Director of Public Prosecutions v Fan
[2016] VCC 260
•11 March 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00077
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANUS FAN |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 December 2016 |
| DATE OF SENTENCE: | 11 March 2016 |
| CASE MAY BE CITED AS: | DPP v Fan |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 260 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | CDPP |
| For the Accused | Mr G. Georgiou | Anthony Isaacs |
1Mr Fan, initially your sentence was to be handed down on 18 December 2015. Your case was listed before me on 15 December where I was informed that some serious matters had arisen which would affect the sentencing process. I was urged to adjourn the sentence hearing of 18 December 2015.
2The matter was listed for mention on 23 February 2016. You have remained in custody in the meantime. On 23 February 2016 I was advised that you had been interviewed by police. In the intervening period it was submitted on your behalf that further plea and sentence could take place after the contents of the interview with police had been assessed by your legal advisors. The further plea and sentence was adjourned to this day, 11 March 2016.
3On 9 March 2016 the court received a written notice from your legal counsel that no further submissions would be made in mitigation of your sentence. In those circumstances I will proceed to sentence you now.
4Manus Fan, on 19 November 2015 a jury of 12 unanimously found you guilty of the following charges, Charge 1, dealing in the proceeds of crime contrary to s.400.1(1) of the Criminal Code Commonwealth. This charge has a maximum penalty of 20 year imprisonment and/or 1,200 penalty units.
5Charge 3, you were found guilty of the alternative charge, which was recklessly dealing in proceeds of crime contrary to the s.400.6(2) of the Criminal Code. This charge has a maximum penalty of five years imprisonment and/or 300 penalty units.
6Charge 4, dealing in the proceeds of crime contrary to the s.400.4(1) of the Criminal Code Commonwealth. This charge has a maximum penalty of 20 years imprisonment and/or 1,200 penalty units.
7Charge 5, trafficking in a commercial quantity of a controlled drug. In that charge the drug was cocaine. This charge has a maximum penalty of life imprisonment and/or 7,500 penalty units.
8Charge 6, trafficking in commercial quantity of controlled drug. In that charge the drug was heroin. This charge has a maximum penalty of life imprisonment and/or 7,500 penalty units.
9Charge 7, trafficking in commercial quantity of a controlled drug, which was meth amphetamine, and that charge has a maximum penalty of life imprisonment and/or 7,500 penalty units.
10On 5 June 2014 you were arrested by the Australia Federal Police. You have been in custody since that time. That is a total of 645 days not counting today. Your offending traverses two separate but connected areas of criminality, one of drug trafficking and one of money laundering. I will deal with the offending separately.
CIRCUMSTANCES OF THE DRUG OFFENDING
11The drug offending by you is centred on 601/1 Bouverie Street, Carlton. On the day after your arrest the AFP executed a search warrant and searched the unit at 601/1 Bouverie Street, Carlton.
12The police search revealed;
(a) a total of 8.12 kg of pure cocaine. This amount of cocaine is 5.4 times the commercial quantity for this drug. The wholesale value of the drug was estimated to be between $2,016,000 and $2,464,000. The street value was estimated at $9.472m. This is the basis of Charge 5;
(b), a total of 5.794 kg of pure heroin. This amount is 2.897 times the commercial quantity of the drug. The wholesale value of the drug was between $2.348m and $2.592m. The street value was estimated between 13 and $23m. This is the basis of Charge 6; and
(c), a total of 1.615 kg of pure meth amphetamine. This amount is 1.07 times the commercial quantity for this drug. The wholesale value of this drug was between $492,000 and $796,000. The street value was estimated to be between $1.5m and $2m. This is the basis for Charge 7.
13Your involvement with the unit went back to February 2013. You organised for a third party to rent the unit. The evidence revealed that the third party never lived in the unit and that you had control over the unit from February 2013 until the police search on 6 June 2014.
14In the search of Unit 601 the police also found a revolver with ammunition. Your fingerprints were on the box containing that revolver. There were digital scales, multiple mobile phones, multiple clip seal bags and other paraphernalia related to drug dealing.
15The drugs themselves were packaged and labelled "A", "B", and "C", to differentiate them. The level of purity in each of the drugs, ranged up to 70 per cent, which is indicative of a wholesale level of drug dealing rather than street level dealing.
16Your fingerprints were all over this unit and the packaged drugs within it. Consistent with the jury verdict I find that you were in the position of a warehouseman or guardian of this cache of drugs.
17A wholesale estimate of the value of the drugs' total were worth $6m at the street level. The total value was approximately $25m. You were a highly trusted and significant part of a sophisticated drug trafficking operation. On any measurement this was a large drug trafficking operation.
THE CIRCUMSTANCES OF MONEY LAUNDERING
18The money laundering offences are based on the police surveillance of you and your involvement with activities at 201/466 Swanston Street, Carlton and 615/632 Doncaster Road, Doncaster.
