Director of Public Prosecutions v Gao

[2021] VCC 1513

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00559 & CR-21-01061

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH) and DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

v

ZHENG WEI GAO

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2021
DATE OF SENTENCE:	6 October 2021
CASE MAY BE CITED AS:	DPP v Gao
MEDIUM NEUTRAL CITATION:	[2021] VCC 1513

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Guilty plea – State charges – Federal charges – Importation - Precursor – Trafficking commercial quantity – Drug of dependence – Imitation firearm – MDMA – Methylamphetamine – Butanediol – Prior offences – COVID – Serious offending.

Legislation Cited: Crimes Act (Cth).

Cases Cited: DPP v Zheng Wei Gao [2015] VCC 693 - DPP v Worboyes [2021] VSCA 169 - DPP v Chew [2021] VCC 871.

Sentence: State TES – 4 years and 10 months imprisonment, non-parole period of 3 years.

Federal TES – 6 years imprisonment, non-parole period of 3 and a half years. Sentence to commence 2 years prior to the completion of the non-parole period on the State sentence.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth DPP	Mr S. Moglia	Commonwealth Director of Public Prosecutions
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr D. Sala (Plea) Mr C. Nikakis (Sentence)	Haines & Polites Legal Practitioners

HIS HONOUR:

Introduction

1Zheng Wei Gao you pleaded guilty to a number of drug-related offences on two indictments. 

2On the Commonwealth indictment you have pleaded guilty to one charge of attempting to import a commercial quantity of a border-controlled precursor namely ephedrine contrary to the Criminal Code.

3On the State indictment you have pleaded guilty to one charge of trafficking in a drug of dependence commercial quantity methylamphetamine, one charge of trafficking in a drug of independence namely MDMA, one charge of possessing a drug dependence 1,4 butanediol, one charge of handling stolen goods, one charge of being a prohibited person in possession of an imitation firearm. You have also pleaded guilty to three summary charges, namely, committing an indictable offence whilst on bail, contravening a conduct condition of bail, and dealing with proceeds of crime, namely $250 cash. The maximum penalties for all the offences are set out in the respective prosecution openings and in the sentencing table accompanying these reasons.

Commonwealth offence

4The circumstances of the Commonwealth offence were set out in the prosecution opening which I incorporate by reference.[1] In brief outline in late August 2018 Federal police intercepted a DHL air cargo consignment from Hong Kong via Singapore to Melbourne which weighed about 15 kg and was described as cup sets and addressed to a named individual at a Box Hill address that was operating as a rooming house. It appears that this name was false, communications with DHL were via a phone number ending in 282 registered to a person who had left Australia in May 2018.

[1] Exhibit A on the Plea.

5When the package was examined by Border Force it was found to contain eight gift boxes containing wine glasses and a bottle opener. In the lining of the individual gift boxes was a brown substance later ascertained to be ephedrine. The substance was removed and the package sent on its way. On 27th August the consignee phone number 282 contacted DHL enquiring as to the arrival of the consignment. A recording of the call was found on an iPhone later seized from your car. DHL advised that the consignment was still being processed. On 29th August the consignee number again called DHL and was advised that the consignment was to be delivered likely on 30th August. On 30th August Border Force officers undertook surveillance at positions near the consignee address in Box Hill. A Border Force officer disguised as a DHL courier delivered the consignment to the address. The named person did not live there however there was a note that the consignment was to be left on the veranda.

6A short time later you were observed to drive your Toyota Camry vehicle to a location around the corner from the address. Another person was observed near a bus stop and the two of you walked together to the front of the address. You pointed out the address to the other person and the other person collected the consignment from the veranda, walked to your vehicle and placed it in the back seat and joined you in the vehicle. You drove away and dropped the other person off near the Box Hill shopping centre and drove to the top of the car park and then proceeded to unpack the consignment in the back seat, transferring the sets to the boot of the car. You were arrested soon after as you attempted to drive away from the scene.

7There, you were found in possession of $750 in cash. Further material was obtained following execution of a search warrant on your vehicle.

8Three telephones were found in your possession and upon analysis they contained material linking the user of the phones to the consignment.

