Director of Public Prosecutions v Hui, Chi
[2015] VCC 150
•17 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01788; CR-13-01789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHI HUI & TSAN LIN |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 February 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 150 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | MR R. BARRY | |
| of Public Prosecutions | ||
| For Accused Chi Hui | MR U. HEBSWORTH | |
| For Accused Tsan Lin | MS M. FITZGERALD |
HIS HONOUR:
1 Chi Hang Hui and Tsan Loong Li Lin, you have pleaded guilty to two separate indictments before me. Mr Hui pleaded guilty to importing a marketable quantity of border controlled drug, methamphetamine, between 28 March 2013 and 2 April 2013. Also trafficking in a commercial quantity of a controlled drug, methamphetamine, between 2 April 2013 and 5 April 2013.
2 You, Lin, pleaded guilty to trafficking in a marketable quantity of a controlled drug, methamphetamine, on the second day of April 2013, and possession of a commercial quantity of a border controlled drug, methamphetamine, on 5 April 2013, a drug reasonably suspected of having been unlawfully imported.
3 I will deal with each of your circumstances and roles separately later in this sentence. However, your conduct and the circumstances of your offending, involving as it does participation by both of you, may be summarised briefly in relation to you both. A very full exposition of the facts was produced by the prosecution and exhibited at Exhibit A and it will be retained in the file for future reference.
4 For these purposes it will suffice to summarise the facts in this way. On 28 March 2013 a package from Hong Kong arrived in Melbourne by mail. Hui had coordinated the posting, delivery and content of that package with unknown persons in Hong Kong. This was the basis for his charge 1. On 2 April, Lin took delivery of the package, opened it and took it to Hui. This is Lin's charge 1.
5 Since the package was not intercepted, the quantity of methamphetamine and its purity are unknown,. For the purposes of the plea it is accepted by both parties that it contained at least a marketable quantity of methamphetamine, that is 250 grams.
6 Over the next few days, Hui processed the methamphetamine from liquid to crystal form. You, Hui, spoke to a male in Hong Kong about the recrystallisation process. On the day of your arrest police seized 1.62 kilograms of pure methamphetamine from your premises. Charge 2 for Hui relates to the findings in this search. When you, Lin, were arrested, you were found in possession of 1.76 kilograms of pure methamphetamine, and that is your Charge 2.
7 You, Hui, arranged and coordinated the importation at the Victorian end. You, Lin, took delivery of the importation and then conveyed it to Hui, knowing he would process the product. 1.62 kilograms which Hui processed from liquid to crystal between the second and the fifth of April, included the methamphetamine conveyed to him by Lin.
8 Both of you had used phones subscribed in false names during this enterprise. Having arranged the importation, you, Hui, were in contact with unknown males in Hong Kong and you can be heard in detailed discussion as to how to properly prepare the drugs. You, Lin, knew Hui was going to process the methamphetamine. On 4 April 2013, Hui processed the substance from liquid form into crystalline methamphetamine. In preparing it for distribution, you trafficked in effect that substance.
9 As to Lin's second charge of possession of a commercial quality of methamphetamine, that arises in a background where your home, Mr Lin, was searched, and five bottles containing a liquid were found under a double bed in the bedroom. 1,565 grams of pure methamphetamine were found in total in those bottles. Police also searched other premises you shared with four other males. Another bottle half full was found in your room which contained 193.2 grams of methamphetamine.
10 At the time of the search you were in the process of moving from one place to another. The total pure weight of methamphetamine seized from all premises was approximately 3.4 kilograms. Potential wholesale value of it is between $560,000 and $850,000. The net weight of methamphetamine seized was 6.89 kilograms at a purity of 37.3 per cent. If sold at $50 per .1 of a gram at street level, the value is over $3 million. And if sold at $150 per point it is over $10 million.
11 It is clear from the circumstances of the offences that this conduct was planned, the drug was imported with intention of processing it, and the amount imported was not less than 250 grams. Hui also processed and trafficked a commercial quantity of 1.62 kilograms of methamphetamine. A commercial quantity is 750 grams. You possessed equipment for this purpose and it occurred over a period of time. You were motivated by financial reward and I consider these offences are a serious example of this type of criminal conduct.
12 Lin, your movement of the drug involved no less than 250 grams, being a marketable quantity of a controlled drug. You were also found in possession of a further 1.5 kilograms of pure methamphetamine. A commercial amount is 750 grams. You too were motivated by financial reward and I consider this offending on your part a serious example of these offences.
13 As a first matter to consider, there is the plea of guilty for each of you. I accept that the plea was communicated in a timely fashion in relation to Mr Hui in July 2014, which has avoided a complex drug trial and bears a utilitarian benefit which calls for a discount on the sentence which I will indicate.
