Director of Public Prosecutions v Gao
[2023] VCC 1707
•15 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00721
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YUAN GAO |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 24 August 2023 | |
DATE OF SENTENCE: | 15 September 2023 | |
CASE MAY BE CITED AS: | DPP v Gao | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1707 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Plea of guilty – trafficking commercial quantity – breach parole –possession drug of dependence – deal with property reasonably proceeds of crime – relevant prior convictions – cumulation on sentence currently being served after parole revoked – no exceptional circumstances.
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Bowen [2021] VSCA 355.
Sentence: Total effective sentence of two years and eight months, non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Wilson | Office of Public Prosecutions |
| For the Accused | Ms K. Farrell | Slink and Keating Solicitors |
HIS HONOUR:
Yuan Gao, you pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity which carries a maximum penalty of 25 years' imprisonment. You have also pleaded guilty to two charges of possession of a drug of dependence, both of which carry a maximum penalty of one year imprisonment
In addition, you pleaded guilty to the following summary offences: Dealing with property suspected of being the proceeds of crime, maximum penalty two years' imprisonment; Breaching a condition of parole, maximum penalty three months' imprisonment; Possessing body armour, maximum penalty two years; Two charges of possession of a Schedule 4 poison for which the maximum penalty is a fine of no more than 10 penalty units
You were born on 29 January 1994. At the time of the offending, you were
28 years old. You were living in a self-contained bungalow attached to your parents' home in Cheltenham. You were on parole at the time of the offending. Due to non‑compliance and this further offending the Parole Board revoked your parole on 8 December 2022 and you are currently serving the remainder of that sentence. Your sentence is due to expire on
4 September 2024.
On Thursday 8 December 2022 at approximately 12.15 pm police officers First Constable Ben Lane and James Clifford were patrolling in an unmarked police vehicle in Highett. The officers saw a 2016 white sedan Mercedes travelling west on Jackson Road, Highett. First Constable Clifford conducted a vehicle search on the Mercedes registration plates. The vehicle was flagged as having been recently intercepted by police three days earlier, with the vehicle containing quantities of methylamphetamine, heroin and cocaine.
As a result, Officers Lane and Clifford made a U-turn on Jackson Road to try and locate the Mercedes. They eventually located the Mercedes at Dunkley Avenue and Fox Close housing units parked in the communal car park. Officers Lane and Clifford saw two females standing next to the vehicle before pulling up behind the Mercedes and activating the police lights. The attendance of police surprised the two females who attempted to walk away before being stopped and spoken to by the police officers.
Whilst the officers were speaking with the two women you began walking towards the vehicle from Dunkley Avenue. When you realised police were there you started to walk away. You were asked by First Constable Clifford to confirm your identity. You were holding the Mercedes car keys. You told police that the vehicle belonged to your mother. The police vehicle check had you as the registered owner. During this conversation with police, you appeared to shake and explain to the officers that you were nervous due to your history and the fact you were currently on parole.
Due to the false information, you had given, your demeanour, the fact you were on parole for drug-related offending and because the area was known for high drug activity, police formed the belief that you may have been in possession of drugs and told you they were going to perform a pat-down search on you and search your bags. You became defensive and told them you wanted to contact your lawyer because the search was unlawful. You placed your belongings on the ground, which included your phone, wallet, and bag.
You remained combative and questioned the validity of the search. As a result of your behaviour a second police unit was called. When they searched you, police located five Ziploc bags containing a clear crystal substance. Preliminary testing indicated the substance was methylamphetamine. Subsequent analysis of the five plastic bags returned a result of 61 grams of pure methylamphetamine. This is the basis of Charge 1, trafficking in a drug of dependence in a commercial quantity, and the related summary offence Charge 5, breaching a condition of parole.
You were placed under arrest for possessing the drug of dependence and you were issued with a caution and your rights. A search of your black
Louis Vuitton satchel located a blister pack containing 14 prescription tablets labelled Lyrica Pregabalin 300 milligrams. This is related Summary Offence Charge 8, possessing a Schedule 4 poison.
A small white zipped Louis Vuitton purse was also located inside the satchel containing a Ziploc bag with two-thirds of a broken alprazolam pill, and three diazepam pills. This is the basis for Charge 2 and Charge 3, possession of drugs of dependence.
Police also found two USBs, two memory cards and one Telstra SIM card. Inside your wallet was $470 cash. This is the basis of the related Summary Offence Charge 4, dealing with property suspected of being the proceeds of crime.
No items were seized from your vehicle when it was searched. You were taken to Caulfield police station for interview. The interview was suspended so police could apply for a search warrant of your address at 1 Edward Street, Cheltenham. At about 5.45 pm police executed a search warrant at your address. Your parents were present, as was your younger sister.