9One of the phones also contained messages, led as background or context evidence, that were subsequently translated from Mandarin that evidenced your knowledge of the drug industry, including references to you obtaining raw material, contact with China, help with packaging and profits to be made. On the phone there were photographs of large sums of money, the consignment tracking information, and ticket information of a recent return trip to Sydney.

10Upon your arrest you told the police that you had used methylamphetamine that morning and had not slept for four days. You were not required to be interviewed, and subsequently you declined to be interviewed.

11The contents of the consignment were analysed and within the gift boxes a total of 4.422 kg of powder with a purity of approximately 63 per cent was found with a total weight of 2.728 kg of ephedrine.

12You were arrested and charged. Bail was granted on 13 December 2018 and on 21 March 2019, after a contested committal, you were committed for trial. Following the directions hearing the trial was to take place on 25 May 2020 but was vacated due to COVID.

13You were arrested on other drug charges to which I’m about to turn on
22 October 2020. On 24 February 2021 your bail was revoked on this matter. On 15 June after a directions hearing you were arraigned and pleaded guilty.

State indictment

14As indicated on 22 October 2020 you were arrested after police intercepted a vehicle in Doncaster. State police had been investigating you for drug trafficking. You were found in possession of four mobile phones (summary charge of breaching a conduct condition of bail – your bail condition was that you are only to have one mobile phone in your possession), you produced a paper with a glass pipe in it, advised the police that you had some amphetamines and an imitation pistol under the seat (Charge 5 of prohibited person in possession of an imitation pistol). Police located three bags of methylamphetamine in a black case and $250 cash (summary charge of dealing with the proceeds of crime). The total weight was 182.5 grams with a purity of 82-83%, thus 151 grams pure. This constitutes Charge 1 of trafficking in a commercial quantity of methylamphetamine. Police executed a search warrant on a property in Box Hill and there found 42.2 g of MDMA (ecstasy) 17 per cent purity (giving rise to Charge 2) and 179.7 g of butanediol (Charge 3, possession of butanediol). During the search various personal identity papers in the names of two different individuals were found and these are the subject of the charge of handling stolen goods (Charge 4), you declined to be interviewed.

15You were arrested, charged and remanded. You gave essentially a no comment record of interview. The matter was the subject of various committal mentions and resolved on 20 May 2021 and was referred to this court for plea.

Prior convictions

16Before turning to assess the seriousness of the various offences it is important to note your criminal record. You are now aged 36. At the time of the Federal offence you were aged 34. At the time of the State offence you were aged 35.

17Your criminal record commences in the Magistrates' Court on 6 February 2004 when on charges of attempted robbery, unlawful assault and extortion with threat to inflict injury you were placed on a 12 month community based order without conviction. Your next appearance was at the Ringwood Magistrates' Court on 20 August 2008 when on charges of possession of heroin, trafficking heroin and possessing a drug dependence you were sentenced to an aggregate sentence of 15 months' imprisonment. On charges of possessing a controlled weapon and having in your possession a false document you were sentenced to an aggregate sentence of 15 months' imprisonment. On the same day on traffic charges including failing to render assistance, failing to stop after an accident, driving while suspended, driving in a manner dangerous and driving under the influence of drugs, you were sentenced to 15 months' imprisonment. On 23 charges of obtaining property by deception, one charge of attempted obtaining property by deception, one charge of shop stealing, one charge of going equipped to steal, and one charge of failing to answer bail you were sentenced to an aggregate term of 15 months' imprisonment. All the sentences were to be concurrent and a non-parole period of eight months was set on each of them and 63 days declared as time served. Your next appearance was on two charges of theft on 17 September 2008 where you were sentenced to 3 months' imprisonment. That sentence ended on 20 September 2009. In November 2012 you committed an offence of burglary that was not dealt with until 13 December 2018.