14 As to remorse, this is often more difficult to assess fully. However I accept that the mere plea of guilty can be demonstrative of some remorse, and I accept that I should factor in this demonstration on the discount which the plea should properly reflect.
15 As for Lin, your plea of guilty was entered on what otherwise would have been the first day of a trial, therefore, not at the earliest opportunity, which will also be reflected in the measure of discount I accord to it. Nonetheless, just as with Hui, there is a utilitarian benefit to that plea and similarly as to some remorse I will factor in this consideration.
As to your role, it was accepted that Hui is higher in the hierarchy than Lin in relation to the ordered amount, given the circumstances of the importation and the communications captured thereto. In relation to Hui, it was said that you had a subservient role to a person in Hong Kong with whom you spoke, and that your primary role was to process the drug according to the guidance provided by such a person.
17 I am not satisfied that there was such a subservient relationship on the material I have read, and in my view I had insubstantial evidence to make that determination. In my view I assess Hui's role in the criminality committed in Australia as very high, irrespective of what his role or relationship he may have had with any person in Hong Kong, with Lin somewhat lower in the order of importance but only marginally.
18 I accept that the proper basis for sentencing on the importation is that related to a marketable quantity which is one third of the minimum amount needed for a commercial quantity. This charge carries a maximum penalty of 25 years imprisonment. I also accept that this importation is in effect included in the 1.62 kilograms of pure amphetamine which is the basis of the trafficking charge, and there is therefore some overlap between the two charges. This will be reflected in some amount of cumulation.
19 This charge carries with it a maximum of life imprisonment. It is conceded on your behalf that not only was a significant term of immediate imprisonment inevitable, but that a measure of cumulation is required to reflect the two offences, and “substantial” concurrency due to the overlap. That substantial amount was not identified, but it is noted that the quantity normally imported is only theoretically one sixth of the trafficking amount which was put on the basis of preparation for sale. In this context I accept that there is no evidence of trafficking by way of selling substances. There appears to be no accoutrements of trafficking. This, it would appear, as was conceded, was an undertaking to process and provide the drug for others to sell. However, I must state that in my view this is not mitigatory within the rubric of trafficking, It rather emphasises the higher role which each of you played away from the more mundane task of actual sale.
20 As for you, Lin, it was submitted on your behalf that your role was as "delegate to Hui". In my view it is clear from the conduct relative to the importation that Hui was a prime mover and you, Lin, were somewhat lower in the hierarchy, though nonetheless you played an important role in the importation.
21 As for the trafficking, there is little evidence which indicates that the two of you are of significant different levels of a hierarchy of importance or decision making. You Lin, were found in possession of a similar amount of drugs as Hui which constitutes the foundation of the possession charge, which carries also a maximum penalty of imprisonment for life.
22 Some of your answers in the interview conducted by the police with you suggest you were somewhat lower in the relationship with Hui. In my view, these matters, apart from being self serving, are not persuasive of a much lower role. Both of you had keys to the premises. You rented one of the premises of Hui's, whom you had known in Hong Kong before coming to Australia.
23 There are contrary indications, if one is to accept your answers, to the effect that Hui was paying the rent and Hui was the one communicating with Hong Kong, but these factors appear too fragile a foundation to conclude that your roles beyond the importation in question were significantly different. I do however accept that as part of your role, you were the trusted warehouseman who was to look after the primary substance.
24 You knowingly possessed these in anticipation of directions and instructions. You were part of a commercial venture and were a trusted person. There is no safe determinant in the factual circumstances which can indicate an overlap between the material imported and that found in your possession, so such commonality and therefore concurrency are not viable.
25 As to your personal circumstances, Mr Hui, you are a Hong Kong citizen, neither a resident nor a citizen of this country. It is highly likely you will be deported at the end of your sentence, and I take that situation into account only in as much as it may impact on your expectations for your future while in prison.
You have no family here in Australia. It is in Hong Kong. This absence is a factor which I take into account in holding that reclusion without your family's support will mean a greater isolation and hardship to some extent.
26 You are an only child of a Hong Kong family. You came to Australia in 2012 on a working and holiday visa, then a student visa in 2013. You undertook a tourism course by private college and your parents paid your fees for this course. Your father is a truck driver and your mother, a retired person, is receiving treatment for cancer. Your ex-girlfriend visits you once a month. Apart from your family you have, I was told, a good working record in Hong Kong, as well as an academic record, a science degree in chemistry. You plan to return there and live with your family. You are in your early 30s.