A search of your bungalow located the following: one body armour vest which is the basis of Summary Charge 9; four blister packs of Lyrica Pregabalin which is part of Charge 8, a Schedule 4 poison; a blue bottle containing diazepam, five milligram tablets - a further part of Charge 3; and two containers of Viagra tablets, 75 tablets in total, which is the basis of Charge 10 as I follow it. Also present were scales, plastic snap lock bags and elastic bands.
In your interview you made largely no comment, although you did say you lived at the bungalow, and you were unaware of the body armour vest underneath the bed. You had not worn it before. You said you had previously had a prescription for the Lyrica and the diazepam, but you never had a prescription for the Viagra.
You have a substantial and relevant criminal history. I have already mentioned that you were on parole at the time of these offences. On 16 June 2020 for trafficking a drug of dependence in a commercial quantity you received a sentence of four years and six months. You also pleaded guilty to handling stolen goods, dealing in property suspected to be the proceeds of crime and other offences. The total effective sentence for all charges was five years' imprisonment, with a minimum non‑parole period of three years. The drug you trafficked on that occasion was methylamphetamine.
I have read the sentencing remarks of Judge Dawes in that matter. The offending in that case was similar but objectively more serious than the offending for which I will sentence you. The trafficking involved a quantity of mixed methylamphetamine, 271.7 grams, found in a car you were driving. The trafficking was based on possession for sale on a single day as is the case here. The surrounding offending was more significant.
On 12 September 2019, the County Court heard your appeal against a sentence of the Melbourne Magistrates' Court from 26 June 2019. Those proceedings concerned the breach of a drug treatment order you had earlier received on 9 January 2019 for drug offences, including trafficking methylamphetamine, a car theft and other offences. The original sentence was a drug treatment order after a period of 391 days in custody. In
June 2019 the magistrate ordered that you serve the unexpired portion of your sentence which was 120 days. That was on a breach of the drug treatment order. At the appeal in September 2019, you were ordered to serve a period of 60 days, with 60 days taken into account as pre‑sentence detention, which seems to be effectively a confirmation of the magistrate's order.
You have prior convictions going back to 2013 for drug trafficking on several occasions and a host of dishonesty offences. On multiple occasions you received dispositions designed to facilitate your rehabilitation such as the drug treatment order and community correction orders.
Your history is relevant to your moral culpability for this offending, your prospects of rehabilitation and protection of the community from your constant offending. It is also relevant to specific deterrence, which is the need to send you a message that continued serious offending will result in significant punishment.
Your personal circumstances were outlined in the psychological report, which was tendered on the plea, and in your counsel's written submissions.
You were born in Shanghai on 21 September 1994. You are now almost
29 years old. When you were nine years old your family moved to Australia to give you an opportunity for a better life. You became a citizen in 2005, about two years after you arrived here. You have a younger sister who was born in Australia.
Your father was a qualified engineer in China and your mother worked in information technology. Due to the language barrier and other difficulties, they were unable to find employment in those fields in Australia. You went to three different primary schools. There were not many other Chinese students and you felt like the odd one out. You were bullied. Your parents moved to Hawthorn when you were in primary school. You went to the Hawthorn West Primary School and Hawthorn West Secondary College. Your family lived above a milk bar business which they operated. The family sold the milk bar after your grandfather was stabbed during a robbery and moved to Cheltenham. You then went to McKinnon Secondary School.
You began experimenting with drugs at a relatively early age. You left home at 15 and couch surfed with friends, returning home intermittently. At 17 years of age, you went back to live with your family. You began using ecstasy and progressed to using methylamphetamine and GHB.
Before your release on parole in August 2022 you had undertaken in prison several courses and you had been abstinent from drugs while serving that sentence. Whilst on parole you worked in demolition for a man named Curtis Thatcher and in plumbing for Michael Wind. They have provided letters of support confirming that you have employment with them, and I have taken into account their letters of support. You had also apparently commenced a handyman business having completed a Certificate III in Microbusiness whilst in custody.
You were on intensive parole for a period of three months. I am told that at the time of the offending you started to struggle with some interpersonal conflicts in your family and with your then girlfriend and you relapsed into drug use as a coping mechanism. You regressed quickly because this offending took place in early December and by that time you were in possession of a commercial quantity of methylamphetamine which you intended to sell.
Your family love you and they remain supportive of you. They attended the plea. Your mother and current girlfriend visit you in custody.
Trafficking in a commercial quantity of drugs is a serious offence as reflected in the maximum penalty of 25 years.
