to become a single father.
92When working in lighting sales, you met your next partner, and you had a daughter with this person. This partner helped you care for your son, Zachary. This partner began to smoke cannabis whilst pregnant with your daughter, leaving you a year after her birth.
93In 2010, you met Christy, who was also a drug user. You remained in a relationship with her until your arrest.
94Your son, Zachary, is now 24 and is in a relationship. He is a qualified electrician. You had some contact with Zachary whilst on remand, after three years of no contact. You have weekly video calls with your daughter, Your siblings have told you they will not financially support you through your current legal problems. Your oldest sister has stopped talking to you. However, your younger sister appears to speak to you every few weeks.
95You made friends with a fellow prisoner two years ago and have remained friends notwithstanding that the other prisoner has now been released. You continue your friendship over video calls and speak about football and fishing.
96In terms of your substance use, you began using cocaine, MDMA and amphetamine recreationally at around the age of 28 years, on weekends. Toward the end of your relationship with Carly, you used cocaine daily. When this relationship broke down, you tried to cease your cocaine use by going overseas for three months.
97In 2009, you were sentenced in the Drug Court as previously described. However, you completed the sentence before you completed your treatment. During this period, you saw your daughter Jade every weekend, and your mother came from Malaysia to help care for Zachary.
98You met Christy in 2010, and you tried to abstain from drugs for a period of four years. However, you kept relapsing, with you and Christy using methylamphetamine together. By 2012, you were using approximately 7 grams a day, plus cocaine. You spent time in custody, and you were then transferred to the Christmas Island detention centre. You were there when the riots took place, and you told Ms Matthews you advocated for other detainees such that healthy food was added to the diet and phone calls became available.
99Whilst in custody and detention, Zachary was cared for by your mother and Christy. He attended boarding school as well. On your release from detention, you returned to Malaysia for 10 or 11 months and worked with your brother-in-law and brother. Two weeks after your return to Australia, your mother died. You returned to Malaysia for her funeral.
100When you returned to Australia, you became involved in drugs again, and in 2020 you were arrested in these matters. Your father died not long after you were remanded for these matters, and you were unable to return for your father's funeral.
101You have never used 1,4-butanediol.
102You reported to Ms Matthews that you had been generally in good physical and mental health as an adult. However, when you were arrested for the offences before me, you reported being badly beaten by police, and you feared for your life. You made a police statement in relation to this matter on 28 February this year after being invited to by Police Professional Standards. They were investigating police officers involved in your arrest after a complaint from IBAC.
103You said that the police tried to break your ankle and that they put a towel over your head and beat you. You said you passed out three or four times, and that they kept calling you names. There are a number of other paragraphs to the statement that you have given to the police, and I have read these. It was provided as part of an investigation into the behaviour of these police officers, as I have said. However, I understand that in relation to the allegations you made, the police officers were not charged although they were investigated by Professional Standards. I asked Mr Nikakis for further material in relation to this particular incident at the plea hearing. However, he said that he had not been able to obtain any. You interjected to say that photos were taken of your injuries. Unfortunately, despite having had a great deal of time to do so, Mr Nikakis had not subpoenaed any medical material or photographs, which meant that the matter had to be further adjourned.
104I now have material which supports your account that you did receive injuries in the course of your arrest, including facial injuries and abdominal injuries including a cracked rib, and that Professional Standards did indeed have photos of your facial injuries which were taken after you were arrested.
105Therefore, I allow for the fact that you have suffered extra-curial punishment in relation to this matter and I make a further allowance in your favour for your preparedness to co-operate in the investigation, which was a rather brave thing to do in all the circumstances, in my view.
106I express concern that you received these injuries, said by police officers, or some of them who were investigated, to have been sustained in the course of a 'dynamic arrest' where the accounts given by two of the police officers involved were found to be vague and inconsistent at times, according to an experienced Professional Standards Officer.
107I intend to have my concerns about your ongoing welfare communicated to the relevant authority, and it is to be expected that they will ensure you are safe whilst you are under their supervision.
108Ms Matthews gave a description of the difficulties you had been trying to cope with since this alleged assault and said that you met the DSM-5 TR diagnostic criteria for post-traumatic stress disorder. Ms Matthews said that due to the severity of your symptoms, you were unlikely to recover soon and would require persistent psychological and pharmacological support to manage any time that you might spend in custody.
109Ms Matthews also diagnosed you as suffering from stimulant drug use disorder. However, she found that you did not suffer from any other mental health condition, and that your offending was solely related to your persistent problems with illicit substance misuse.
110It seems to me that the scale upon which you were operating in relation to the present offences, and the fact that you did not take 1,4-butanediol yourself, reflects a motivation greater than simply earning income to support your drug addictions. However, I do accept that you have ongoing issues in relation to drug addiction which you have been unable to successfully address in the long term.
111I allow that time in gaol has been and will be harder for you because of your injuries from the alleged assault; your isolation, notwithstanding you have some contact via the phone and the like; your mental health issues arising from the alleged assault; and your anxiety that you might well be deported at the conclusion of your sentence in circumstances where you have significant ties to Australia.