27 Although you have a prior in Hong Kong for possession of cocaine for which you were imprisoned, you have no priors for trafficking there or in Australia, and while on remand you have undertaken a significant number of courses of education which were attested to by a number of certificates tendered to the court. I take these matters into account in your favour in assessing your prospects of rehabilitation as reasonably good.
28 It was said on your behalf that the reward for this conduct was financial gain of $5,000. Such assertion, not made in the depositional material or record of interview, is difficult to accept as a bare proposition put from the Bar table on your instructions. It is a proposition which cannot be advanced even to the appropriate standard, given the circumstances of the offending.
29 Further, your assertion that you were a user of methamphetamine at the time of the offences is again not reflected in the material. Without such evidence I cannot find that that was in fact the case, and even if that had been the case here, such a factor would not serve to alleviate or ameliorate the sentence on the primary charges and given the primacy of general deterrence required.
30 Mr Lin, you have no prior criminal history and that is a matter which I take into account. You are 31 years of age. You had an expectation of reward from this participation in a significant criminal operation of large proportions. You took up the opportunity to demonstrate your loyalty and trustworthiness. You sought to offer assistance to Hui after the importation, not just in the delivery, but also in the processing.
31 Your family too is in Hong Kong and does not know you are in custody. Your reclusion is rendered and will continue to be more difficult to some extent because of your lack of English, your different culture, and fairly isolated situation, a circumstance which inevitably follows upon your criminal conduct. It is true that you did not enter this country for these purposes alone, and I take that into account.
32 You are a single man though a girlfriend again visits you once a month. You are the eldest of three children of a Hong Kong family. You left school at 16 and have had uninterrupted work until age 28. At that age, in 2012 you first came to Australia and obtained employment in the telecommunication industry. You have never used drugs and this conduct was only related to gain.
33 This will have been your first time in custody, and your demonstrated willingness to complete some educational courses during your remand is indicative that you may have some prospects of rehabilitation. Certificates were tendered to show that you had indeed engaged in educational courses. This is to your credit and I take this into account, and I take into account the donations you have regularly made to charities out of your money as demonstrated by the tax invoices from Corrections for most of 2014, which were tendered. This altruistic impulse is a positive factor which does augur well for you prospects of rehabilitation which are probably good. You will be deported once the sentence expires.
34 I received a report from Gary McMullen, a psychologist, in relation to your psychological state, dated 24 November 2014. He outlined a childhood marked by your father's drinking and frequent violence. He passed away when you were 17, at which point your education finished and you went out to work to support the family.
35 After years of successful work and business ventures you travelled to Australia in 2012 for a holiday. Next year you again returned on a working holiday visa. You drink alcohol regularly. According to Mr McMullen you have some hopes for a future career as a chef.
36 You are currently experiencing depression due to your circumstances, McMullen opines that you have a major depressive disorder recurrent which is longstanding. In addition he says you meet the criteria for post-traumatic stress disorder as a syndrome which reflects traumatic events in the past. These are coupled with the heavy responsibility you have felt to assist your mother and failed. The principles of Verdins are not relied on here, however these are matters which I take into account in relation to your time in custody and its impact there upon you.
37 After the plea the Crown made available to the court and the defence a breakdown of what the value was of the drugs if sold wholesale relative to each accused, the amount related to each of you. This document was presented and will be exhibited to demonstrate the substantial amounts involved.
38 I have taken into account each of the matters in s.16A(1) and (2) of the Crimes Act 1914. It is the primary obligation on the court to consider these non-exhaustive elements. I consider that general deterrence is of primary importance in the importation and trafficking offences as well as the possession offence. I take into account the weights, the nature and level of your participation and involvement, your level of planning and the commission of these serious offences for commercial gain. The degree of purity is also important.
39 I have also had regard to the provisions of s.19 as to the commencement and cumulation matters. I have also considered the principal of totality in this exercise to endeavour to arrive at a sentence which is appropriate to the criminality concern. Could you stand please? Both of you.
40 Mr Hui, on importing a marketable quantity, Charge 1, you are convicted and sentence to five years' imprisonment. On trafficking a commercial quantity of a controlled drug, Charge 2, you are convicted and sentenced to six years' imprisonment. I order that one and a half years on Charge 1 will be cumulative on Charge 2, in your case making a total effective sentence of seven and a half years. I order a non-parole period of six years.
41 Mr Lin, on Charge 1 of trafficking a marketable quantity you are convicted and sentence to four years and three months. On Charge 2 of possessing a commercial quantity, you are convicted and sentenced to five and a half years' imprisonment. I order that one year and three months on Charge 1 be cumulative to Count 2, making a total effective sentence of six years and nine months. I order a non-parole period of five years.