Your counsel, Ms Farrell, submitted that the gravity of the trafficking charge was limited by the quantity, which was not far above the commercial threshold of 50 grams pure, and because it was confined to a single day. The prosecution submitted that this was a medium range example of trafficking in a commercial quantity.
The sentencing regime for trafficking drugs is quantity based and this is a possession of sale case on one day, so I accept this case is objectively towards the lower end of the scale for commercial quantity trafficking.
Ms Farrell further submitted that you were a street level trafficker who trafficked to support your own drug addiction and that your offending was unsophisticated. I am not entirely sure what she meant by a street level trafficker, but if that term is meant to convey a drug user selling purely in small quantities to other users to fund your own use, I reject that characterisation. The amount in your possession, which was above the commercial quantity, is not consistent with such a label.
I do not know precisely in what quantities you intended to sell the methylamphetamine. The scales and the bags in your bungalow suggest you were back up and running as a trafficker and ready to sell that methylamphetamine. You had a commercial quantity in your possession intending to sell it and such an amount can net a not insignificant profit. Furthermore, you have offended in just this way before. You were in possession of a commercial quantity for your last prior conviction. You are familiar with this type of offending. You know the consequences. Having regard to the fact that this was a commercial quantity I infer that your intent was to make a profit at some level. I regard your moral culpability as significant.
All of that said, I accept that you have been a long-term drug user and that you were a drug user at the time and that your involvement in drug related activity, including trafficking, stems from your drug use and from a relapse in this case.
Charges 2 and 3 are relatively minor offences which add little to your overall criminality, nor do the related summary offences. However, the overall picture which emerges is of someone who once again decided to embark on not insignificant trafficking activity. These offences provide some context to the trafficking charge.
You did plead guilty at the earliest possible opportunity. Your plea indicates a willingness to facilitate the course of justice and your remorse. You have spared the community and the witnesses the resources involved in contested court proceedings. As a result of the backlog caused by the COVID‑19 pandemic, the utilitarian value of your guilty plea is heightened. The principles in the case of Worboyes apply.[1]
[1]Worboyes v The Queen [2021] VSCA 169;
I give modest weight to the increased burden of imprisonment due to COVID‑19 in the time you have been in custody, including the period in custody you spent on the previous sentence. At the present time the community is not in the grip of a pandemic and I cannot allow any real mitigation in terms of increased restrictions in the prison at the moment, but, as I say, I do take it into account in that you were sentenced in the early days of the pandemic and much of your previous sentence would have been served pursuant to restrictions in place in the prisons.
Having regard to your criminal history, I can take no more than a guarded view of your prospects of rehabilitation. If you do not stop using drugs your prospects of rehabilitation are very poor. There is though hope for you. The letter you wrote to the court shows insight and you seem to be an intelligent person without any problems, other than your drug addiction, impeding your prospects of rehabilitation. You have the support of your family and the prospect of employment upon your release from custody.
In this case though you showed little resilience when you encountered problems in your life and soon after your intensive parole was over you quickly reverted to serious criminal behaviour. However, with advancing age there is some hope you can become a productive member of the community. In custody you work as a billet, and you have recently completed a Certificate II in Supply Chain Operations.
When you were remanded for the current offending, you engaged in weekly one-on-one drug and alcohol counselling through Caraniche, completing some six to eight sessions before you were transferred to another prison. You have at least done what you can while in prison to increase your chances of a successful transition back into the community when you are eventually released.
You were on parole at the time of this offending, therefore, in the absence of exceptional circumstances any sentence I impose must be cumulative on the sentence you are currently serving. It has been conceded there are no exceptional circumstances in this case.
In the decision of the DPP v Bowen the Court of Appeal held that the principle of totality requires me to consider the entire 54‑month period which you will serve under the original sentence of Judge Dawes from 2020 in relation to which your parole has been revoked.[2] The court in Bowen said this at paragraph [8]:
'In a case like the present, where a breach of parole is involved, totality requires the sentencing judge to consider two sentences: the sentence to be imposed for the breach offending and the original sentence imposed for the prior offending. The court needs to satisfy itself that the combined effect of those two sentences will not be disproportionate to the aggregate criminality involved in the breach offending and the prior offending.'[3]
[2]DPP v Bowen [2021] VSCA 355.
[3] Ibid [8].
In deciding the sentence to be imposed I have applied the totality principle in accordance with Bowen and I have considerably reduced the sentence
I would have otherwise imposed to ensure the combined effect of the two sentences is not disproportionate to the aggregate criminality involved. There is no basis on which to order concurrency. This can only be done by a reduction in the length of the sentence.
The prosecution submitted a straight sentence of imprisonment is the appropriate disposition. Such a sentence can only be imposed if the total effective sentence does not exceed two years' imprisonment. The prosecutor conceded that this was implicit in the sentencing submission.
