Director of Public Prosecutions v Gao

[2020] VCC 866

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-02334

DIRECTOR OF PUBLIC PROSECUTIONS

v

YUAN GAO

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2020
DATE OF SENTENCE:	16 June 2020
CASE MAY BE CITED AS:	DPP v Gao
MEDIUM NEUTRAL CITATION:	[2020] VCC 866

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McCarthy (For Plea) Ms A. Birkin (For Sentence)	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Papa Hughes Lawyers PTY LTD

HER HONOUR: 

1Yuan Gao, you have pleaded guilty to the following:

·     one charge of handling stolen goods being an Audi A3;

·     one charge of making a false document, namely a driver's licence;

·     one charge of trafficking in a commercial quantity of methylamphetamine;

·     two charges of being in possession of drugs of dependence. 

2You have also pleaded guilty to five related summary charges:

·three charges of being in possession of proceeds of crime,

(Summary Charge 6) $3750;

(Summary Charge 8) a probationary driver's licence;

(Summary Charge 10) an American Express card;

·(Summary Charge 11) driving a motor vehicle knowing that you have been given a direction to stop;

·(Summary Charge 12) driving while disqualified. 

3The circumstances of your offending have been provided in the summary of prosecution opening.  I will provide a brief outline. 

4On 29 March 2019, an unknown person hired an Audi A3 through a website in the username of 'Amin.'  The booking authorised Amin to use the car for seven hours.  The following morning, the car had not been returned and the owner reported it stolen.  The car was fitted with a GPS device. Its location was accessed by Victoria Police members. 

5At approximately 9.25 am on 30 March 2019, the car was seen travelling at a slow speed in Fairlam Lane, Cheltenham.  Police attempted to stop the car by activating flashing red and blue lights on their vehicle.  You were in possession of the car (Charge 1).

6You were driving and reversed it back down the lane at speed, inadvertently wedging the car against a fence so that it was immobilised (Summary Charge 12).

7A police officer exited his vehicle and yelled at you to stop the car.  He attempted to open the locked driver's side door and observed that you were trying to move the car's gear selector into drive, while the engine was revving (Summary Charge 11).  You soon surrendered to police and were arrested.

8Police conducted a search of the vehicle.  Two large Ziploc bags containing a total of 271.7 grams of methylamphetamine, were located in a bag on the front passenger seat (Charge 3), along with $3550 in cash (Summary Charge 6), a set of digital scales with white powder residue and a plastic bottle that contained 30.7 grams of 1-4 Butanediol (Charge 4).  They also located a Victorian probationary driver's licence belonging to another person (Summary Charge 8).

9You were transported to the Moorabbin Police Station where you were searched.  Police found a driver's licence in the name of another person which had been altered by you by inserting your photograph into the licence, (Charge 2).  An American Express card in the same name was also found, (Summary Charge 10) and a further $200 (Summary Charge 6).

10Police then executed a search warrant at your home and a glass vial labelled, 'Tren x 100' containing 9.3 grams of a steroid, being a Trenbolene-derivative, was in a safe in your bedroom (Charge 5).

11The prosecution accepts that your possession of the steroids and the 1-4 Butanediol were for your own use.  I am satisfied that the possession of these drugs relates to a purpose other than trafficking and so a maximum of one year is the applicable penalty for each charge. 

12When you were interviewed by police, you largely exercised your right to silence, although you said that you had no idea how you had come into possession of the steroids, as you had not used the safe for two years.  You were remanded in custody and have now served 384 days of pre-sentence detention. 

13A commercial quantity of methylamphetamine in a mixed form is 250 grams.  The amount that you had in your possession exceeded that threshold by 21.7 grams.  The charge of trafficking in a commercial quantity of methylamphetamine arises from your possession of a commercial quantity of that drug.  You admit that you exercised custody and control over it.  You are the primary offender here and no-one else has been charged in this matter.  You were trafficking in order to satisfy your own addiction and to also obtain a financial profit. 

14You have pleaded guilty to offending on a single date, being 30 March 2019 which is of short duration.  The offence of trafficking in a commercial quantity of this substance is, however, an inherently serious charge. The harmful effects that flow from the distribution of methylamphetamine in our community are well known.  You admit that your moral culpability for the offending is high. 

15Your plea of guilty has been entered at an early opportunity.  The case was listed for a filing hearing on 1 April 2019. 

