Director of Public Prosecutions v Guan

[2020] VCC 1494

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02329

DIRECTOR OF PUBLIC PROSECUTIONS

v

XIAO GUAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2020
DATE OF SENTENCE:	17 September 2020
CASE MAY BE CITED AS:	DPP v GUAN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1494

REASONS FOR SENTENCE
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Subject: Criminal law - sentence        

Catchwords: pleas of guilty to one charge of trafficking in a large commercial quantity of ephedrine and one charge of trafficking in a commercial quantity of methylamphetamine – role below mid-level – burden of imprisonment – certainty of deportation – shame in being deported – parity with co-offender Heng.

Cases Cited:DPP v Condo [2019] VSCA 181; Verdins v R [2007] VSCA 102

Sentence: 7 years with non-parole period of 5 years.         

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Regan	OPP
For the Accused	Mr Z. Zayler	Melasecca Kelly & Zayler

HER HONOUR:

(Due to time restraints and problems with the webex connection to the prison, the imprisonment orders were announced first followed by the sentencing remarks).

1For Charge 1, you are sentenced to six years and six months' imprisonment. 

2HER HONOUR:  Have you interpreted that, Mr Interpreter?

3(Discussion with interpreter)

4HER HONOUR:  I will repeat it. 

5For Charge 1, you are sentenced to six years and six months' imprisonment. 

For Charge 2, you are sentenced to four years' imprisonment. 

One year of the second sentence is to be served in cumulation upon the first, resulting in a total effective sentence of seven years and six months.

I fix a period of five years to be served before you will be eligible for parole. 

If you had pleaded not guilty to these charges, I would have sentenced you to nine years and six months imprisonment, with a non-parole period of seven years.

I note that you have already served 666 days in custody.  That will be noted on the court record, to be reckoned as already served.

6Thank you, Mr Interpreter.  I am now going to go to the beginning of the document.  I am reading from paragraph 1.

7INTERPRETER:  I will probably just get myself muted, and then interpret while you are speaking.  So, I can interprete for Mr Guan simultaneously, because I have got the transcript.

8HER HONOUR:  Xiao Guan, you have pleaded guilty to two charges of trafficking in a drug of dependence, one of which involved a large commercial quantity of ephedrine and the other, a commercial quantity of methylamphetamine. 

9Overall, the offending occurred between 11 August and 21 November 2018. 
At the time, you were a Chinese citizen living in Melbourne unlawfully as your visa had expired.  You were unemployed and trafficking in drugs regularly to support your lifestyle, including providing drugs for your personal use.  
You were living with your girlfriend in Doncaster.

10What follows is an abbreviated summary of your offending, with more extensive detail to be found in the prosecution summary dated 19 August 2020 and filed with the court.

11A police operation with undercover operatives, using surveillance and telephone intercepts disclosed the offending.  You were involved with one
Peiwen Xiao, in a large scale trafficking business from mid-2018.  Telephone intercepts establish that there was a profit splitting collaboration and partnership between the two of you.

12     Xiao was in frequent contact with Nick Jiang, whom I sentenced on 7 May this year, for similar but less serious charges than those to which you have pleaded guilty.  Xiao is yet to be dealt with.  The investigators established that Jiang was supplying methylamphetamine and cocaine to Xiao and to you.

13On 7 May this year, I also sentenced Jack Wee Heng for drug trafficking charges.  The investigation disclosed that Heng was supplying ephedrine or pseudoephedrine to you, which you passed on to Xiao. 

14The circumstances of Charge 2 are chronologically first in time.  There were two transactions.  The first was on 14 August 2018, when the undercover operative, “Sammy”, asked Xiao to supply him with two ounces of methamphetamine.  Xiao called you and negotiations took place between you and Jiang, and then with Xiao.  A meeting was arranged for the transaction, which took place on 15 August.  You supplied 28.1 grams of methylamphetamine, for which you received $3700 cash.  The drug was analysed to be 81 per cent pure, the pure weight being 22.761 grams.

15The second transaction was on 23 August.  Following an arrangement you had made with “Sammy” the previous day, you met him and gave him 2 ounces of methylamphetamine in exchange for $7500.  You told him that you had a kilogram of it to sell for $35,000, and that you and Xiao were partners.  You told him to contact either of you to organise further purchases.

16The drugs sold that day by you were analysed later and found to be 55.9 grams of methylamphetamine at 82 per cent purity with a pure weight of 45.28 grams.

