Director of Public Prosecutions v Fan
[2014] VCC 1325
•15 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-00994
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOWEN FAN |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 August 2014 |
| DATE OF SENTENCE: | 15 August 2014 |
| CASE MAY BE CITED AS: | DPP v Fan |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1325 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Make false document – traffick in a drug of dependence – possession of a drug of dependence
Legislation Cited: Crimes Act 1958 (Vic) – Drugs Poisons and Controlled Substances Act 1981 – Road Safety Act 1986 - Criminal Procedure Act – Sentencing Act 1991
Cases Cited:Ibbs v R [1987] 163 CLR 447 – R v Pidoto & O’Dea [2006] VSCA 185 - R v Bala [2010] VSCA 78 - R v D'Aloia [2006] VSCA 237 - R v Cheung Wai Man, Unreported, NSWSC, 11 September 1990 - R v Macleesh (1982) 30 SASR 486 [492]
Sentence:An aggregate sentence of four years and 11 months with a non-parole period of two years and eight months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Regan | |
| For the Offender | Ms M Altman |
HIS HONOUR:
1In this matter of Bowen Fan, Mr Regan appeared on behalf of the Director and Ms Condon appeared on behalf of Mr Fan, and today Ms Altman appears. Mr Fan faced trial in regard to Indictment No.C12647053 and on 5 June following a preliminary ruling made by this Court, Mr Fan decided to plead guilty to the six charges on the indictment and two summary matters brought before the court, pursuant to s.145 of the Criminal Procedure Act.
2For certainty, a further indictment, C12647053-1, was filed over on 12 August and Mr Fan pleaded to the same six charges again and the associated summary matters. Exhibit G was agreed to as the prosecution summary of the crimes and both counsel consented to it being tendered as a fair representation of the facts. In addition, a case concept diagram was tendered by the learned prosecutor, which was of much assistance to the Court, which we labelled Exhibit H. In addition, the photographs that have been used in the voir dire, were tendered respectively as Exhibits A to F.
3The first two charges on the indictment concern the production of a false document, in this instance two false licenses, each is an offence against s.83(a)(1) of the Crimes Act for which the maximum penalty prescribed by Parliament is ten years. Charges 3, 4 and 6 relate to trafficking respectively in each of methylamphetamine. Charge 3 occurred on the second day of September 2012; Charge 4 the second day of September 2012; and Charge 6 the 19 September 2012.
4The seriousness of this matter, being a breach of s.81 of the Drugs, Poisons and Controlled Substances Act 1981 is reflected in the maximum penalty of 15 years, which is an indication of the serious view Parliament takes of offences of this type. I will come back to the relevant authorities on trafficking in due course.
5Count 5 was an offence in regard to the same Act, but in this case an offence of possession, which occurred on the 19th day of September 2012, for which the maximum penalty is one year's gaol, or 30 penalty units. In addition, Mr Fan pleaded guilty to two summary matters, as I have indicated. The first was a proceeds of crime offence involving the sum of $38,315, for which the maximum penalty prescribed is two years' gaol, and the final matter that when apprehended in his BMW his license required him, when driving a car, to have an interlock fitted, which he did not. The penalty for such is 30 penalty units and/or four months' gaol.
6Mr Prosecutor, we were talking last time, I think we had it confirmed, did we not, there is no mandatory ‑ ‑ ‑
7MR REGAN: No, Your Honour, under the Road Safety Act amendments from about four years ago empowered courts to interfere with licenses on a discretionary basis, for practically ‑ ‑ ‑
8HIS HONOUR: Right, so there is nothing mandatory.
9MR REGAN: They are not mandatory.
10HIS HONOUR: Thank you. At the time of these offences Mr Fan was aged 46, he is now aged 48. His priors are admitted, however it is to be noted that his priors relate only to motor traffic offences. That is, not necessarily minor offences, but not traditional criminal matters, but matters related to breach of road regulations, et cetera. By way of pre-sentence detention to today's date he has served, as I understand it, 695 days, not including today. The matters are clearly serious crimes and there has been no dispute in regard to those.
11An analysis of the prosecution opening, Exhibit G, demonstrates that the crimes essentially came to light because of an altercation or assault which took place at premises in Princes St, Kew owned by Mr Fan and that occurred following an assault on the second day of September 2012. As a result, police attended and searched the premises. The product found on that day was the basis of the charges that I have detailed. However, subsequently, and I am not too sure what the connection is, I am sure there is some, but certainly he was stopped in his BMW on 19 September 2012. The summary matters related to that car and that stopping and subsequent to that his home was searched and the subsequent matters of Charges 5 and 6 emanated therefrom.
12Ultimately the real issue was, insofar as these proceedings were concerned, the degree of trafficking. Originally Charge 3 involved an alleged commercial quantity. Those matters were settled and the ultimate plea to the indictment, which took place on 5 June of this year, as I have said, was to the current indictment, or as to the current filed over indictment.