18On 27 May 2015 you were before this court when on charges of false imprisonment and intentionally causing injury you were sentenced by Judge Pullen to an effective term of imprisonment of four years and four months imprisonment with a non-parole period of two years and two months, with 141 days declared as time served. This sentence ended on 1 May 2018. From the sentencing remarks of Her Honour Judge Pullen the offending occurred in the context of a drug milieu.[2] Her Honour records that you instructed your counsel that you were using ice on the date of the offending. Your next appearance was on 30 December 2018 when on the charge of burglary, committed in November 2012 you were sentenced to 6 months' imprisonment wholly suspended for a period of 12 months. You were also fined $1000 on charges of theft and failing to answer bail.

[2]DPP v Zheng Wei Gao [2015] VCC 693.

19On 21 April 2020 you were brought before the court for contravening the suspended sentence but no order was made, with a note that you had spent five months in onerous COVID custody.

20On 21 April 2020 on a charge of possessing cocaine, the charge was dismissed noting that you had spent five months in custody.

21All the matters I refer to amount to prior convictions before the Federal offence.

22On 21 December 2020 on a charge of possession of methamphetamine you were convicted and fined $1000.

23Your criminal record evidences that you have been sentenced to imprisonment on a number of occasions and have a number of prior convictions for drug-related offences, including trafficking and possession.

Assessing moral culpability and seriousness of the offences.

24In assessing your moral culpability for the Commonwealth offence it is important to note that at the time you committed the offence you had prior convictions for possessing and trafficking heroin from 2008, you had been sentenced for offences of violence that arose in the context of drug involvement, and had numerous other dishonesty convictions. You are not to be punished again for previous offending. Your prior convictions are however relevant to your moral culpability.

25With this background it is necessary to assess the seriousness of the Commonwealth offence. This was a significant amount of a precursor chemical that can be used to make a valuable illegal drug. As in many cases involving both importation and precursors, a full picture of the overall drug enterprise does not always emerge. What must be focused on is your involvement rather than the use of particular labels.

26Here you were intimately involved in the handling and receipt of the illegal consignment. The context material indicates knowledge of other persons within drug enterprises, and you were in a position where you were entrusted with the entire package by unknown principals, to have it delivered to an unknown manufacturer. As submitted by the prosecutor, Mr Moglia, you were familiar with the location of the illegal drugs within the package, and facilitated its delivery by the false name, use of the telephone number of a person who had left the country, the assistance of another unknown person, and making specific arrangements for the receipt of the package.

27These events occurred over a three-day period. The context evidence relied on by the prosecution indicates that you were well and truly knowledgeable of the drug world into which this particular consignment was to be passed. The actual consignment itself was 2.27 times a commercial quantity.

28The inference is available that you intended to import a significant quantity of a valuable precursor chemical that was readily able to be introduced into the manufacturing supply chain. The only inference available is that your motivation was to make money and you played a significant middle management role in this importation.

29Turning to the seriousness of the State offences, the first matter to note is that all of them were committed whilst you were on bail for the Federal offence. This is an aggravating matter.

30In relation to the first state charge, trafficking in a commercial quantity of methylamphetamine, the amount found in your possession ready to be trafficked was 182.5 g with a purity of 82 – 83%, being 151 g pure. This is three times a commercial quantity.

31You were also found with the accoutrements of a drug trafficker being four mobile phones, an imitation pistol and a quantity of cash. The possession of more than one mobile phone was, as I indicated, a breach of the bail condition following the Commonwealth charge.

32Further drugs were found at a property, the keys of which were in your possession. These give rise to Charges 2 and 3 being trafficking in MDMA and possession of 1,4 butanediol.

33The amount of MDMA found was relatively small being 42.2 g with a 17 per cent purity meaning the pure amount was 7 g which is 2.5 times a traffickable quantity.

34In relation to Charge 3 the amount is 18 per cent of a commercial quantity, again a relatively small amount. You were also found in possession of the stolen goods being personal items in the name of two people other than yourself.

35In assessing the seriousness of the two drug trafficking charges, Charges 1 and 2, you have prior convictions for trafficking and possession of drugs.

36Trafficking in methylamphetamine is a very serious offence. The drug itself is wreaking havoc throughout the community. You were found in possession of three times a commercial quantity. Given that there were three different drugs found and the quantities, the only inference is that you were in the business of trafficking and you could be described as a travelling drug salesman. Your moral culpability for the offending is high given your prior convictions and the fact that you were on bail at the time.