17Police monitoring of your phone continued until 21 November, with the general character of the calls being drug talk.  Police were able to establish from the calls that Jiang was supplying methylamphetamine and cocaine to you and Xiao.  Heng was supplying ephedrine and pseudoephedrine to you, which you then supplied to Xiao.

18Charge 1 is made up of four transactions.

Transaction 1

19On Thursday 30 August 2018, you met with “Sammy”, following an arrangement made by Xiao and gave him a sample of pseudoephedrine, saying that the purity should be about 80 per cent.  You told him the price was $35,000 a kilogram.  The sample was analysed later that day and found to be 10.6 grams of ephedrine with a purity of 81 per cent, resulting in a pure weight of 8.58 grams.

Transaction 2 

20On Tuesday 2 September 2018, Xiao made arrangements with “Sammy” for a transaction to supply a kilogram of pseudoephedrine for $35,000.  It was to take place the next day, Wednesday 3 September 2018.  Xiao arranged for the two of you to meet “Sammy” that day.  Xiao met “Sammy” first and ascertained that he had the money, and then “Sammy” drove Xiao to Southbank to meet you.  

21You had arrived at the carpark in Southbank about an hour earlier, and you were later observed on CCTV footage obtaining this substance in a box from Heng.  At that location, you handed to “Sammy” a box containing one kilogram of ephedrine in exchange for $35,000 cash.  The substance in the box was analysed, and found to be ephedrine weighing 998.7 grams, with approximate purity of 81 per cent.  Therefore, the pure weight was 800.847 grams.

Transaction 3 

22On Tuesday 16 October 2018, operative “Sammy” asked Xiao if he and you could supply him with one kilogram of pseudoephedrine.  This followed discussions on 5 September between Xiao and you about splitting profits.  On 16 October, you and Xiao discussed arrangements, following which Xiao collected you in his car and drove you to an address in Elizabeth Street.  You went into an apartment building and returned soon afterwards, carrying a cardboard bag.  You then met “Sammy” a short distance away and handed him the bag which contained one kilogram of pseudoephedrine and received a plastic bag containing $35,000 in return.

23The substance was analysed as ephedrine weighing 993.1 grams, with a purity of 52 per cent, the pure weight being 516.412 grams. 

24CCTV footage obtained later showed Heng taking items to Level 54 of the same apartment building, and you going to the same level an hour later, then leaving carrying the box later found to contain the drugs.  You were seen about half an hour after that, carrying the plastic bag of cash to Level 54 and then leaving empty-handed.

Transaction 4

25On Wednesday 21 November 2018, you and Xiao exchanged many calls at the conclusion of which you confirmed that you had, 'got it' and agreed to meet.  You were intercepted by police, and in your car, they found four packages of ephedrine, a total of 1295.65 grams pure.  You were arrested, and at your home, police found various items including cash of $11,120 and a false passport.  You told police the cash was the proceeds of selling a BMW car.  You denied ever having sold or used drugs and denied knowing “Sammy” and the nicknames used by Xiao and Heng.  You denied being a business partner of Xiao.

26The total amount of drugs trafficked over these transactions was 2621.49 grams of pure ephedrine and 68.599 grams of pure methylamphetamine.  The ephedrine transactions of 3 September and 16 October and the seizure of
21 November all exceed the large commercial quantity threshold individually.

27The seriousness of the offending is clearly indicated by the maximum sentences determined by the legislature, given that the maximum penalty for the first offence is life imprisonment and for the second offence, 25 years' imprisonment.  Additionally, the standard sentencing regime applies to Charge 1, the standard sentence being 16 years.  You are also to be sentenced as a serious drug offender, under the legislation.

28A large commercial quantity of ephedrine is 750 grams pure with the quantity involved in this case, being 3.49 times the threshold.  A commercial quantity of methylamphetamine is 50 grams pure, the quantity here being just over that amount.

29Your role was described by Mr Morrissey, who represented you on the plea, as being, 'hands on, risk taking, and modestly rewarded', and it persisted for just under three months.  You were not the organiser or the boss, nor even a partner, he submitted, but a courier and intermediary.  This is in contrast to the role of Xiao, who appears to have been the organiser over a long period of time; a small time trafficker, trying to maximise profits, with Jiang being the chief supplier to Xiao, and Heng a supplier as well.  You, on the other hand, it was submitted, did not have access to large amounts of drugs or large sums of money.