13The prosecutor was at pains during the plea to stress the seriousness of, in particular, Charge 3. This was the methylamphetamine found in the safe on the premises on the second day of September. It involved an amount of 440 grams of methylamphetamine of 70 per cent purity. Indicative at that level of at least one level above street level. Such product was contained in 12 one ounce bags.
14There was no gainsaying as to the seriousness of that matter by Ms Condon, when she made her plea. Insofar as these matters are concerned and your particular crimes, Mr Fan, I am required to concentrate particularly on your criminality and to classify the heinousness of such criminality within the class of offences, as required by Ibbs v R [1987] 163 CLR 447, [452].
15Insofar as the trafficking offences are concerned, the Victorian Court of Appeal in R v Pidoto & O’Dea [2006] VSCA 185, [34] considers the principles appropriate to the sentencing process. Four of the Court of Appeal Justices sitting in that case noted the structure now adopted by Parliament as:
"…adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence which has been trafficked."
16Insofar as that is concerned, it is noted, as the learned prosecutor answered my question insofar as Charge 3 is concerned, that the commercial quantity under the Act is 500 grams, so it indicates the significant amount that we are dealing with.
17More recently, in R v Bala [2010] VSCA 78 [12], the Court of Appeal said that the sentencing regime, insofar as your offences are concerned, Mr Fan, is quantity based, which means that the quantity will ordinarily be the key indicator of the seriousness of the offence, although, as they point out, such never is determinative of penalty.
18A general approach for sentencing Judges in crimes of this type was set out by Nettle JA in R v D'Aloia [2006] VSCA 237 [56] thereof, where his Honour said this, in this instance he was talking about MDMA:
"As far as the effects of MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions and the trafficking in any of them is therefore appropriately to be regarded as a serious criminal offence."
19Finally, I just want to refer to the words of Sully J in R v Cheung Wai Man. This was an unreported case of the New South Wales Supreme Court of March 1991, again which related to trafficking. However, it is pertinent. It was said of trafficking of drugs, the following:
"Such crime is in a very real sense a declaration of war on the community. It is a distinct challenge, both to the concepts of human dignity, and to moral values, otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law, which in the end is the ultimate guarantee of the personal freedoms and social stability, which all of us Australians take for granted."
20Insofar as your particular role, certainly you're at a level, it would appear, as a supplier to street suppliers and of commercial quantities, and I say that in the broad sense, retail sense. In R v Macleesh (1982) 30 SASR 486 [492], the Court spoke about the failure of Courts generally, and the authorities, to find the top persons involved in trafficking and spoke of how one should sentence persons of a lesser level. The following was said:
"It seems to me to follow that after making all due allowance for personal circumstances and antecedent of a prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that a man who participates in such an organisation, at any level, must expect and will receive a heavy penalty."
21They are the guiding principles insofar as sentencing of crimes of this seriousness. As I said, there was no resiling in this case by your counsel of the seriousness of your crimes, in particular Charge 3. Insofar as your plea conducted by Ms Condon was concerned, she pointed out that the real issue, as I have identified, was the issue of the original charge, insofar as a commercial quantity was concerned, that at the committal, indications as to plea had been given of, certainly insofar as the possession, which ultimately became Charge 5, and the summary matters. That the real issue, as I have indicated, was the large trafficking amounts and the two amounts found originally in the home at Princess Street.
22Ms Condon also pointed that in regard to Charges 3 and 4 they were found on the same day, at Princess Street, and therefore called for a degree of concurrency, with which I agree. Insofar as the circumstances leading to these crimes, she indicated that clearly there was evidence found at your home of the consumption of drugs. It was put that your background came from circumstances where your nightclub business had failed, it failed, as had your marriage, because of your addiction to drugs, and it was submitted that that addiction led to circumstances where you started to sell drugs for your own purposes and it was suggested that this is the reason why you ended up in the position that you now find yourself before this court. It is very difficult, of course, given the circumstances and the investigation in this matter, to refute any of those matters.
23Ms Condon took me to your background, the circumstances whereby you came to Australia, the unfortunate subsequent circumstances where you were held as a person pending investigation in the Port Hedland refugee establishment, for apparently a period of two years. However, you ultimately, so I am told, obtained citizenship, although we were not precisely certain when. You then began your restaurant business in Melbourne in 2005. It was put, as I have said, that because of your drug habit, this led to your family being split and a divorce taking place, ultimately you losing your business and your access to your daughter.
24Ms Condon also pointed out that you have had a significant amount in gaol to date, and I have identified those dates. Albeit that your wife was not in Court and there is no evidence to support this, it was put to me that your wife, sorry, I should say your ex-wife, is still prepared to support you, still prepared to provide for you, after you come out of gaol, a place to live. I am told that in fact you have not seen your daughter, Abdolla, as I understand her name is, for now going on three years.
25It was stressed, and I think this is of importance, and there is some veracity to the propositions put to this Court, that your prior offences would indicate, given the particular difficulties you had getting to this country, and being established in this country, that effectively you come before the Court with no prior criminal offences at all. Hence, a person of your age is entitled to seek leniency on that basis.
