Director of Public Prosecutions v Hu
[2023] VCC 1501
•25 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHEQI HU |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2023 | |
DATE OF SENTENCE: | 25 August 2023 | |
CASE MAY BE CITED AS: | DPP v Hu | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1501 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Trafficking in a drug of dependence – Possession of child abuse material – Handling stolen goods – Possession of identification information – Commit indictable offence whilst on bail – Trafficking of a commercial quantity in 1, 4-Butanediol limited to a single act and of short duration and no financial reward – Evidence of commercial trafficking based on the admissions of the accused – Good prospects of rehabilitation – Early plea of guilty – Genuine remorse – Youthful offender with a lack of prior history.
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Bail Act 1977; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Gregory (a pseudonym) v R (2017) 268 A Crim R 1; DPP (Cth) v D’Alessandro (2010) 26 VR 477; DPP (Cth) and DPP v Garside [2016] VSCA 74
Sentence: 3 years and 3 months’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Cookson | Office of Public Prosecutions |
| For the Accused | Mr J Gullaci SC (20 Jul 2023) Mr C Nikakis (25 Aug 2023) | Haines & Polites Lawyers |
HIS HONOUR:
1Zheqi Hu, you have pleaded guilty to the following four charges on Indictment No. N10282116:
(i)Charge 1 – trafficking in a drug of dependence – commercial quantity, namely 1,4-Butanediol contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981.
(ii)Charge 2 – handling stolen goods, contrary to s 88 of the Crimes Act 1958.
(iii)Charge 3 – possession of identification information, contrary to s 192C(1) of the Crimes Act.
(iv)Charge 4 – possession of child abuse material, contrary to s 51G(1) of the Crimes Act.
2Charge 1 is a Category 2 offence[1] and carries a maximum penalty of 25 years’ imprisonment. Charge 2 carries a maximum penalty of 15 years’ imprisonment, Charge 3 carries a maximum penalty of 3 years’ imprisonment, and Charge 4 carries a maximum penalty of 10 years’ imprisonment.
[1]Sentencing Act 1991, s5(2)(H).
3You also consented to this Court hearing and pleaded guilty to two related summary offences of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Charges 2 and 7). This offence carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
Circumstances of the offending
4At the time of the offending, you were 24 years of age and were residing in an apartment on Abeckett Street in Melbourne. You were on a student visa.
5Your arrest took place as part of an investigation by the Victoria Police Major Drug Squad. The investigation focused on the activities of Boon Lye (‘Lye’) and Tess Rowlatt (‘Rowlatt’). Lye is alleged to have been a supplier of 1,4 Butanediol to Rowlatt during the COVID-19 lockdowns.
6Lye and Nyet Wee (‘Wee’) were living in an apartment in Southbank. This property was searched by police following the execution of search warrants on 7 December 2021 in connection with allegations against Lye and Wee.[2]
[2]See sentencing reasons in DPP v Wee [2023] VCC 1409.
7CCTV obtained from the Southbank Apartment contained footage of you.
8On 30 November 2021 at 11:29am, you exited the Southbank apartment in possession of a 10-litre blue plastic carboy. You entered the lift on the 46th floor and proceeded to the ground floor. You then exited the building and placed the blue plastic carboy in the front passenger footwell of a vehicle, which then drove away. These actions were caught on CCTV.
9You later admitted to the police that the contents of the carboy contained drugs of dependence, which you were taking to a vehicle. You admitted that the carboy contained 10 litres of drugs of dependence and that you were aware that Jack was going to sell its contents. The drug of dependence was identified as 1,4 Butanediol and Jack has been identified as Lye.
10Ten litres of liquid weighs around 10 kilograms (kg). The commercial quantity for 1,4 Butanediol is 2kg, and large commercial quantity is 20kg. (Charge 1 – Traffick Commercial Quantity)
11On 10 February 2022 at around 1:15pm investigators attached to the Victorian Police Major Drug Squad executed a search warrant at the Abeckett Street Apartment. You opened the front door.