42 With the assistance of the prosecution I will announce the commencement periods. I should state that but for your plea in relation to you, Mr Hui, I would have sentenced you to a total effective sentence of eight and a half years and a non-parole period of seven. In relation to you, Mr Lin, I would have sentenced you to a total effective sentence of seven and a half years with a non-parole period of six and a half years. I will note in the records of the court that each of you have served 683 days by way of pre-sentence detention excluding today.
43 MS FITZGERALD: As Your Honour pleases.
44 HIS HONOUR: I need to order, Mr Barry, that a sentence begin today obviously enough, and then at some point so as to complete the appropriate period, the other sentence will start.
45 MR BARRY: Yes, Your Honour.
46 HIS HONOUR: So how do I formulate that properly?
47 MR BARRY: Your Honour, in my submission, given that Your Honour has ordered that in relation to each offender that the sentence on each of their Count 1s be cumulative on Count 2, then in my submission you should order that in relation to each count two for each begins today, that being the base sentence.
48 HIS HONOUR: Yes.
49 MR BARRY: And the higher sentence for each of them.
50 HIS HONOUR: Correct.
51 MR BARRY: So in relation to Hui for example, Count 2 to begin today being a period of six years.
52 HIS HONOUR: Yes.
53 MR BARRY: Your Honour has ordered one and a half years of Count 1 to be cumulative on Count 2, so that means Count 1 being five years, that means Count 1 is to begin - let me work that out, if it is six years - - -
54 HIS HONOUR: I think the way that I was thinking about it was that if Count 1 was to begin today, that is the shorter period, and then in a year and a half's time Count 2 was to begin, that would enable the total effective sentence to be seven and a half years which is what I have ordered. Do you understand what I am saying?
55 MR BARRY: Yes.
56 HIS HONOUR: In other words, after serving a year and a half of the first sentence, that is the shorter sentence in fact, then the longer sentence kicks in.
57 MR BARRY: Yes.
58 HIS HONOUR: Which then makes for a total effective sentence of seven and a half years, and then I have stated the non-parole period applicable. Would that be - - -
59 MR BARRY: That is an easier way, Your Honour, yes. That is an easier way.
60 HIS HONOUR: I think that makes it easier to understand rather than reverse the order.
61 MR BARRY: Yes, yes.
62 HIS HONOUR: And therefore the first period which they serve will be in effect the cumulative period, right?
63 MR BARRY: Yes, Your Honour.
64 HIS HONUR: Right. So, what I should order is that in relation to each of them the charge is the Count 1 sentence which begins today.
65 MR BARRY: Yes, Your Honour.
66 HIS HONOUR: And in relation to Mr Hui, the second sentence which is the longer sentence will begin one and a half years after today's commencement, and in relation to Mr Lin, one year three months after the commencement of that sentence.
67 MR BARRY: Yes.
68 HIS HONOUR: Do I need to state precise dates? I think that I probably do.
69 MR BARRY: It is preferable that you do, Your Honour.
70 HIS HONOUR: If there is nothing more, I can just step down for a moment and you can work it out and give me a date.
71 MR BARRY: Yes.
72 MS FITZGERALD: Yes, Your Honour.
73 HIS HONOUR: And I will then announce those particular dates so that there is a position. But I think that method is - - -
74 MR BARRY: That method is better, Your Honour. I was looking at it from the wrong end.
75 HIS HONOUR: All right. I will just step down for a moment.
76 (Short adjournment.)
77 MR BARRY: Yes Your Honour. In relation to Mr Hui - - -
78 HIS HONOUR: How many judges and lawyers does it take to work out a Commonwealth sentence, Mr Barry?
79 MR BARRY: I am sorry, Your Honour? I am sorry, I forgot to tell your associate we were ready, Your Honour. It did not take us that long.
80 HIS HONOUR; No, I am not complaining.
81 MR BARRY: 17 August 2016 should be the commencement date for Count 2 for Hui, Your Honour.
82 HIS HONOUR: 17August 2016, that is for the second sentence, yes.
83 MR BARRY: And for Lin, 17 May 2016 for Count 2.
84 HIS HONOUR: I can then declare and announce that sentence in relation to Mr Hui as to the Charge 1 will commence today, and the sentence in relation to Charge 2 will commence on 17 August 2016. And for Mr Lin, the sentence of Charge 1 will commence today with the second charge sentence commencing on 17 May 2016, and I have previously declared non-parole periods in relation to each.
85 MS FITZGERALD: As Your Honour pleases.
86 MR BARRY: With 683 days previously served, Your Honour.
87 HIS HONOUR: Yes, 683. I have noted those and they will be noted in the records of the court. Thank you for your assistance.
88 MR BARRY: Thank you, Your Honour.
89 OFFENDERS REMOVED
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