37On the plea there was dispute is whether you were in fact a drug addict at the time. The State prosecutor disputed that the Court could find this. I am prepared to infer that you were a drug addict given your prior convictions including the comments in the sentence by Judge Pullen in 2015 and what you told the police in 2018 when you arrested for the attempted importation.

38Drug addiction however provides no excuse for your conduct, nor in the present circumstances any amelioration in sentence.

39The quantities of drugs found in your possession makes it clear that you were an active drug trafficker, although the offending was, as conceded by the prosecutor, only on a single day.

40In relation to the possession of the imitation firearm, you were a prohibited person as a result of your prior imprisonment. You have a prior conviction for possession of a controlled weapon and this increases your moral culpability for this offence, although Mr Pickering, the State prosecutor, conceded that it was not used, it was just sitting underneath the seat.

Personal circumstances

41I turn now to your personal circumstances which are set out in the plea submission by your counsel, Mr Sala.[3] You are now aged 36 and were born in Shanghai, China. You came to Australia when you were aged 15 with your parents. Your father had managed a hotel in China but when he arrived he worked in the restaurant business and still does. Your mother has been working in childcare. After doing some English training, you were able to complete your VCE and commenced two university courses over a period of 18 months before dropping out. While you were studying you worked at night in your parents' business.

[3] Exhibit 1 on the Plea.

42You commenced using drugs when you were aged 21 and were introduced through a peer network. In 2006 you were introduced to heroin and became addicted. This then led to your criminality which is evidenced by your prior convictions.

43You have been abstinent from drugs in the past both whilst in custody and in the community. You have worked in 2011 as a guillotine operator but after two years you became unemployed and that is when you drifted back into criminality.

44On the plea it was put that your offending is intricately connected to your relapse into drug use and that your offending help to pay for your use of drugs.

45This cannot provide any excuse for your conduct and indeed, accepting that you were a drug addict, the size of the attempted shipment of ephedrine and the quantum of drugs found in your possession indicate that you were well and truly above the level of a person selling drugs to support a habit.

46In relation to your culpability for the Commonwealth offence or indeed for the State offences, I do not accept the submission that your decision making was impaired by your drug addiction or that this was amateurish. You had an active involvement in the importation, and the background and context evidence prior to the importation shows that you were fully immersed in the drug milieu which in my view does not support an impairment of judgment. You played a significant middle management role and were entrusted by unknown principals with a very valuable quantity of an essential input to a highly valuable and in demand illegal drug.

47Similarly, in relation to the State offences, your trafficking enterprise was above the level of a street dealer. I accept the evidence that there was no evidence of enrichment or high living, however, possession of three different types of drugs, an imitation firearm, and multiple mobile phones shows a sophisticated middle range operation. I accept the submission of your counsel however that you are to be sentenced for drug trafficking on a single day only.

Other matters in mitigation

48I take into account your plea of guilty on both presentments. That is evidence of remorse, however there is little other evidence.

49You are entitled to credit for facilitating the course of justice and avoiding the need for a trial. This is an important consideration in the COVID environment, and you are entitled to full benefit for your conduct in pleading guilty. The Court of Appeal has directed judges to provide a “perceptible amelioration in sentence” for those entering pleas in the present COVID environment and I will seek to do so.[4]

[4]DPP v Worboyes [2021] VSCA 169 at [39].

50In relation to the Commonwealth offence, this was not an early plea as the matter was the subject of a committal, however you still are entitled to credit for the plea that was entered after the committal. It has significant utilitarian value.

51In relation to the State indictment, the matter resolved early without the need for a committal and thus you are entitled to full benefit.

52There has been some delay in this matter due to COVID. Given your offending after release on bail on the Commonwealth matter, you have not used the delay to rehabilitate yourself and thus it cannot weigh in your favour however you have had these matters hanging over your head for a considerable period since your arrest on the State matter.

53I also note that you have been in custody now for nearly a year on the State matters. This was due to the COVID pandemic. Conditions in prison for remandees and prisoners are difficult, with visits restricted or non-existent and programs limited or again non-existent, as well as lockdowns. Thus, any period of imprisonment at the present time and indeed in the indeterminate future is more burdensome than in the past and that is a matter that I do take into account in your favour.