12Following a search, the following items were located:
(a) eight mobile phones;
(b) four SIM cards;
(c) one Gold USB Drive;
(d) one Pink/Black Nuoio Hard Drive;
(e) a MyState Bank Card in the name of Ping WONG and a Westpac Bank Card in the name of Zhixin ZHANG; (Charge 2 - Handle Stolen Goods)
(f) a driver’s licence and Medicare card in the name of Sandra DUONG. (Charge 3 – Possession of Identification Information)
13During the search, you disclosed to Detective Acting Sgt Davies that you were in possession of child abuse material located on a hard drive in the lounge room of the apartment.
14The lounge room was searched and multiple hard drives, laptops, sim cards and further phones were located.
15As a result of your admissions, an analysis was undertaken of the relevant hard drive. Child abuse material was located on the hard drive and a report was compiled by police. The images were categorised into one of four categories.[3]
[3]Category one involves images depicting a real prepubescent child involved in a sex act, witnessing a sex act, or involves material focussed/concentrated on the anal or genital region of the child;
Category two involves persons who appear to be or are implied to be a child, as a victim of torture, cruelty or abuse, sexual abuse, in the presence of another person who is engaged in sexual activity or poses, is exposing the genital area or anal region of a person who is or appear or is implied to be a child, the breasts area of a person who is or who appears or is implied to be a female child, which a reasonable person would regard as being, in all the circumstances offensive;
Category three relates to material that is not child abuse material or illegal, though it may be of interest from an investigative position;
Category Four material that is not illegal.
16The hard drive was found to contain 81,785 files. It is noted that only category one and category two images form part of the definition of child abuse material. There were 745 images and 353 videos falling in category one, and 524 images and 77 videos falling in category two. (Charge 4 – Knowingly Possess Child Abuse Material)
17The videos contained acts of vaginal and anal penetration as well as fellatio. The predominant gender of the victims was female, and the predominant gender of the offenders was male. The age of those being abused ranged from three to around nine years of age. The videos ran from under a minute to 23 minutes in length.
18The following is a representative sample of the category one child abuse videos:[4]
(a) a video of one minute and 22 seconds in length involving a child of around five years of age being anally penetrated by an adult penis;
(b) a video just under five minutes in duration showing an adult male attempting to insert his penis into a three to six-year-old child’s anus multiple times;
(c) a 23 second video showing a child aged between four and seven years and two adult male offenders. One adult is seen penetrating the child’s anal region with his penis and the second adult is seen placing his right hand on the head of the child restricting the child’s movement while operating the camera. The child appears to be in distress;
(d) a video of just under two minutes duration, involving a four-year-old child performing fellatio on an adult male until ejaculation;
(e) a nine-minute video showing an adult male masturbating whilst driving a vehicle, and filming a number of children between the age of four and 14, before receiving fellatio from a female aged between 10 and 14;
(f)a 14 second video showing a female child aged between two and four being anally penetrated by the penis of an adult male.
[4]This appears to be representative of category one. The ages of the victims are approximate.
19Analysis revealed the date of creation of the above-mentioned representative samples was 26 September 2021. These representative samples were accessed between 26 September 2021 and 27 January 2022.
20A series of category two files were analysed and were found to be created between 8 July 2020 and 26 September 2021. These files were accessed between 18 July 2020 and 12 January 2022.
21The files were arranged within the relevant hard drive into folders with titles including “KidsSuck”, “little-angela”, “Anal”, “Best” and “Blowjob”.