19The unit at 201/466 Swanston Street, Carlton was under surveillance by the authorities and under cover optical devices were installed in that unit. On 27 May 2014 a co-accused, Chung, was arrested at Melbourne Airport for money laundering offences.
20You met with Guan, another co-accused, who up until that time had been running the money counting operation at Unit 201. From 28 May 2014 until 1 June 2014 you were observed at Unit 201 counting money and instructing others and in particular an unknown male on the counting of money.
21On the last day the two of you packed up the "counting house", as it became referred to, and were seen carrying two large canvas bags from the unit to the lifts. The second premises of relevance in the money laundering charges is 615/632 Doncaster Road, Doncaster. This was your residence.
22You had been under police surveillance since 28 May 2014. On 5 June 2014 police observed you deliver a Coles bag, and I have put in brackets there "packaged money inside the bag", to unknown Asian males. The package was followed and ultimately Chen, a co-accused was arrested with the package money totalling $314,000. This is the basis of Charge 1.
23At the time of your arrest you had $27,000 in a satchel bag on you. The satchel bag was observed on much of the CCTV of you at Bouverie Street and Doncaster Road environs. The $27,000 is the money the basis of Charge 3.
24On the morning of 6 June 2014 the police executed a search warrant at your premises in Doncaster and located $740,000. $500,000 of this money was packaged up what I describe as bricks with the notation "ten" and "No.10" markings on each of the packages. One of the search officers said there was money all over the unit. At this premises numerous mobile phone, BlackBerry's, and bundles of cash were found. This is the basis of Charge 4.
25The total of the money seized either from you, your premises, or the delivery to Chen amounted to $1,080,000. The three charges relate to a short period of time and occur between when you take up the role from Guan to your arrest on 5 June 2014.
26On the money laundering charges you are a highly trusted operative. With the money laundering activity you take over the role vacated by Guan. You are in control and custody of a large sum of money. You arrange for the delivery of the money to Chen. You supervise and train another in the money counting at 201/466 Swanston Street, Carlton.
27I find that you were a highly trusted and integral part of the two areas of criminal activity of drug trafficking and money laundering. You have a footprint in both camps. The evidence does not reveal what you had received by payment for your criminal involvement. In the intercepted conversations there is reference to wages but not to amounts. The evidence reveals you were not employed in legitimate work since you moved to Victoria in early 2013.
28I conclude that you have engaged in this criminal activity of money laundering and drug trafficking for profit as a matter of common sense. Your offending in respect of drug trafficking and money laundering is not opportunistic. You were involved in these criminal enterprises of your design and you have played a crucial role in each of them.
29The six offences that you have been found guilty of are serious examples of serious charges. The seriousness of the charges is reflected in the maximum penalties for each of those charges. I have referred to these earlier in the reasons.
PERSONAL CIRCUMSTANCES
30You are now 27 years old. At the time of your arrest you were 25. You were born and grew up in the New Territories of Hong Kong. You are an only child.
31Your father is 60-years-old and he owns and operates a cloth screen printing business in Tianjin province in China. Your father has conducted that business for the whole of your life. It has been a successful business but meant that your father was not present in the family home from Mondays to Fridays whilst you were growing up.
32Your mother is 52. Your mother is engaged in home duties and does the bookkeeping for the family business. Your mother suffers from sciatica, which makes it very difficult for her to travel. Relevantly, that means it is very difficult for her to travel to see you here in prison in Australia.
33I was told that your parents came to Australia to visit you in January of this year. They were able to visit you in prison on these occasions in that week. Otherwise, your contact with them has been limited to a 12 minute phone call each week.
34In the course of your plea your mother gave evidence with the assistance of an interpreter. Your mother set out in a heartfelt manner your upbringing and that you were nice and kind. She said you were respectful and well behaved and even assisted her with the housework when you were at home.
35She stated that you were all she had in her life and she pleaded for you to be given a chance and for you to come back to your family. She said she never wanted you to come to Australia but she knew it was a good opportunity for you. She blamed herself and felt responsible for your current predicament. Her evidence was an open grieving by a mother for her only living child.
36You completed your formal education at Year 11 aged 16. You initially worked as a delivery person for a takeaway food outlet that you had previously worked part-time at when you were a student. You commenced a hairdressing apprenticeship and worked in that area for some three to four years but you never fully qualified.
37Your next employment was as a clerk, buying and selling shares. That employment was for approximately one year. In 2012 you came to Australia. Initially you worked in restaurants in Sydney. You then moved to Queensland and worked as a processor in a chicken factory.
38You moved to Melbourne with Mel Chang. Initially you lived in backpackers and then moved to private accommodation. Since your arrest on 5 June 2014 you have been in custody on remand for these offences.