Prospects of rehabilitation

54Given your criminal record, particularly given that you have served a number of sentences of imprisonment, your prospects of rehabilitation must be regarded as very guarded, if not poor. They are clearly dependent on your ability to overcome your drug addiction. I note a clean urine sample has been provided whilst in prison. You have some work experience and have had periods of abstinence but it remains to be seen whether after a significant sentence of imprisonment you are able to become a law abiding member of society.

55On the plea your counsel accepted that considerations of specific deterrence have a role to play given your prior convictions.

Sentencing submissions

56The learned Commonwealth prosecutor, Mr Moglia, spoke to an extensive sentencing submission addressing the various matters that must be considered under the Crimes Act (Cth).

57I have considered all the various matters that he has raised. I do not need to address them individually as there was essentially no issue taken with them by your counsel.

58I accept the submission by Mr Moglia that general deterrence is a very important sentencing consideration in relation to importation offences. They are very difficult to detect and the relevant drugs are wreaking havoc in the community.  Stern sentences are warranted.

59The seriousness with which the legislature views the offence of attempted importation is evidenced by the maximum penalty of 25 years' imprisonment, which I must take into account along with the other matters set out in s16 of the Crimes Act (Cth).  

60In sentencing for this Federal offence, subjective matters carry less salience.

61An important sentencing consideration is current sentencing practices as evidenced by comparable sentencing cases.  Mr Moglia provided a table of comparable cases that could provide a yardstick for sentencing. Each case differs, based on the specific circumstances of the offending, whether it is a plea, and the antecedents of the offender.

62However,  the sentencing regime for drug offences is essentially quantity based and therefore comparable cases are of assistance in facilitating comparable sentencing across the Commonwealth.  In particular, they provide a range of sentences for particular quantities and types of drugs, in this case precursors. As Mr Moglia noted, sentences for these types of importations are often in the range of six to eight years' imprisonment.

63In his sentencing submissions Mr Pickering essentially adopted the submissions of Mr Moglia, and in particular the emphasis on general deterrence and denunciation and in your case, specific deterrence.  

64In relation to the State offences Mr Pickering helpfully provided a small number of cases for the offence of trafficking a commercial quantity of methamphetamine which again are of assistance in providing something of a range.

65In sentencing for Charge 1 on the State indictment, it is significant that the Court of Appeal has indicated that sentences for the higher range of offending for this offence, trafficking in a commercial quantity needed to be the subject of some uplift, with a consequence that across the whole range of cases for this offence, sentences must rise. I have taken this into account and it is referred to in the case of Chew.[5]

[5]DPP v Chew [2021] VCC 871.

66In sentencing for this State offence the maximum penalty is a very important consideration, as is the prevalence of this drug, namely methylamphetamine, in the community.

67On the plea your counsel emphasised issues of totality and cumulation between the two presentments. Thus, he submitted that any sentence over the two presentments must not be crushing.  In crafting a sentence, I have sought to address all the submissions made on your behalf and I take them into account, and in particular the burden of imprisonment in the COVID environment and in a sense to reward you for facilitating the course of justice in the COVID environment by entering a plea of guilty.

Purpose of Sentencing

68The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in ensuring that, as far as possible, offenders are rehabilitated and reintegrated into society.

69As I have indicated, in sentencing for serious drug offences, general deterrence and denunciation are very important considerations. A signal must be sent to those who are minded to engage in any part of the system of manufacturing and distribution of drugs that when apprehended they will face heavy penalties. This is an economic crime which is wreaking havoc in the community. Drug importations are very difficult to detect and those involved who are apprehended must be sentenced to heavy penalties. Your conduct in facilitating this importation must be utterly condemned. Similarly, your involvement in possessing a significant quantity of methylamphetamine when apprehended in October last year calls for a sentence that deters you and other likeminded persons who seek to engage in and benefit from the drug trade.

70As you committed the later offending whilst on bail for the Commonwealth charge, considerations of specific deterrence are also very important.