30This scenario has you and Xiao at the bottom of the hierarchy, and you were the one who seems to have received the less reward, and to have been involved for the shortest period of time.  This picture was refuted by Mr Regan, for the prosecution, on the basis that you described yourself in a phone call as being at a high level in the hierarchy, and you were trying to build up the business.  He submitted that you were trafficking at a significant level, a position which
Mr Morrissey described as an overstatement of the role and of its gravity.

31As to current sentencing practice, Mr Regan referred me to the sentence of

[1] [2019]VSCA 181

DPP v Condo[1], where a Director's appeal resulted in a greater sentence for trafficking, but where the offender was a senior member of a syndicate, dealing with significant quantities over six months.  I note that it was estimated in that case that the quantities would have been at the very top of the threshold for a commercial quantity, just below the level for a large commercial quantity.

32Even though it could be said that there are some similarities as between that case and this, it remains for me to consider your role as precisely as possible, and to sentence you taking into account other matters to which I shall return.

33The content of the intercepted telephone calls taken from the transcripts generally reflect your role as being at a lower level than that of Xiao.  Examples are that he would question you as to your activities, he suggested that he would supervise you if you worked together, and he suggested going to Sydney, to buy drugs closer to the source.  He took a greater cut from the profits than you.

34A useful guide to determine your role is to contrast it with that of Heng, who was a supplier at a relatively higher level, but whom I sentenced as a trafficker below mid-level, taking into account a combination of matters.  You were useful to “Sammy” and Xiao, because Xiao had fallen out with Heng's associate, and in this way, you assisted Xiao whose role was plainly at a higher level than yours.  Accordingly, my conclusion is that your role is below that mid-level point, and the other matters I must consider will reduce it further. 

Personal background and circumstances

35You are now aged 30, born in China, the only child of your parents who are respected public servants.  You came to Australia in 2010 on a 12 month language learning visa, which was extended to a student visa until 2015.  You studied a commerce degree at Deakin University, but you struggled because of poor English and financial difficulties. You transferred to another institution, but ceased studying in 2015, and you were unable to obtain a further visa.  You were depressed and did not tell your parents that you no longer had a visa.

36You then obtained paid work in construction and in hospitality, and also began using cannabis, cocaine, and alcohol.  Your parents sent you $45,000 to invest in a restaurant business, but your intended business partner left the country with the money. Your drug use increased, and you came under the influence of Peiwen Xiao.  You told Mr Cummins, the psychologist who assessed you, that you worked like a courier for him. 

37Mr Cummins reported that he considered your language difficulties were more fundamental than lack of English, and that this together with apparent immaturity, and the struggles you had with academic work, suggested only average intelligence or slightly below average. He thought you are moderately depressed and anxious, and have developed an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct as a result of your difficulties over the past few years, your experience on remand, and pleading guilty to very serious drug charges which will see you deported to China and having to face your parents and extended family, fearing that they might suffer as a result of your criminality in Australia.

38It was this aspect of your certain deportation that was the subject of a submission that the prospect of being deported in disgrace and having to face your family would increase the burden of imprisonment for you.  I note that your father, uncle, and friends of your father have written letters to the court in support of you, emphasising this is your first offence, that you regret what you did, and that they consider you redeemable.

39While in custody during 2018 and 2019 you completed courses dealing with drug and alcohol abuse, and you have remained drug-free.  You have also achieved several vocational certificates.  Otherwise your time on remand has been lonely with no visitors since the woman to whom you had been engaged to be married ended the relationship which has been a cause of grief for you.

40The conditions of the COVID-19 crisis have exacerbated the conditions on remand, including the cessation of courses and programs, which provided your only regular human contact, although, when allowed out of your cell during the present restrictions, you are permitted to do some work.  These privations warrant some clemency, as Mr Morrissey submitted, and when considered together with the application of Verdins[2] limbs 5 and 6, some reduction in your sentence is warranted.

[2] [2007] VSCA 102

41Your rehabilitation is underway in custody, and the fact that you have no previous convictions suggests you will succeed when you return to China.