Ms Farrell submitted that I should impose a sentence lower than two years and fix a non‑parole period. As I have already remarked, the offending in this case is a lower-level trafficking in a commercial quantity, but trafficking in a commercial quantity is a very serious offence which nearly always merits a significant prison sentence. Given your criminal history for similar offending, specific deterrence and community protection, assume much greater significance than is often the case and they are factors which pull towards a more substantial sentence than two years.
In sentencing you for this offence of trafficking in a commercial quantity, general deterrence is the most important sentencing principle. General deterrence requires a court to send a message to individuals inclined to offend in this way, that significant prison sentences will result if they are detected and convicted. I must denounce your offending through the sentence I impose. The need to deter you from continuing to offend in this way is also important given your criminal history. Community protection from your drug dealing activity is relevant, as is just punishment.
In this case your rehabilitation must take a backseat to these other purposes in sentencing given your entrenched criminality. In fixing the non‑parole period in this case, which I intend to impose, I have taken into account the totality principle as articulated in the case of Bowen.
Mr Gao I sentence you as follows:
On Charge 1 of trafficking in a drug of dependence, methylamphetamine in a commercial quantity, you are convicted and sentenced to a period of imprisonment of two years and eight months.
On Charge 2, possession of a drug of dependence, one month's imprisonment.
On Charge 3, possession of a drug of dependence, one month's imprisonment.
On Summary Charge 4, suspected proceeds of crime, two months' imprisonment.
On Summary Charge 5 of breaching parole one month's imprisonment.
On Charge 8, a Schedule 4 poison, convicted and fined $200.
On Charge 9, possession of the body armour, one month's imprisonment.
On Charge 10, a Schedule 4 poison in respect of the Viagra, convicted and fined $200.
All prison sentences are concurrent with the sentence on Charge 1. That makes a total effective sentence of two years and eight months.
I fix a non‑parole period of two years. By operation of the Sentencing Act you will first serve that non‑parole period.[4]
[4]Sentencing Act 1991
The sentence I impose in this case is cumulative on the sentence you are presently undergoing. That is by operation of the legislation, there being no exceptional circumstances demonstrated in this case.
Pursuant to s6AAA I indicate that, but for your plea of guilty, I would have imposed a total effective sentence of three years and nine months, with a minimum non‑parole period of two years and 11 months.
Were there some forfeiture orders in this? I think there were. I will make those.
MR WILSON: Yes, there were, Your Honour.
HIS HONOUR: All right. Did you get all that?
MR WILSON: I did, Your Honour.
MR WILSON: Thank you, Your Honour. Just in relation to the s15 operation which is the order of sentences, I believe Your Honour said that Mr Gao would serve a non‑parole period of two years first with respect to this.
HIS HONOUR: That's as I understand.
MR WILSON: Yes. Mr Gao isn't precluded from applying for parole on his current sentence again.
HIS HONOUR: No.
HIS HONOUR: And then he would be eligible for parole on the eight months and then the approximate year that he owes.
MR WILSON: That's correct. Yes, Your Honour.
HIS HONOUR: Do you agree with that, Ms Farrell?
MS FARRELL: Yes, I do. I think he would have to serve the non‑parole period first and then he would revert back to serving the two parole periods.
HIS HONOUR: Yes. So he would then become eligible for parole at the expiration of the minimum period.
MR WILSON: Yes.
HIS HONOUR: And the total amount of parole would be in the order of
20 months. Not exactly, but in the order of 20 months.
MR WILSON: Yes, Your Honour.
HIS HONOUR: Because he's got approximately a year to go now. And so I've given consideration to all of that in attempting to apply Bowen
as best as
I can. That's my understanding.
MR WILSON: Yes, Your Honour.
HIS HONOUR: All right. Nothing else?
MR WILSON: Just for the sentencing remarks, Your Honour, it doesn't affect anything, but the maximum penalty for Charge 1 is 25 years not 20.
HIS HONOUR: It's 25, right.
MR WILSON: Thank you.
HIS HONOUR: Right. Where I said 20 - I was correct the first time. I think I said 25 the first time and then I somehow had 20 the second time. So, in the revision I will make it 25. Do you agree with that, Ms Farrell?
MS FARRELL: Yes. The only matter, Your Honour, is there's one day of pre‑sentence detention.
MS FARRELL: His parole was cancelled the following day. He was arrested on the 8th and parole was cancelled on the 9th.
HIS HONOUR: Pursuant to s18 of the Sentencing Act I allow one day of pre‑sentence detention to be deducted from the sentence that I have imposed, and I will make that order.
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