Director of Public Prosecutions v Jai Adam Yuen
[2017] VCC 786
•16 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00234
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAI ADAM YUEN |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 May 2017 | |
DATE OF SENTENCE: | 16 June 2017 | |
CASE MAY BE CITED AS: | DPP v Jai Adam Yuen | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 786 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW - SENTENCE
Catchwords:
Legislation Cited: Crimes Act 1914 (Cth)
Cases Cited: DPP (Cth) v Maxwell [2013] VSCA 50
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Kohn | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J. Anderson |
HER HONOUR:
1 Jai Yuen, you have pleaded guilty to two charges of attempting to import a commercial quantity of a border-controlled drug (Charges 1 and 2) and one charge of importing a commercial quantity of a border-controlled drug (Charge 3). The maximum penalty for each of these offences is life imprisonment or a fine of 7500 penalty units.
2 The circumstances of your offending are set out in detail in the Amended Summary of Prosecution Opening for Plea which was tendered as Exhibit “A”. In brief the circumstances were as follows. Between 4 May 2016 and 7 May 2016 you made arrangements for the importation from China of two litres of gamma-butyrolactone (“GBL”) which was shipped on 10 May 2016 to your residential address. Between 25 May 2016 and 30 May 2016, you arranged for the importation of a further two litres of GBL. The consignment was shipped on 1 June 2016. Those two orders are the subject of Charge 1.
3
Charge 2 concerns two further orders. Between 15 June 2016 and 7 July 2016, you made arrangements for the importation of four litres of GBL from China. Between 29 June 2016 and 11 July 2016 you arranged for the importation of
25 litres of GBL. The air cargo history indicates that both of those consignments were shipped and delivered.
4 GBL is a liquid precursor to the chemical gamma-hydroxybutyrate (“GHB”). When ingested, GBL converts to GHB and has similar effects. GBL and GHB are increasingly popular in what is described by the Prosecution as the "recreational club scene". GBL is a border-controlled drug and a commercial quantity of GBL is an amount greater than one kilogram. While the material indicates that the orders which you placed and paid for which are the subject of Charges 1 and 2 were sent, those consignments were not intercepted. The material is not able to be tested to verify that it was GBL. Accordingly, you are charged with attempted importation rather than importation.
5
In contrast, Charge 3 concerns a consignment which was intercepted on
24 August 2016 by authorities. That consignment involved 4.98 litres of GBL. The potential value for that amount of GBL according to an expert is between $9000 and $22,500 wholesale value and between $15,090 and $25,150 street value.
6
In sentencing you, I have taken into account your personal circumstances.
You are now 37 years old. You were born in Canberra. Your father was born in Hong Kong and migrated to Australia when he was young. Your mother grew up in Canberra. You have three siblings. When you were about nine your family moved to country Victoria where your parents operated a Chinese restaurant. You began working part time in the family restaurant when you were 14 and started working there full time after you left school when you were 16. You were bullied to a certain extent at school as you were the only family in the area with an Asian background. While you were growing up, your parents worked very hard in the restaurant and you and your sister often had to look after your younger siblings.
7
You started smoking cannabis when you were 15. You started the occasional use of amphetamines when you were about 16 or 17. At 18 you started using amphetamines and heroin intravenously and your drug use escalated.
You remain employed as a supermarket night filler and also at your uncle’s Chinese restaurant in another country town. You continued in this way until your first term of imprisonment in March 2010. You received a sentence of one year and eight months’ imprisonment with a 12 month non-parole period.
8 According to your counsel you rediscovered your Christian faith during this period of incarceration. You completed parole without incident and obtained employment. Following that you obtained work as a plant operator and were employed in mine sites in Queensland and gas plants around Darwin and in the Pilbara area. At this stage you were earning good money. You were regularly tested for drugs and had significantly reduced your drug use.
9 In 2013, you got into trouble with the law again for driving under the influence of drugs. In 2014, you were living in Darwin with your partner when she became pregnant. You decided to go back home to country Victoria to raise your daughter who was born in January 2015. You returned to country Victoria in late 2014, but were unable to find employment. You then relapsed into drug use which escalated and you squandered savings of $80,000. When you were arrested you had been working for one day laying cable.
10 You and your partner have been in a relationship for approximately ten years. She has no criminal history and does not use illegal drugs. In addition to your child with your partner, you have an older child who lives with her mother. Your parents operate a Chinese restaurant business in a town near to where you were living.
11 Your mother gave evidence on your behalf. She described your skills as a cook. She said that on your release you would be able to work in the family restaurant and your father is hoping that you will be able to take over the restaurant when your parents retire. Your mother described the impact that your incarceration has had on your partner and your young daughter. It appears that your partner has had difficulty coping with matters, including financial matters, while you have been in custody on remand.
