Director of Public Prosecutions v Guo
[2024] VCC 808
•3 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIANGTAO GUO |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2024 | |
DATE OF SENTENCE: | 3 June 2024 | |
CASE MAY BE CITED AS: | DPP v GUO | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 808 | |
REASONS FOR SENTENCE
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Subject: Trafficking in a drug of dependence (possession for sale)
Catchwords: Guilty plea – significant quantity of drugs – limited role and duration – below mid-range offending – first offender – good work history – gambling
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Berisha v The Queen [1999] VSCA 112; Lieu v The Queen (2016) 263 A Crim R 173; Placentino (2007) 15 VR 501.
Sentence: 319 days' imprisonment and 18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch | Office of the Director of Public Prosecutions |
| For the Accused | Ms K. Ballard | Stary Norton Halphen |
HIS HONOUR:
1Liangtao Guo, you have pleaded guilty to:
(a) one charge of trafficking in a drug of dependence, namely methylamphetamine; [1] and
(b) one charge of negligently dealing with proceeds of crime, namely $43,745 in cash. [2]
[1] Drugs, Poisons and Controlled Substances Act 1981 (Vic) section 71AC (1).
[2] Crimes Act 1958 (Vic), section 194 (4).
2The maximum penalty for the trafficking offence is 15 years’ imprisonment.
3The maximum penalty for the proceeds of crime offence is five years' imprisonment.
Circumstances of Offending
4The circumstances of your offending are set out in the prosecution opening.[3] They are agreed facts.
[3] Exhibit A: Summary of Prosecution Opening for Plea.
5On 19 July 2023, police executed a search warrant at a Mount Waverley address in an unrelated drug investigation.
6They found about 650 grams of methylamphetamine and about $13,000 in cash inside the house. They arrested one of the occupiers for commercial quantity drug trafficking.
7While police were searching the premises, you brought a cardboard box to the back door of the house.
8Police searched the box. It contained a Ziploc bag containing a substance.
9When analysed, the substance, which weighed 124.9 grams, contained methylamphetamine of 86% purity.
10The quantity of pure methylamphetamine was 104.7 grams.
11
Under Victorian law, a commercial quality of pure methylamphetamine is
50 grams.
12In the box there was also $15,380 in cash.
13Police arrested you and took you to Box Hill police station.
14When they questioned you, you said you were to be paid $150 to deliver the box.
15Initially, you gave an unlikely account of your knowledge of the contents of the box and the delivery arrangements.
16The investigating officer pressed you to tell the truth.
17You then said, 'I've just lost my job. I was only making the delivery to try to earn some money'.
18You said you saw 'the stuff', referring to the drugs in the box.
19You said you regretted making the delivery. You agreed you knew the box contained drugs and cash.
20You said, 'they are not mine'. The investigator responded, 'I understand that'.
21Police charged you with commercial quantity drug trafficking and you were remanded in custody.
22The next day, they searched your house where in your bedroom they found two amounts of cash, $9,900 on a shelf and $18,465 in a safe.
Chronology of Proceedings
23At a committal hearing, before any witnesses were called, you pleaded guilty to the charges now on the indictment.
Criminal History
24You have no criminal history.
Personal Circumstances
25You were born in November 1991. You were 31 years old when you offended.
26Your counsel, Ms Ballard, told me you were born in mainland China. You are an only child.
27Your father worked in government administration and your mother worked at a supermarket. You led an 'ordinary life' in a loving home. Neither of your parents have been in trouble with the law. They know you are in prison in Australia.
28You were not scholarly, and you went to a vocational technical school. When you left school, you trained as a hairdresser and eventually opened your own salon. When the salon fell into financial difficulty, you closed your business, and, in 2018, you emigrated to Australia seeking a fresh start. You arrived in Melbourne on a student visa and studied English at Clinton English at Melbourne.
29You found the schooling hard and left to find work. Since, you have worked in the construction industry as a plasterer, and also as a hairdresser.
30On your release from prison, your aim is to get a plastering apprenticeship and build your life here in Australia. You do not wish to return to China.
31You are not an Australian citizen. Your immigration status is unclear. You were granted a bridging visa when your student visa expired. You believe that your bridging visa is current. You fear, when you are sentenced, you could be deported.
32You have spent your remand time at a low security prison where you have undertaken English classes, three days a week. You are paid $6 a day to attend school. The income is important as you use it to make phone calls to your parents. You have also undertaken the vocational courses made available to you.
33You have no mental health or substance abuse issues which have required treatment in prison. However, because your English is limited, you have felt isolated.
Defence Submissions
34Ms Ballard, in comprehensive written [4] and oral submissions, acknowledged, given the significant quality of methylamphetamine in your possession, your offending was serious. However, in her submission, the quantity of the drugs should not overwhelm other sentencing considerations.
[4] Exhibit 1: Defence Submissions for Plea.
35She submitted, considering your limited role in the drug trafficking as a delivery person, your criminality is relatively low.
36In mitigation of penalty, Ms Ballard relied on:
(a) your guilty plea, for its utilitarian value and as evidence of remorse;
(b) your prior good character;
(c) the risk of deportation; and
(d) your isolation in prison.
37She submitted the time you have served is a sufficient custodial component of any sentence I should impose.