39You spent 17 days in police cells and then seven days in the Metropolitan Assessment Prison before you were transferred to the Metropolitan Remand Centre. You are a kitchen billet and are part of the essential worker program in the prison. You are a trusted prisoner by the authorities in that prison.
40Exhibit F1 was a reference to that affect from Tim Rudolph, who is from Corrections Victoria. Whilst in custody you have successfully completed eight courses at Kangan Institute, mainly related to catering activities. You also donate money to the Royal Children's Hospital Good Friday Appeal from your prison wages.
41I take note of your personal references from Can Chi Fi Stanley and Can Yuin Chin, both residing in Hong Kong, who describe you as a kind, gentle, and considerate person to others.
SENTENCING CONSIDERATIONS
42The most significant consideration when sentencing a federal offender, is s.17A of the Crimes Act (Cth), which provides that a court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
43A term of imprisonment is the only appropriate sentence for each of your offences. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court is to take into consideration when sentencing a federal offender.
44There are many factors I must take into account when sentencing you, they include the following;
(a) principles of general deterrence;
(b) the nature and circumstance of the offences including your moral culpability for them;
(c) the maximum applicable penalties for the charges;
(d) if the offences form part of a course of conduct consisting of a series and serious criminal acts of the same or similar character to that course of conduct;
(e) the deterrent effect of any sentence or order under the consideration it may have on you. In other words, specific deterrence;
(f) the need to ensure that you are adequately punished for these offences;
(g) your character, antecedence, age, means, physical and mental condition; and
(h) the probable effect any sentence or order under consideration may have on your family, your prospects of rehabilitation, and the fact that prison is a sentence of last resort.
45I also take into account the current sentencing practices. I was provided with a folder of sentences imposed by other courts on different offenders for similar offences of trafficking a commercial quantity of drugs and money laundering.
46Each of these cases are distinguishable from one another as they are from your case and at best provide a guide to current sentencing practices. I have taken into account the principle of totality in sentencing. You are a young man. You committed the series of very serious crimes in a relatively short space of time. A significant degree of concurrency is warranted in your case to ensure the total sentence upon you is not a crushing one.
47The hardship on your parents and your mother in particular does not amount to an exceptional hardship where I am required to exercise some mercy in sentencing you. I do however accept that your long term in custody in a foreign land with a foreign language does have the effect of making your time in custody more isolate and difficult for you.
48Your total sentence has been moderated to reflect your personal hardship in custody. I take into account that you have engaged in prison life and are now an essential service worker or a trusted prisoner. This engagement augers well as an indicator that you may be prepared to rehabilitate and turn your life around upon your release.
49The fact that you are sentenced to a lengthy term of imprisonment will, on the current state of the law, mean that you will be deported at the expiration of your sentence. Pursuant to the authority of DPP v Zhuang [2015] VSCA 96 I have to give consideration to the fact that your deportation will increase the burden of imprisonment upon you.
50In effect you will have spent approximately half of your life after leaving school at liberty in Hong Kong and Australia and half of your life in custody in Australia by the time of your release for these offences. I take into account that you have no prior convictions and have not been in prison before. In the face of this offending it is not a significant factor in your favour.
51General deterrence is of paramount importance when sentencing persons convicted of trafficking in a commercial quantity of a drug of dependence. In your case there were three separate drugs. The unit at 601/1 Bouverie Street, Carlton was a warehouse for drug trafficking to a significant extent.
52As I have previously stated the wholesale value of all the drugs seized at the unit on a wholesale basis was approximately $6m. The street value was estimated to be more than $24m.
53General deterrence is also of great importance when considering that three charges of dealing with proceeds of crime and in the case of Charge 3, recklessly doing so. The total cash seized was in excess of $1m. The common law principles of specific deterrence, denunciation, just punishment, all call for a significant term of imprisonment for the totality of your offending in this case. Would you stand, please?
54On Charge 5 you are convicted and sentenced to eight years' imprisonment commencing 11 March 2016.
55On Charge 6 you are convicted and sentenced to eight years' imprisonment commencing 11 March 2018.
56On Charge 7 you are convicted and sentenced to seven years' imprisonment commencing 11 March 2020.
57On Charge 4 you are convicted and sentenced to five years' imprisonment commencing 11 March 2024.
58On Charge 1 you are convicted and sentenced to four years' imprisonment commencing 11 March 2026.
59On Charge 3 you are convicted, which is recklessly dealing in proceeds of crime, the alternative charge that you are convicted of, you are sentenced to six months' imprisonment commencing 11 December 2029.
60I declare that you have served a total of 645 days of pre-sentence detention in respect of these sentences which will be deducted administratively from your sentence.
61On my calculation that is a total effective sentence of 14 years and three months'.
62I set a non-parole period of 11 years'.
63DISCUSSION FOLLOWS
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