71Given your prior convictions your prospects of rehabilitation are not good and thus protection of the community is a sentencing consideration in the synthesis.

72Weighing all the competing considerations and taking into account all the submissions made on your behalf I sentence you as follows.

Sentence

73On the State indictment on Charge 1, trafficking in a drug of dependence, commercial quantity, you are sentenced to four and a half years' imprisonment.  That's the base sentence.

74On Charge 2, trafficking a drug of dependence, MDMA, you are sentenced to four months' imprisonment.

75On Charge 3, possession of a drug of dependence, butanediol, you are sentenced to three months' imprisonment.

76On Charge 4, handling stolen goods, you are sentenced to six month's imprisonment.

77On Charge 5, prohibited person possessing an imitation firearm, you are sentenced to 12 months' imprisonment.

78On the summary charge of committing an indictable offence on bail, you are sentenced to one month imprisonment.

79On the second summary charge of contravening a conduct of condition of bail, namely having the mobile phones, you are sentenced to one month imprisonment.

80On the third summary charge of dealing with property suspected of being proceeds of crime, namely $250 cash, you are sentenced to seven days' imprisonment.

81Charge 1 is the base sentence and I direct that one month of the sentence on Charge 2 and three months of the sentence on Charge 5 be served cumulatively on each other and on the base sentence.  All other sentences are concurrent making a total effective sentence of four years and ten months' imprisonment.

82I order a non-parole period of three years and I declare pre-sentence detention of 348 days on the State indictment.

83Turning to the Commonwealth presentment, on the charge of attempting to import a commercial quantity of a border-controlled precursor you are sentenced to six years' imprisonment.  I order a non-parole period of three and a half years on the Commonwealth offence.  I declare pre-sentence detention of 105 days and I order that the Commonwealth sentence commences two years prior to the completion of the non-parole period on the State sentence.  So, there is to be some concurrency between the two sentences, effectively two and a half years of concurrency.

84I declare that had you not pleaded guilty to both presentments, I would have sentenced you to 11 years' imprisonment with a non-parole period of seven years and seven months.

85Mr Gao, I have got to explain the sentence to you.  It's a bit complicated because there is two different presentments or charges under State law and under Federal law.  Now, under the State charges of trafficking a commercial quantity and the other charges I have sentenced you to a total effective sentence of four years and ten months' imprisonment.  I have ordered that there be a non-parole period of three years on that and I have declared you have already served 348 days.

86Then on the Federal offence which is the attempted importation I have sentenced you to six years imprisonment but I have ordered that this sentence commence two years prior to the completion of your non-parole period on the State sentence so there is a running parallel on the two sentences.  I have ordered a non-parole period on the Federal offence of three and a half years' imprisonment and declared you have already served 105 days.

87So, two years prior to the completion of your non-parole period on the State sentence you commence the Federal sentence and after you have served three and a half years of that you will be eligible for parole subject to reductions of the sentences you have already served. 

88I declare that had you not pleaded guilty on an aggregate basis I would have sentenced you to 11 years imprisonment with a non-parole period of seven years and seven months. 

89There is a disposal order I think on Charge 1, Mr Pickering?

90MR PICKERING:  Yes, Your Honour.

91HIS HONOUR:  Right, well I will make that disposal order.  Was there any other orders from the point of view of the Commonwealth?

92MR MOGLIA:  No, Your Honour, there was a consent forfeiture and disposal.

93MR NIKAKIS:  I signed it on behalf of my client and emailed it back to Mr Moglia's instructor this morning.

94MR MOGLIA:  Thank you, Your Honour need take no action then.

95HIS HONOUR:  All right, any other matters from your point of view,
Mr Pickering?

96MR PICKERING:  Yes, Your Honour, I've been reminded that there was also a forfeiture order with regard to the cash that was seized?  That's the one represented by Charge 12, the summary offence.

97HIS HONOUR:  Right, well I will make that order.

98HIS HONOUR:  Gentlemen, I want to thank each of you and also Mr Gao's counsel for his plea and I'll make those orders in chambers so we will adjourn the Court.

99COUNSEL:  As Your Honour pleases.

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