16In order to obtain an analysis of the drugs seized, your matter was booked in for a contested committal.  Those results were received on 16 September 2019.  You entered your plea of guilty on 21 November 2019 prior to the running of the committal.  That plea has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.  This is particularly relevant, given that no jury trials are currently proceeding in light of the current COVID-19 pandemic. 

17You have a lengthy and relevant criminal history in both the Children's Court and in the adult jurisdiction.  This is not the first time you have been incarcerated.  You have previously served a period of youth detention and several terms of imprisonment as part of various sentencing dispositions.

18Over the past seven years, you have been found guilty of trafficking in drugs of dependence on five occasions.  These offences have all been dealt within the summary jurisdiction. 

19You have been given opportunities to address rehabilitation in the community.  You received community correction orders in 2013 and 2014, both of which were breached. 

20On 9 January 2019, after spending 391 days on remand for unrelated offending, you were released on an 18 month drug treatment order from the Melbourne Magistrates' Court.  The purpose of that order includes the provision of judicially supervised, therapeutically oriented rehabilitation, in order to reduce the level of criminal activity associated with drug addiction.  These orders cannot be imposed without the agreement of the offender. 

21Regrettably, you lapsed into illicit drug use soon after your release from custody.  The current offences were committed less than three months after starting the drug treatment order.  This is an aggravating feature of your offending.  That order has now been cancelled.  The unexpired portion of 60 days of that sentence has been served since you have been remanded for these matters.

22You were 25 years old when you committed these offences.  Your age is a relevant consideration, even though it falls at the upper end of the range for a youthful offender. In light of the seriousness of this case and your criminal history, the mitigating effect of age and your relative youth is reduced.  It is not extinguished however.  These factors are still relevant when considering your prospects of rehabilitation.  Denunciation, general and specific deterrence must have greater emphasis however, as the seriousness of your offending increases. 

23You were born on 29 January 1994 and are now 26 years of age.  Your parents were present at the plea hearing.  You are not currently in a relationship, nor do you have any children.

24You were born in a small city near Shanghai, China.  Your family moved to Australia to give you the opportunity of a better life when you were nine years old, and you obtained Australian citizenship in 2005.  You have one younger sister who was born after your arrival here. 

25Your family's transition to life in Australia was difficult, due to language barriers.  Your father is a qualified Engineer, although he was unable to find employment commensurate with his level of education.  He studied English at Swinburne University and ran a small milk bar business.  Your mother was able to find employment.  Early on, your grandparents visited you in Australia.  A robbery was committed by offenders at the milk bar and your grandfather was attacked.  This event traumatised your whole family, the business was sold and your family moved, resulting in your changing schools. 

26You also moved between schools as you were bullied, which was destabilising.  You attended three different primary schools.  You commenced secondary school at the Hawthorn West Secondary College, then moved to the McKinnon Secondary College.  It was at around this time that you first used cannabis. 

27At the age of 17 years, you began to use a wider range of drugs, including Methylamphetamine and GHB.  You have struggled with drug addiction since that time.

28As a result of your drug use, your attendance at school was poor.  You again changed schools, moving to the Sandringham Secondary College.  You were not engaging well and left in Year 11. 

29When you were 20 years old, you attended RMIT and attempted to undertake VCE.  As a result of your drug use, you did not participate well in your course and did not complete that year. 

30You have never held a full time or permanent job, but have undertaken various forms of employment, including working at McDonalds, in a factory, as a labourer, as a kitchen hand and doing construction work.  You have otherwise been in receipt of Centrelink payments. 

31Since December 2017, you have spent less than three months in the community.  While in custody, you have regularly undertaken and completed both educational and vocational courses.  During your most recent time on remand, you have also worked as a compound billet, maintaining gardens and are now working as a unit billet seven days per week.  You have access to the gym and you attend whenever you are able, as exercise has assisted your mental health while you have been in custody.

32You are most fortunate to have the ongoing support of your family.  Until the current restrictions were imposed by Corrections, they visited you weekly.  You maintained regular contact with them by Skype. 

33Your mother, Ms Jingh Gao gave evidence on your plea.  She acknowledged the effect your criminal conduct has had on the community.  Your battle with drug addiction and your related behaviour has resulted in a long and heartbreaking experience for your parents and your conduct over the past few years has caused them anguish and concern. 

