Director of Public Prosecutions v Chou

[2014] VCC 694

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR CR-14-00720

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHEN CHOU

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2014
DATE OF SENTENCE:	14 May 2014
CASE MAY BE CITED AS:	DPP v Chou
MEDIUM NEUTRAL CITATION:	[2014] VCC 694

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr K. Armstrong
For the Offender	Mr F. Holmes

HIS HONOUR:

1Chou Chen, you can stay seated for the time being.   You have pleaded guilty to an indictment charging you with attempting to possess a marketable quantity of methamphetamine.  You have no prior convictions.   The maximum term of imprisonment for that offence is 25 years.  The prosecution has tendered and relied upon a folder of documents which is Exhibit A.  At Tab 1 of that folder is a summary of prosecution opening, which was read this morning and contains facts, which I take to be accepted as truthful and accurate insofar as the sentencing hearing is concerned and I proceed to sentence you on the basis of the facts set out in that document.

2I am not going to read it again but it shows that for a period during late September of 2010, you were engaged in conduct with others with the intention of obtaining possession of a package which had been consigned from China to an address in Reservoir in Victoria.   You took part in that activity knowing that that package contained a quantity of an illicit border controlled drug.

3The prosecution also relied upon Tab 3 of Exhibit A, written submissions on sentence. At Paragraph 6, under the heading of nature and circumstances of the offence, relevant particularly to the application of s.16(A) sub.s 2(a) of the Crimes Act, the prosecution has set out their submission as to the nature and circumstances of the offence and at Paragraphs 10 through to 13, their submissions as to your role as an offender in this criminal enterprise. They base their submissions on evidence as to what you actually did and submit that you performed an intermediate role. As they put it, most tellingly, on your own account you organised the participation of Ms Weng, your then girlfriend, and another man by the name of Jai Chen in the collection of the consignment. There was some discussion between myself and your counsel during the course of the plea hearing as to the accuracy of that characterisation. I indicated that I was sceptical to say the least about the information you have provided in your instructions and the evidence you had given at the Court of Appeal in the case of Zia Weng, (2013) VSCA 221.

4Whilst I indicated that I was not prepared to accept your account or accounts given on previous occasions or indeed through your instructions to your counsel as being the whole truth, I do not approach your sentencing on the basis that what I regard as an unreliable account should be treated as an aggravating feature.  In other words, I do not treat what you said as increasing your moral culpability for your offending conduct.  But on the other hand, I am not prepared to accept what you have said on those other occasions by way of mitigation, as indicating that your role was less than that of an intermediary as characterised by the prosecution.  It may well be that there are elements of truth in the accounts that you have given, but I am far from satisfied that you have given a full and truthful account of your involvement in this matter.

5So I proceed to sentence you on the basis that you are an intermediary and I do so on the basis set out in the passages that I have identified in the prosecution submissions.  The quantity of the methamphetamine imported was a total quantity of powder of 211.4 grams, which had a purity of 58.5 percent, giving a total amount of pure methamphetamine of 123.6 grams.  The minimum marketable quantity is two grams, and I think I am right in saying that the cut-off point for the offence of attempting to obtain possession of a commercial quantity is 750 grams.

6So this is by no means the worst kind of offence concerned with the importation of methamphetamine, at least by reference to the amount involved.  But it is of course many times above the minimum marketable quantity also.  You must have known that you were attaching yourself to a criminal enterprise which was designed to reap a substantial profit from placing the drugs imported into the black market drug trade in Australia.   Even on your admission you were expecting to see financial reward for that. Whether that be the forgiveness of a debt of $5,000 or more, I am unable to say.  But clearly you were motivated by financial reward, yourself, even though I cannot be satisfied beyond reasonable doubt that you were the principle or that you were in a position in the criminal hierarchy that was higher than that of an intermediary.

7Turning to matters personal to you, your counsel provided me with a written outline of submissions which is Exhibit 1.   She spoke to those submissions,  firstly, of course, with the intention and hope that she may persuade me to treat you as a person lower in the hierarchy than an intermediary.   I indicated that absent further evidence and in particular evidence on oath, I was disinclined to so treat you or to accept her submissions.  No further evidence was provided. 