22You were interviewed by police on 10 February 2022 and made the following comments:
(a) police were at your house because you used other people’s ID;
(b) you were struggling financially because of COVID and were asked by a person online to do some work for him;
(c) a person named Jack would get you to create bank accounts with his face on a card, but under a different name, and you would get paid for it;
(d) three to four months previously, Jack had told you that he was involved in trafficking drugs;
(e) you were asked to help prepare drugs but refused;
(f) the licences that were found at your home were left for you by Jack;
(g) you admitted receiving money for using the identity cards in order to open false bank accounts and for withdrawing and depositing cash into these accounts;
(h) the phones in your possession were for an escort business in Sydney. You acted as an agent for girls who worked in a brothel;
(i) you had a hard drive that you won from someone else which contained child pornography. You watched the porn on it once;
(j) you denied any sexual attraction to children and denied downloading the files on the hard drive;
(k) you received the hard drive when you came to Australia, some four or five years ago;
(l) you opened most of the files to see the ages of the children. The ages in the videos and images ranged between two and 16. The images involved penetrative acts. You thought child porn was “a little disgusting”;
(m) that there were five or six gigabytes of material and you had tried to delete it, but were unable to do so;
(n) the still CCTV images of a person carrying a blue box were images of you;
(o) you were told to wait out the front of the building for Jack to drive his car there, and then you put the blue box into the car;
(p) the box was very heavy and had 10 litres inside it and contained drugs. You believed Jack was going to sell it. You did not get any money for the transportation of that blue container.
Personal circumstances
23You were aged 24 at the time of the offending and are now aged 26. You have no prior convictions and there is nothing else pending.[5]
[5]One subsequent matter of attempting to use a false document and dealing with property suspected of being proceeds of crime. Sentenced at the Sunshine Magistrates’ Court on 10 June 2022 to an aggregate fine of $500 with conviction.
24A psychological report prepared by Ms Pamela Matthews dated 29 June 2023 was tendered on your plea.[6] This report sets out your background.
[6]Exhibit 2.
25You grew up in Wuhan, China. Your mother worked as a secretary of a political party and supported the family financially. During your formative years, your parents were often away, and you were cared for by your paternal grandmother. When you were in Year seven, you did not see your mother for a year as she was travelling for work.
26Prior to entering the second year of high school, you describe yourself as a good student who had never been disciplined. As a result of having an iPhone in your second year, you began experiencing bullying which involved physical violence. Fellow students distanced themselves from you and you experienced isolation. You began truanting from school. Your mother, having discovered your non-attendance at school due to bullying, enrolled you in an Australian College in China and you began your VCE studies.
27You came to Australia in 2016 aged 18. You enrolled and commenced a Foundation Language Diploma in Melbourne. Your mother supported you with paying for your accommodation. You worked at two Asian restaurants as well as delivering food. You completed the language course in 2018. In 2019, you moved to the address in Abeckett Street apartment which you shared with another student.
28In Melbourne, you had few friends and enjoyed solitary activities including fishing, riding your bike, taking scenic photographs, and playing video games.
29You have never used any illicit substances.
30In custody you are in an area with other Chinese inmates. You are in your cell by 5pm and sleep an average of 11 hours. You watch Chinese news and are teaching yourself Japanese. You receive regular telephone calls from your mother and a close friend. You appear to have settled well in custody and are happy to maintain your distance and partake in activities alone.
31Upon release from custody, you will be deported back to China. This is something you welcome and quite properly, deportation is not relied upon as a mitigating factor.
Objective gravity
32There is no dispute that charges 1 and 4 are the most serious. The maximum sentences make it plain that these offences are inherently serious.
33While the weight of the drugs is a very significant matter, it is one of many factors to be taken into account.
34Mr Gullaci SC referred me to Gregory (a pseudonym) v R,[7] where the Court of Appeal stated:
… quantity is a highly relevant consideration in sentencing for trafficking offences. Counsel for BG accepted this was so. Other things being equal, the greater the quantity trafficked the more serious the offence. There are, of course, other important indicators of offence seriousness - in particular, the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.[8]
[7](2017) 268 A Crim R 1.
[8]Ibid, [24] (emphasis added).