42You pleaded guilty in circumstances where you could have contested the allegations, and your plea has value for that, as well as being an indication of remorse, despite an absence of real insight.  Mr Cummins, who assessed you in April, concluded that you, 'appear to be overwhelmed with feelings of shame, guilt, embarrassment, and regret' [3] over your offending.  Other than the plea itself, that is the only suggestion of regret, and it seems to exist in the context of your shame at having to explain yourself to your parents, and eventually return to China without having achieved any of your goals in coming to Australia. Accordingly, I cannot place a great deal of weight on any remorse there might be.  A discount on your sentence is nonetheless justified by the utilitarian value of your plea, and an element of remorse to some small degree.

[3] Report of Mr Jeffrey Cummins dated 28 April 2020 [37]

43You have been in custody since your arrest on 21 November 2018, a period of one year and 10 months, or 666 days.  That is a considerable, although not unusual delay, and it deserves some weight as a mitigating factor, particularly given the pandemic conditions of the past few months whilst on remand. 

44In any serious drug-trafficking case, the need for general deterrence is the paramount purpose in sentencing, and specific deterrence with its punitive elements, often features highly as well. The distribution of drugs, such as methylamphetamine, has the potential for enormous harm in the community, and this must be reflected as far as possible in the sentence imposed, with the commensurate denunciation by the court. 

45While the prosecution submission was that the amounts of drugs involved made it a serious case and that was conceded, Mr Morrissey submitted that the amounts trafficked were relatively low, in that higher quantities are seen in many other cases.  That is true, in relation to Charge 2, less so in relation to
Charge 1. Mr Morrissey submitted that the combination of disasters in your life since you came to Australia, together with the greater than usual burden of imprisonment and the more positive factors relevant to your present circumstances, should result in some mercy, and at least justify a non-parole period which might see you released and deported earlier.  The prosecution responded that those minor catastrophes should not contribute to a need for clemency.

46As to parity, Heng was sentenced to a total effective sentence of 10 years and eight months, with a non-parole period of six years.  For the trafficking charge, he was sentenced to nine years imprisonment.  His offending was more serious; as I have already indicated, he was a supplier rather than a courier.  He had had a drug addiction for some years but his prospects for rehabilitation were considered good.  Heng's sentence is a useful yardstick and carries some weight.  Peiwen Xiao is still awaiting trial. 

The rest of what I have to say is the actual sentence itself, which I have already stated.

47There was a pecuniary penalty order sought by the prosecution, I think that was for $81,200, Mr Regan.

48MR REGAN:  Yes, Your Honour.

49HER HONOUR:  But that was not opposed.  There are also orders for forfeiture and disposal, again, not opposed.  I will make those orders. 

50Mr Regan, is there anything further that I omitted or neglected?

51MR REGAN:  No, Your Honour.  The three orders - yes, the forfeiture, disposal, and pecuniary penalty order, so they appear to be correct. 

666 days is the pre-sentence detention - everything seems to be in order, Your Honour. 

I note that the interpreter has been provided with the copy of the remarks, so I take it that you will be revising those remarks for the point that you just mentioned.  When will they be available to the parties, Your Honour?

52HER HONOUR:  Almost immediately, Mr Regan.

53MR REGAN:  All right.  Thank you, Your Honour.

54HER HONOUR:  If not today, then tomorrow.

55MR REGAN:  All right.  May it please the court.

56HER HONOUR:  Mr Zayler, is there anything else you want to say?

57MR ZAYLER:  No, Your Honour.  No.

58HER HONOUR:  All right.  Thank you.  Mr Interpreter, thank you very much for assisting us this afternoon.

59INTERPRETER:  Thank you, Your Honour.  I haven't actually finished every single paragraph, so I will finish every single paragraph when I get outside from this meeting.  Thank you.

60HER HONOUR:  All right.  I will leave the Bench now, but I will leave all these links open for the moment.  So, that if you do wish to continue talking to
Mr Guan, you can do that.

61INTERPRETER:  Yes.

62HER HONOUR:  And similarly, if Mr Zayler wants to join in, he is free to do so.

63INTERPRETER:  So, I will interpret for Mr Morrissey, and also Mr Regan, for Mr Guan.  Thank you.

64HER HONOUR:  Thank you.

65MR REGAN:   May I disengage now, Your Honour, to allow Mr Zayler be present when his client is being read the final part of the remarks? 

66MR ZAYLER:  He wants to leave the meeting, Your Honour.

67MR REGAN:  Yes, can I leave, subject to being rung by your associate ‑ ‑ ‑

68HER HONOUR:  Yes, you can leave the meeting.  Certainly, that is fine.  I will too.

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