8Nevertheless, she did identify a number of matters that bear significantly on the sentencing discretion.  She pointed out that you came to Australia in 2007 on a 12 month student visa, and enrolled in an English course.  Although you only attended for about one month of classes.  In 2007, towards the end of that year and then a small number of classes in early 2008.

9Your parents apparently had paid for your tuition directly in about mid-2008.  You were born and raised in Fujian Province in China.   You were apparently born to a poor family who already had many children and could not afford to care for you, so you were placed for adoption and you were adopted by a more senior couple who, in particular the mother, imposed aggressive, angry and strict discipline upon you and she was emotionally hard upon you.

10You left school at an early age, and from about 15 years of age went to work, apparently driving earth-movers.  You provided your pay to your parents.  Perhaps not surprisingly, you came to Australia to further your prospects but having overstayed your visa in Australia and becoming an unlawful immigrant, you would have had to have relied upon cash in hand work.  I am told that you developed a gambling problem.  It was submitted that at least on your instructions, that having earned considerable money as a builder, you had gambled about $100,000 on the pokies at the casino.

11I indicated my scepticism about that and that I saw no particular reason to accept your instructions as being truthful.  It probably does not matter greatly, I certainly accept that as an over-stayer on your visa, you would have been vulnerable to all kinds of pressures and distractions and vulnerable to the kind of approaches that seem to be quite common situations such as this for people to participate in the importation of border controlled drugs into Australia, and to play a role which exposed them as the vulnerable person to the greater risk of getting caught than those who organised the venture and those who stand to gain the substantial portion of the financial return.

12I cannot rule out the possibility of course that you had a greater role, but I am prepared to accept that your role was that of an intermediary.  You did yourself no credit by allowing your girlfriend Ms Weng to proceed to trial and be sentenced to a term of imprisonment after she was convicted without stepping in to prevent that occurring.  You were apparently, as I understand it, expected to have made yourself available to give evidence at her trial but that did not transpire.  However, you did step forward after her conviction and did the right thing in accepting responsibility.  And I think you do deserve credit for that.  Your counsel submits that that is consistent with remorse.

13And whilst it seems to me that it is also consistent with remorse for the harm that you caused Ms Weng rather than remorse for your offending conduct, overall I am prepared to accept that you are now remorseful for your offending conduct and I propose to give you credit for that.

14I understand you have no substantial issues with illicit substances yourself so it cannot be said that you were motivated by supporting your drug habit to get involved in this criminal enterprise.  You have been an occasional user of cannabis, and a social drinker of alcohol but otherwise as your counsel pointed out, I think, very fairly and reasonably, you do not present as somebody with either illicit substance disorders or issues, or with the kind of mental, emotional, psychological issues which would engage what are known as the Verdins principles. 

15Reactively, it seems, you have been under some stress, particularly during your time in custody and have suffered from insomnia.  Although that also was no doubt related to Ms Weng's predicament, and no doubt caused you a good deal of trouble emotionally.  I have no doubt that it did.   You were 21 years of age when this offending occurred and you have had this matter hanging over your head essentially since you were caught on 28 September 2010. 

16And even though you hoped no doubt Ms Weng would be found not guilty and that you would be in the clear.  You must have feared that she would be convicted.  You must have feared that you might be receiving a visit from the police and end up in the dock in this case.  Therefore this matter I think will have been causing you a good deal of stress since 28 September of 2010.  That is to be taken into account.  Not only you have no prior convictions, but as I understand it, there has been no brush with the law since this offending conduct.

17You did the right thing, came forward knowing that you were in jeopardy of being taken into immigration detention because of your visa status.  And knowing that you may have thereby put yourself in jeopardy of being prosecuted yourself for these offences.   Indeed that is what occurred.   I think it is fair to say as your counsel pointed out to me that, and particularly given the advice which I understand you received, that there was always a possibility of acquittal on these charges and it would not have been surprising if you had decided to contest the matter, take it to trial and take your chances.

18However, you indicated that you did not wish to do that, and you wished to plead guilty.  Therefore, you have pleaded guilty at the earliest reasonable opportunity.  This matter has come to this point as soon as could possibly be arranged.  All of that I think supports the proposition that you do have a degree of genuine remorse. 