35Mr Gullaci submitted that the trafficking for which you fall to be sentenced falls at the low end. That categorisation was not disputed by Mr Cookson. Your involvement was confined to a single day. Further what you did on that single day was limited to moving a container containing 1,4 Butanediol from the apartment to a car. You admitted that by doing so you were assisting Lye to sell the drug of dependence. It is not suggested that you had knowledge of the wider trafficking operation that is alleged Lye was involved in. You received no financial reward for taking the container to the car.
36The quantity in your possession was five times the commercial threshold. However, the Court cannot overlook the importance of your admissions in establishing the case against you. You were utterly frank in admitting knowledge of the quantity in the container.
37Any sentence must give prominence to general deterrence. An unequivocal message must be sent to those who may be minded to traffick in drugs, that they face the prospect of lengthy prison sentences.[9] In your case, I am required to balance the public interest in encouraging co-operation leading to conviction.
[9]I have had regard to Abdullayev v R [2022] VSCA 225.
38I now turn to charge 4.
39I regard the offending that you engaged in as a serious example of this offence.
40I am required to consider a number of factors that inform the objective seriousness of your offending. These include the nature and content of the material, including the age of the children, the gravity of the sexual activity portrayed, and the number of images you possessed.
41You were in possession of some 1,269 child abuse images and 430 child abuse videos. That is a significant amount of offending material. Majority of the videos, some 353 of them, fell within category one depicting real victims. The moving images ran for up to 23 minutes in length. The victims were predominately female, being offended against by adult males. The victims were as young as three years old. The ages ranged from three to nine. The significant material indicates the sexual and physical abuse of many innocent children. The material is most disturbing; it is vile and depraved. While I am sentencing you for possessing this material on a single date, I take into account that you accumulated this material over a period of time. Your interest in the material extended to you filing the material into folders.
42Your possession of this child abuse material creates a market for the continued corruption and exploitation of children. This is not a victimless crime and children must be protected. Given the anonymity provided by the internet, this offending is difficult to detect.
43In sentencing you, general deterrence must be given prominence. In DPP (Cth) v D’Alessandro,[10] the court stated that:
the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[11]
[10](2010) 26 VR 477.
[11]Ibid 483 [21].
44The sentence I pass must unequivocally send a message to those who may be minded to offend in a similar manner, that such abhorrent offending will be met with stern punishment in the form of prison sentences. Your offending must be denounced, and you must be justly punished.
45I accept that you possessed the material for your personal use and not for the purpose of sale or distribution. You didn’t profit in any way. Of course, the absence of these factors does not mitigate the offending.[12]
[12]See DPP (Cth) and DPP v Garside [2016] VSCA 74, [25] – matters relevant to sentencing for child abuse material cases.
46As stated earlier, you made appropriate and no doubt embarrassing admissions to Ms Matthews. You accepted that you had downloaded the material over a period while in Australia and you would fantasise and masturbate to the material.[13]
[13]Exhibit 2, page 8 last paragraph and top of page 9.
47In respect of Charges 2 and 3, while they fall at the lower end, nevertheless any offence committed to assist another in their drug trafficking enterprise must be appropriately punished.
Matters in mitigation
48On your behalf, Mr Gullaci provided the Court with comprehensive written plea submissions,[14] which he highlighted and supplemented in his oral submissions. The plea submissions articulated were sensible and realistic. Mr Gullaci emphasised the following matters:
· a significant degree of cooperation, including important admissions and early pleas of guilty;
· genuine remorse;
· youth and lack of prior matters; and
· good prospects of rehabilitation.
[14]Exhibit 1.
49Your pleas of guilty were entered at an early stage. By pleading guilty, you have facilitated the course of justice and have taken responsibility for your actions. You have also saved the community the time and cost of a trial. The utilitarian benefit of your pleas is heightened in the current environment when this Court is facing a considerable backlog of trials.
50In respect of Charge 1, your admissions to the police allowed the prosecution to lay the charge of commercial trafficking. Your admissions could not have been more candid. You accepted that the carboy contained 10 litres of a drug of dependence and that you were aware that Jack was going to sell its contents.