112Since being at Ravenhall, you have completed a number of courses and you have continued to undertake tasks to occupy your time. I received a number of certificates in relation to the various courses you have completed. You are a peer support helper within the prison, which means you help new prisoners to orient themselves and settle into prison life. I was told that you helped prisoners with family visits, difficult courses, discourse between prisoners and authorities, future work opportunities and to lend an ear to listen to any issues that other prisoners might have.
113As I say, I have taken into account the various courses that you have completed whilst on remand.
114In sentencing you, I have regard to current sentencing practice. However, I also factor in that this is but one, and not a controlling, consideration in sentencing you.
115I have also had regard to the roles, offences and sentences in respect of your co-offenders, noting that you are the only one to have committed the offence of trafficking in a large commercial quantity of 1,4-butanediol.
116The closest to your role in the offending is co-offender Von Czapiewski, who pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, which has a maximum penalty of 25 years' imprisonment.
I previously outlined the extent of his offending and his role, which was a good deal lesser than yours.117His role was a trusted one, but he was not involved in any decision-making and was not the head of the syndicate, which was your role. His role was a more substantial one than that of Finlayson or Balic but not nearly as high as yours. At the time of offending, he was unemployed and struggling with a significant drug addiction. I was told that he was paid in drugs for his assistance, and he was not living any luxurious style. In contrast to you, he had a most limited criminal history, being one charge of using methylamphetamine in 2008, which was dealt with in the Magistrates' Court where he received a non-conviction fine of $200. He was entitled to a fairly substantial discount in all the relevant circumstances of his preparedness to plead guilty, and I accepted that he had a degree of remorse for his offending in the context of abstaining from drugs and recognising the wrongfulness of his offending behaviour. He had developed insight into the seriousness of his offending, but he had a way to go. Like you, his experience of custody would have been, and will be, harsher due to the COVID-19 restrictions from time to time and due the pain he suffered because of a back injury. I sentenced Von Czapiewski to four years' imprisonment and imposed a non-parole period of two years.
118The roles of Finlayson and Balic were more limited than Von Czapiewski's, with Balic's role being above that of Finlayson's. As I have said previously, Finlayson had some weighty matters in mitigation and was also entitled to a Doran discount. Her moral culpability was not as high as that of Balic, but each of them were involved at the lowest rung in the hierarchy, which was different to Von Czapiewski's situation and of course to yours. Balic and Finlayson were fairly vulnerable to the influence of others for various reasons, including the fact they were both rather limited in their cognitive abilities. Also, Balic was only 22 years old at the time of the offending.
119In the exceptional circumstances of Ms Finlayson's situation, I imposed, without conviction, an 18-month community correction order with various conditions, including unpaid community work.
120I sentenced Balic to 97 days' imprisonment, being time served, in combination with a community corrections order with various conditions, including unpaid community work.
121In all the circumstances, parity does not play much of a role in relation to your sentence for the various reasons I have just enunciated, but I have had regard to the other sentences and offences committed by the co-offenders.
122I am afraid that I assess your prospects of rehabilitation as being rather bleak in all the relevant circumstances. I must give strong weight to specific deterrence and protection of the community, and very strong weight to general deterrence in a bid to deter others from offending as you have.
123You acknowledge, through your counsel, that you are facing a significant sentence of imprisonment. I foreshadowed with Mr Nikakis at the plea hearing that you might well be facing double figures, and he accepted this.
124In all the relevant circumstances, I have arrived at a sentence which, in my view, gives appropriate weight to all relevant sentencing considerations.
125You are convicted to each of the offences on the indictment, and I make the ancillary order sought by the prosecution and not opposed by you.
126As I have now convicted you of Charge 1, I declare that you are a serious drug offender, which will be entered into the records of the court.
127In relation to Charge 1, you are sentenced to 11 years' imprisonment.
128In relation to Charge 2, you are sentenced to 12 months' imprisonment.
129I direct that six months of the sentence from Charge 2 be served cumulatively with the sentence on Charge 1, producing a total effective sentence of 11 years, six months, and I direct you serve seven years, seven months before becoming eligible for parole.
130I declare that you have already served 1,332 days' pre-sentence detention.
131If not for your pleas of guilty, I would have sentenced you to 16 years' imprisonment with a non-parole period of 13 years.
132Your sentence for Charge 1 relates to the standard sentence by being five years less than it. Although your offending is most serious, in my view, it falls below mid-range objectively, and the sentence was imposed in view of my assessment of the seriousness of your offending as well as other relevant matters in accordance with my instinctive synthesis.
133Is there anything arising, counsel?
134COUNSEL: No, Your Honour.
135HER HONOUR: Did you wish to speak to Mr Chin before - - -
136MR NIKAKIS: I have already organised a Jabber link with him this afternoon, Your Honour.
137HER HONOUR: Very well, thank you, yes. We will now adjourn.
‑ ‑ ‑
0
2
0