26Further to that, Ms Condon put to the Court that you indeed have had some benefit of the lengthy custody stay that you have already endured. You have been classified as what they call an exemplary work prisoner, and that comes about because of your status, in particular, of not being involved in intravenous drug use. Exhibit 1 was tendered, which was the report of Simon Candlish, Psychologist. There is nothing of overwhelming significance in that report, although there is an acceptance of your advice as to your dependency and the circumstances that I have already spoken about in addition to the history that I have already spoken about.
27The important thing put by way of positives for you is that it would appear that you have attained a deeper insight and a positive attitude to your life during that period. It was submitted that in the circumstances a lower parole period should be set for you because of your age, the fact that you have no priors, and the positive attitude you have taken while you have been in gaol.
28Tendered as Exhibit 2 was a letter from you, Mr Fan, and your counsel took the opportunity to read that letter, which has been translated by someone in gaol for you. That letter was quite impressive; you spoke of your background and family in China, the circumstances of your marriage running in to difficulty, your use of drugs to alleviate pain, and ultimately the development of that as a habit and your addiction. You said to the Court that these offences really came about from the fact that, as you described it, you had lost your mind.
29You expressed regret for the damage that you had done to the community by such trafficking and indeed expressed satisfaction actually that you were arrested and thereby the path that you were on was stopped. You expressed in this letter appropriate remorse. You assured the Court that post-gaol, that you are convinced now that you can live without drugs, that you intend to reform, that you sought from the Court a chance to prove yourself and you expressed sorrow for the offences you have committed, that is sorrow to the community. As I say, that letter is impressive, when you take it together with the fact of your age and the fact that you have no priors whatsoever.
30In response to the plea the prosecutor was at some pains to stress the serious nature of the offences committed, in particular Charge 3, and the fact that in his submission there should be cumulation, to some degree, insofar as Charges 5 and 6 with a penalty imposed in regard to Charge 3.
31The balancing process in these matters is always difficult. I have to balance the principles that I have read out and the demand in the community for appropriate penalties for persons who traffic drugs in the community, balanced against the ameliorating factors that I have spoken about in regard to your life and your antecedents. Doing as best as I can, therefore, can I ask you to stand please?
32I make the point that I am not sentencing clearly for a commercial quantity, but the point is to put - when we are talking about quantities, to put it in perspective.
33Yes, Mr Fan, in regard to Charge 1 you will be sentenced to a period of imprisonment of six months; in regard to Charge 2 a period of imprisonment of six months; in regard to Charge 3 a period of imprisonment of four years; in regard to Charge 4 a period of imprisonment of one year; in regard to Charge 5 a period of imprisonment of one month; and in regard to Charge 6, a period of imprisonment of one and a half years. In regard to the two summary matters, the proceeds matter, that is the first charge, a period of imprisonment of six months; and the second matter, being the interlock, a period of imprisonment of one month.
34Using Charge 3 as the base sentence, that is the four years, I will order that two months of Charge 1, six months of Charge 2, and three months of the summary Charge 1, be served cumulatively with each other and with the base sentence, making an aggregate sentence of four years and 11 months. Insofar as determining a period to be served prior to being eligible for parole, I order that the period that you must serve is a period of two years and eight months. As I indicated, that period is lower than would normally be set, and I make such order on the basis of your age, the fact that you do not have any relevant priors, and my acceptance of your evidence to this Court that you intend to lead a crime free life in the future.
35Insofar as that sentence is concerned, I am required to - I am sorry, before I get to that, I also declare that the - what did I say? Six hundred and ninety-six, is it? Or 95?
36MS ALTMAN: Six ninety-five.
37HIS HONOUR: Six ninety-five, I think, not including today. The 695 days not including today will be deemed as service of this sentence and a declaration to that effect will be made in this Court. I declare pursuant to s.6AAA of the Sentencing Act that had you not pleaded guilty I would have sentenced you to a period of imprisonment of six and a half years and a minimum period of three years and ten months. I have signed a disposal order and forfeiture orders, Mr Prosecutor, I think that is all I am required to do, is it not?
38MR REGAN: That is right, Your Honour.
39HIS HONOUR: Madam Interpreter, just so that your - Mr Fan knows, the end effective of that sentence is a maximum sentence of - sorry, an aggregate sentence of four years and 11 months for all offences. He is to serve two years and eight months. Obviously, given the time that he has served to date, there will not be all that much left to serve. I think he has effectively served two years, now, has he not?
40MS ALTMAN: Almost.
41HIS HONOUR: Almost, yes. So you have about another eight months. My associate wonders if I might have made a slight error when I was announcing the cumulation, it is two months on Charge 1; six months on Charge 6; and three months on the summary Charge 1. All right? Yes, any other matters?
42MS ALTMAN: No sir.
43HIS HONOUR: Yes, the prisoner can be taken away. Thank you, all the best. Thank you Mr Fan.
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