Prosecution submissions
38Mr Crouch, who appeared for the prosecution, submitted, because you were found in possession of a commercial quantity of methylamphetamine and a substantial amount of cash, your offending falls within the moderate range of objective seriousness.
39He submitted, because some of your responses were simply not credible, I should not accept any of the answers you gave to police. He submitted the appropriate sentence is the imposition of a term of imprisonment with a parole period fixed.
40On 19 July 2023, you were in possession of twice a commercial quantity of high-grade methylamphetamine which was capable of causing grave harm in the community. [5]
[5] See Berisha v The Queen [1999] VSCA 112, [33] and see Lieu v The Queen (2016) 263 A Crim R 173, [54].
41You knew the box, which you were delivering to a drug dealer, contained drugs and cash.
42The prosecution accepts it cannot prove you knew the drugs were at least a commercial quantity. It does not allege the drugs were yours.
43I accept your role in the trafficking episode, as a delivery person, was limited. I also accept it is likely you were to be paid $150 for your services.
44By your guilty plea, you admit the money was proceeds of crime.
45Because cash is the currency for drug sales, and you were mixing in a drug trafficking milieu, in the absence of any other explanation for the source of the money, it is a reasonable to conclude it was proceeds of other drug sales. However, when police searched your home, they did not find any drugs, scales, bags or other accoutrements of drug trafficking.
46Police had also seized two phones from you when they arrested you. There is no evidence before me of any drug trafficking data in the phones.
47The prosecution does not allege the money was yours. You are to be sentenced for your possession of it. You are not to be sentenced for knowing the cash was proceeds of other drug sales or being aware of a substantial risk it was. You are to be sentenced on the basis you were negligent, to the criminal standard, as to whether the money was proceeds of crime. [6]
[6] A person acts with "criminal negligence" if their act falls so far short of the standard of care a reasonable person would have exercised, and involved such a high risk, that it deserves criminal punishment.
48Notwithstanding the lower level of criminality of the offence, you were in possession of a substantial amount of cash.
49Both offences on the indictment are serious. In all the circumstances, on the scale of objective seriousness, I assess them to be below mid-range.
50Some custodial component to your sentence is required. However, there are factors which moderate the sentence and the type of sentence I will impose.
51Firstly, you are entitled to a sentencing benefit for your early guilty plea.
52Secondly, I accept, because of your limited English, prison has been harder for you.
53Thirdly, because you wish to remain in Australia upon your release from prison, I accept the risk of deportation has caused you some anxiety.
54Considering, you are a first offender and still a relatively young man, and you have taken the opportunities available to you in prison to improve yourself, I assess your prospects of rehabilitation as very good.
55However, there is a qualification to that assessment. You appear to have some difficulty in maintaining a truthful narrative in relation to your offending. You initially made false denials to police. When pressed to tell the truth, you admitted you knew the box contained drugs and cash.
56By your guilty plea to the trafficking charge, you have acknowledged you knew the box contained drugs.
57By your guilty plea to the proceeds of crime charge, you have acknowledged you were in possession of the cash in the box and at your home.
58On the face of it, your guilty pleas indicate remorse and acceptance of responsibility for your actions, which are protective factors for your rehabilitation.
59However, when you were assessed for your suitability for a Community Corrections Order, you told the assessing officer you did not know the box contained drugs and you denied any knowledge of the money found at your address.
60Your counsel told me there may have been some difficulties in interpretation and I am prepared to accept that may be so.
61Your counsel told me, notwithstanding the community corrections officer's record of your comments, you maintain your guilty pleas.
62While I am hopeful you can reform, you need to understand that an acceptance of responsibility for your actions is important to your rehabilitation.
63Overall, I am satisfied a composite sentence of a gaol term equivalent to the time you have served, with a Community Correction Order to assist you to continue your rehabilitation under supervision in the community, can meet all sentencing objectives in your case. [7]
[7] I must impose a sentence no more severe than is necessary to achieve the purposes of sentencing (Sentencing Act 1991 (Vic), section 5(3); Placentino (2007) 15 VR 501, [47]).
64In my view, supervision is a necessary component to your order.
65Considering, you told the community corrections officer you started using ketamine and methylamphetamine in 2013 and, in the lead up to your offending, you were using both substances, I will also include a drug assessment and treatment condition.
66Because the two offences for which you are to be sentenced are related offences, I will impose an aggregate sentence for them.
67Mr Guo, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
68Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of trafficking in a drug of dependence and negligently dealing with proceeds of crime, you are convicted and sentenced to 319 days' imprisonment in combination with a Community Correction Order.
69The duration of the order will be 18 months. A core condition of the order is:
(a) You must not commit any offence that is punishable by imprisonment during the term of your order. If you do, you will be liable to imprisonment for contravention of the order and to re-sentencing for the current offences;
(b) You must submit to visits as directed and comply with all instructions and directions of a community corrections officer. You cannot leave the State of Victoria without their prior permission;
(c) You must report to the community corrections service stated on your order within two working days of today; and
(d) You are required to advise your community corrections supervisor of any change of address where you are living or working, and you must do so within two clear working days.
70I will also impose two special conditions to your order, namely,
(a) Supervision; and
(b) Drug rehabilitation and treatment.
71I declare you have already served the prison component of your sentence, namely 319 days, by way of pre-sentence detention.
72While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to two years' imprisonment and fixed a minimum non-parole period of one year and three months.
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