51It was fairly conceded by Mr Cookson that your admissions were very valuable. Absent your admissions, a case on commercial trafficking would not have been viable, and a charge of trafficking simplicitor may have been more realistic.
52In respect of Charge 4, during the execution of the search warrant you informed one of the officers that you were in possession of child abuse material that was contained on a hard drive that you pointed out. I note that the investigation centred around trafficking of a drug of dependence. While it may be that the police would have ultimately located the child abuse material, your admission was helpful in directing their attention to it and no doubt saving precious police resources and time. Whilst it demonstrates that you were cooperative, clearly the same level of mitigatory value cannot apply to this charge as compared to Charge 1.
53I accept that your cooperation and admissions to the police during the execution of the warrant and in the record of interview, and your admissions to Ms Matthews relating to Charge 4, along with your early pleas of guilty, demonstrate genuine remorse.
54You were 24 years old at the time of the offending. Importantly, you have no prior convictions and there is nothing else now pending. Your relative youth is important and allows the Court to give greater consideration to your rehabilitation.
55The fact that are experiencing custody for the very first time at a relatively young age, will no doubt act as a reminder to you of the importance of not becoming embroiled in any future criminal activity. You will return home to the support of your family, in particular your mother. You have assisted the prosecution at various junctures of this criminal proceeding and shown remorse. All these factors allow me to conclude that your rehabilitation prospects are good and require less emphasis on specific deterrence.
56Ms Matthews opines that you meet the diagnosis of Social Anxiety Disorder, Personality Disorder with Schizoid and Borderline Personality Disorder Traits, Gambling Disorder and Pedophilic Disorder. In respect of the last diagnosis, despite an untruthful account in your police interview, you made sensible concessions to Ms Matthews as to your interest in the child abuse material and the fact you were responsible for downloading it. Mr Gullaci did not, sensibly, make any Verdins[15] submissions. I note Ms Matthews states that you appear to be managing and no mental health concerns exist.[16]
[15]R v Verdins (2007) 16 VR 269.
[16]Exhibit 2, page 9 penultimate paragraph.
57In respect of Charge 4, Ms Matthews assesses your risk of similar offending as average.[17] Her assessment of your risk of contact offending against a child is assessed as low or no risk.
[17]Ibid, page 7, last sentence of second paragraph. Page 9, last sentence of first paragraph. See also page 6, last paragraph which suggests an average to above average risk of similar offending.
Sentence
58There is no issue that a term of imprisonment with a non-parole period is the only appropriate disposition.
59Having considered all relevant matters, Mr Hu, you are sentenced as follows:
· On Charge 1, you are convicted and sentenced to 2 years’ imprisonment.
· On Charge 2, you are convicted and sentenced to 3 months’ imprisonment.
· On Charge 3, you are convicted and sentenced to 4 months’ imprisonment.
· On Charge 4, you are convicted and sentenced to 2 years and 2 months’ imprisonment.
60On Summary Charge 2, you are convicted and sentenced to 7 days’ imprisonment. On Summary Charge 7, you are convicted and sentenced to 14 days’ imprisonment.
61The sentence on Charge 4 will be the base sentence. 12 months of the sentence on Charge 1 and 1 month of the sentence on Charge 3 will be served cumulatively upon the base sentence and on each other. The remaining sentences will run concurrently.
62This makes a total effective sentence of 3 years and 3 months’ imprisonment.
63I set a non-parole period of 2 years.
Pre-sentence detention
64Pursuant to s 18 of the Sentencing Act 1991, the period of 561 days of pre-sentence detention is declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.
Section 6AAA declaration
65Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 5 years’ imprisonment with a non-parole period of 3 years and 3 months.
Sex Offender Registration
66Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to Charge 4, and the reporting period is 8 years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.
Other orders
67I grant the forfeiture and disposal orders sought.
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