19I am told by your counsel that you are fearful of being deported back to China because you fear that the person who you claim put you up to this will be after you when you get back to China, because you think he has gone back there.  I am again sceptical as to whether that is all true.  But I am prepared to accept that the prospect of deportation will to some extent make your time in custody less comfortable whilst serving sentence for this offence.  Perhaps more significantly, I take into account that firstly you were in immigration detention for a period of eight months prior to you being charged and taken into custody for this matter.   You have 118 days of pre-sentence detention but the eight months is a period during which you were not at liberty, which was brought about by your surrendering yourself to enable evidence to be given at Ms Weng's appeal so the eight months cannot count  as pre-sentence detention.

20Mr Armstrong for the prosecution rightly points out, that is as a result of you overstaying your visa rather than because of this offence.  It perhaps does not strictly come within the Renzella principles and therefore it should perhaps be treated differently.  I am inclined to give you a substantial reduction of sentence for the eight months that you have been in immigration detention, and to apply principles akin to the Renzella principles in assessing the weight to be given to that factor.

21You, as I have indicated, were 21 at the time of the offending.  You are still only 24, going on 25.  So you're still a young man.  Ordinarily, rehabilitation would play a significant role in sentencing a young person, particularly when dealing with a person with no prior convictions who is in prison for the first time.  However, these are prevalent offences.  They are generally committed by young people with no prior convictions and in my opinion, general deterrence effectively trumps rehabilitation as being one of the principle sentencing considerations.  That is not to say that your rehabilitation is irrelevant, but the degree to which it achieves prominence I think has to be moderated having regard to the need for general deterrence in cases such as this.

22Even though you were not a principle in this matter, you did play a vital role and it is necessary for me under the Crimes Act which governs the sentencing principles in this case, to impose a sentence of a severity that is appropriate for the circumstances of the offending. I am inclined to accept your counsel's submission that you are unlikely to offend again, certainly I think your prospects of rehabilitation are to be regarded as good, I see no reason not to regard them as good. One would hope that you have learnt a very significant lesson from your involvement in this matter and the consequences of your involvement in this matter and that that would act as a significant deterrent to you. I do not ignore the need to consider the principle of individual deterrence, but I seems to me that general deterrence is the principle sentencing consideration.

23I am required to pay regard to the various matters to the extent that they are relevant, that are set out in s.16(A2) of the Commonwealth Crimes Act and I do, I think I have covered a number of those.   I cannot impose a term of imprisonment unless I am satisfied that that is the only punishment that can be imposed in this case, it is not suggested by your counsel that any other sentence is appropriate having regard to the proper application of sentencing principles.

24I accept that you have now taken responsibility and your plea of guilty supports that.  It was at the earliest reasonable opportunity and you have saved the state the cost of a trial and the witnesses the inconvenience of having to give evidence in your trial, and it is further evidence of your remorse.

25I was supplied in the folder of materials with - that is Exhibit A - with materials relating to current sentencing practice, and I have been through that material.  I am reasonably familiar with it in any event, but the principles I think to be applied in arriving at an appropriate sentence in this case are not in dispute and it is the application of those principles that is the subject of the contention on the plea.

26Doing the best I can to give proper affect to each of those considerations.  I am now ready to impose sentence upon you, so would you please stand?  For the offence of attempting to obtain possession of a marketable quantity of methamphetamine, I convict you and I sentence you to imprisonment for a period of three years and nine months.  And I order that you serve a period of two years and six months before you become eligible for parole. 

27I declare 118 days of pre-sentence detention are to be reckoned as time served on the sentence that I have imposed.  That will be deducted administratively for the time you will actually have to serve.  But for your plea of guilty, I would have sentenced you to imprisonment for a period of five years and six months, with a non-parole period of three years and six months.

28Are there any orders that I need to make?

29MS HOLMES:  Your Honour, might I ask that  my client be retained in court briefly so that I can speak to him because I don't have sufficient identification to get into the cells and he'll probably then be taken back to ‑ ‑ ‑ 

30HIS HONOUR:  Yes, and you might never get out again.

31MS HOLMES:  Thank you.

32HIS HONOUR:  All right, I'll certainly permit that to occur when I leave the Bench and facilitate that.  I take it there's no objection to that, is there?  Obviously it will be helpful if the interpreter's willing to remain for a few minutes just whilst that occurs.

33MS HOLMES:  That will be helpful, thank you, Your Honour.

34HIS HONOUR:  And I think it's useful for these sentences to be explained.  All right.  Thank you both.

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