34They have, however, always supported you.  Your parents have observed that your level of maturity has increased recently and hope that upon your eventual release from custody, you will undergo drug treatment in a residential rehabilitation facility.  They believe that you require such assistance in order to overcome your lengthy addiction. 

35It appears that you have undertaken a period of self-reflection recently.  Your current goal is to successfully re-integrate into the community and remain drug-free. In a letter that you have written to the court, you acknowledge that your capacity to do so when released, is a critical factor to avoid reoffending.  You admit that your addiction to drugs from the age of 17 years has been a catalyst for your criminal behaviour.  You apologise for that and acknowledge the effect that your trafficking has had on others.  You say that you are ashamed that you have contributed to the drug problem in the community and you also acknowledge the heartbreak that you have caused your family. 

36Over the last 12 months in custody, you have studied and worked.  You have also provided 12 clean urine samples which confirm that you are not using drugs.  You have a role as a prisoner representative at Barwon Prison, which indicates that you are trusted by the prison authorities.

37Your family clearly supports your goal to establish a better life and will continue to do so in the future.  I accept that your drug use provides a context for your ongoing offending.  You acknowledge that successful rehabilitation is essential if you are to improve your prospects. 

38In your letter to the court, you have assumed responsibility for your criminal conduct.  You are aware of the consequences of your previous lifestyle choices and the effect of drug use.  I accept that you have shown remorse for your conduct and that this is consistent with your plea of guilty.  I am prepared to moderate your sentence to reflect that. 

39Your prospects for rehabilitation are, in my view, guarded.  In light of your past pattern of criminal behaviour, the ongoing nature of your drug addiction and the timing of these offences while subject to an intensive drug treatment program, I am unable to accept the submission made by your counsel in her written submissions that your prospects are good.

40Your addiction to illicit drugs is entrenched.  Your past attempts when in the community to overcome this addiction, have been challenged and unsuccessful.  While I accept that you intend to access and comply with appropriate treatment upon your release, I am cautious of your prospects.  Professional intervention is a critical element if your rehabilitation is to be successful.   

41A lengthy period of supervision provided by parole will form part of this sentence which will be of benefit to you and to the community. 

42Trafficking in a commercial quantity of a drug of dependence is a Category 2 offence, pursuant to s.5(2H) of the Sentencing Act 1991. The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment unless one or more criteria are established.

43Your counsel did not seek to persuade the court that any of those criteria could be applied in your case.  A term of imprisonment is the only appropriate disposition. 

44It is conceded that general deterrence, specific deterrence and protection of the community must be given significant weight in the sentencing process.  Punishment and denunciation will also be accorded prominence in the sentencing mix. While the principle of rehabilitation may no longer be the primary sentencing consideration in light of your history, it is still relevant. 

45At the request of your solicitor, Alison Mynard, clinical psychologist, provided a report for the court dated 22 April 2020. 

46In the course of her assessment Ms Mynard said that you appeared institutionalised.  You felt that a prison environment was normal after spending so much time in custody over the past few years. 

47She estimated that your intelligence level was average to high average.  She described you as being articulate, having a degree of insight into your life and your reasons for using illicit substances.  You reported moderate depressive symptoms in your conversation with Ms Mynard. 

48She said that at the time of your offending, your thinking was significantly impaired and focussed on obtaining money and drugs to maintain your addiction.  You have detoxified from your substance addiction in the custodial environment.  You rely on the prison environment to stop your drug use and change your behaviour, rather than relying on self-control.  You will live with your parents upon your release from custody. 

49In Ms Mynard's view, your disrupted educational years affected your social relationships and academic progress.  As you became older, you lost focus on your academic work and commenced smoking cannabis as an adolescent trying to fit into your peer group.  You rebelled against any control your parents imposed and became addicted to drugs, beginning to sell them to support your own habit.

50In Ms Mynard's opinion, it appears that this was the beginning of a cycle of your depressive symptoms, your increased drug use and your perception that you were a failure, as you had let your family down.

51She states that you are in a contemplative state of change, but are unclear as to your readiness for long-term change.  She believes that you will find it a challenge to change your lifestyle when back in the community.

52Ms Mynard went on to express the opinion that your ongoing substance addiction impaired your judgment at the time of this offending, causing more impulsive and less clear thinking conduct. Your drug addiction and underlying depression are both treatable, although they appear to have been a significant issue for many years.  If you can address your addiction, your risk of relapsing will decrease and subsequently your risk of reoffending will also reduce.  I accept these opinions.

53Ms Mynard recommends that you attend a drug rehabilitation facility in order to address your long-standing addiction upon your release.  She also believes that engagement with a psychologist to address underlying depressive illness would also be of assistance in the future.  It is in your interests to accept and to act upon her recommendations. 

54I take into account that measures taken by Corrections to deal with the
COVID-19 pandemic may add to your hardship as a prisoner, particularly as you are undergoing a lengthy term of imprisonment.  The prosecution concedes as much.

55I am aware that you have been in 12 hour lockdown at Barwon Prison since 21 March 2020.  I do not provide any specific sentencing benefit for this or for the possibility that this will continue.  As I understand it, when this occurs, you may receive sentence reductions as a result of the administrative decision of the prison authorities.

56It is clear, however, that the current time will be more stressful for you than it would be if you were in the community.  This is not only due to your personal position of confinement, but also the hardship you may feel being absent from your family at this difficult time.

57Further, the emotional impact of being unable to have any personal visits from your family for the foreseeable future, will increase the burden of imprisonment.  Educational and vocational programs have also been suspended indefinitely.  It is fortunate that you are still able to work and to access the gym.

58Drug trafficking is a scourge on our society.  I have referred to your criminal history.  Taking that into account with the current offence, you have now been found guilty of trafficking on six occasions.  The most recent offence is one of trafficking in a commercial quantity.

59This demonstrates an escalation in the seriousness of your offending.  Those who embark on the business of drug trafficking must expect to lose their liberty for extensive periods.  It is the only way that courts can discourage those who act in a way that is so harmful to our community. 

60I take into account the maximum penalties for each offence and current sentencing practices.  I have read and considered the relevant cases provided to me by the prosecutor in the course of his submissions. 

61The principle of totality needs to be considered overall and I have taken care not to doubly punish you for these offences.  I take into account the 60 day sentence that you have served for the cancellation of the drug treatment order.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct. 

62Balancing all the relevant factors as best I can, I sentence you as follows: 

63Charge 1 (handle stolen goods) you are convicted and sentenced to 15 months' imprisonment;

64Charge 2 (making a false document) convicted and sentenced to six months' imprisonment;

65Charge 3 (trafficking in a commercial quantity of Methylamphetamine) convicted and sentenced to four years and six months' imprisonment;

66Charge 4 (possession of 1-4 Butanediol) four months' imprisonment;

67Charge 5 (possession of Trenbolene steroid) two months' imprisonment;

68Summary Charge 6, being the proceeds of $3750, you are convicted and sentenced to six months' imprisonment;

69Summary charges 8 and 10 (possess proceeds of crime) on each charge, you are convicted and sentenced to three months' imprisonment;

70Summary Charge 11 (failing to stop on police direction) convicted and sentenced to fourteen days' imprisonment;

71Summary Charge 12 (driving while disqualified) convicted and sentenced to three months' imprisonment.

72I direct that the sentence for trafficking in a commercial quantity of Methylamphetamine of four years' and six months, be the base sentence.

73Two months for being in possession of proceeds, namely $3750, and four months for the charge of handle stolen goods, are to be cumulative upon the base sentence and upon each other. 

74The balance of the sentences are to be concurrent. 

75That is a total effective sentence of five years' imprisonment.

76I set a non-parole period of three years' imprisonment. 

77I enter in the records of the court that 384 days have been served as pre-sentence detention. 

78I make orders for disposal and forfeiture as requested. 

79The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, the total sentence I would have imposed is six years' and nine months' with a non-parole period of five years. 

80Ms Birkin, is there anything further?

81HER HONOUR:  If there is no objection, I will leave the Bench, excuse you and give Ms Byrt an opportunity to have a word to her client before the link expires.

82MS BIRKIN:  Certainly, Your Honour.

83HER HONOUR:  All right.  Ms Byrt, is there anything further?

84MS BYRT:  No, Your Honour. 

85HER HONOUR:  Thank you. I will leave the Bench, adjourn the court and excuse the prosecutor.

86MS BIRKIN:  As Your Honour pleases.

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