12 Mr Stephen Beeby provided a written reference and also gave evidence on your behalf. Mr Beeby is a volunteer prison chaplain. He met you while you were in remand. He considers that you are genuine in respect of your faith and wish to change. He says you are committed to your family and wish to work through your issues. Mr Beeby said that he had met your partner who was doing it “very tough”. Mr Beeby said that you were not just regretful but seriously wanted to change. He spoke of you assisting another person in custody.
13 You have admitted a significant prior criminal history. Your first appearance was in 1997 on a charge of transferring poison into an inappropriate container. This apparently relates to an incident where you put a cleaning substance in a soft-drink bottle which you put aside and another person provided to a child in the restaurant. Fortunately the child fully recovered, but your parents then closed that restaurant as a result.
14
You have subsequently had a number of court appearances for offences involving drug possession, violence and dishonesty. The sentence to which
I have referred in 2010 was principally in relation to dishonesty offending. In September 2015 you were sentenced to a period of imprisonment of two months to be followed by a community correction order for 12 months on offences involving violence and contraventions of a Family Violence Safety Notice. Your counsel said this offending occurred while you were adversely affected by drugs.
15 Your counsel submitted that despite your criminal history you had prospects of rehabilitation in that you had a sustained capacity to work and had remained offence free for a significant period of time. Your counsel also relied on the evidence of Mr Beeby in terms of your wish to reform and your family orientation. It was submitted that imprisonment weighs more heavily on you because of the situation with your partner. Medical material was provided in support of the proposition that your partner has significant difficulties coping with financial stresses and suffers from a Major Depressive Disorder and Anxiety.
16 Your partner has written a letter which was tendered as part of Exhibit 2. Your partner speaks of how difficult it is without you at home. She says that she has had conversations with you when you speak of making positive changes in your life and being able to help others.
17 You have written a letter to the Court, which was also tendered as part of Exhibit 2. You describe your rebuilding of your relationship with God. You speak about your partner and your children. You say that the time you have spent in custody has made you realise the impact of what you have done and you say that you are very remorseful for your actions. You say that you did not know the seriousness of the crime you were committing and if you had you would not have done such a stupid thing. You have done a number of courses in custody and various certificates were provided as part of Exhibit 2.
18 A further reference was provided from a regional liaison chaplain who has met you in custody. She speaks of your regret of your past behaviour and your positive commitment to courses and programs in custody, including Christian programs.
19 Your counsel also relied in mitigation on your plea of guilty and submitted that it was a relatively early plea of guilty as the matter resolved at committal stage without any witnesses being cross-examined. Your counsel also referred to a number admissions that you made during the Record of Interview, although your Record of Interview was predominantly a no comment one.
20 In respect of the offending your counsel submitted that there was no evidence of you having realised any commercial gain from the attempted importations or importation. He submitted that your offending was relatively unsophisticated, involving purchasing drugs over the internet with payment being made through Western Union money transfer. The majority of consignments were addressed to you and to be delivered to your father’s restaurant and with your phone number attached.
21 Your counsel relied on the decision in DPP (Cth) v Maxwell [2013] VSCA 50 in support of the submission that importations of GBL ought to be treated as objectively less serious than importation of some other drugs because of the relatively low value of the drugs. Your counsel submitted that this would result in a lower sentence than a sentence that might be received for a similar amount of a different drug. Your counsel submitted that there ought be reduced consideration of general deterrence and community protection. Your counsel referred to the sentences in a number of other cases in support of the submission that a lower sentence ought to be imposed for offending involving this drug when compared to the importation and trafficking of other drugs in commercial quantities.
22 The prosecutor in sentencing submissions addressed a number of factors which the prosecutor submitted were relevant to sentence and should be taken into consideration, including the relevant provisions of the Crimes Act 1914 (Cth). The prosecutor submitted that your role was that of principal and sole offender in relation to these importations or attempted importations. The prosecutor submitted that it should be taken into account that the amount that you attempted to import was 33 times the commercial quantity and the amount imported was 4.98 times the commercial quantity.
23 The prosecutor submitted that while there was no specific evidence to suggest that you were to receive any financial reward that this was the obvious motivation for your involvement and the objective seriousness of the offence would be greater where it was committed for financial gain.
24 The prosecutor accepted that your guilty plea was entered at an early opportunity and that you were entitled to a discount, but submitted that the extent of any discount ought be limited unless the Court was satisfied that there was genuine remorse. The prosecutor submitted that specific deterrence ought to have strong emphasis in any sentence imposed given your prior criminal record. General deterrence ought to be given particular emphasis also, given that the difficulty of detecting importation offences and the social consequences that might follow. The prosecutor addressed a number of cases involving importations of GBL and addressed the factors that she said were similar to your offending.
25 Jai Yuen, the offending in which you engaged is serious. You attempted to import and did import significant amounts of GBL. I am satisfied beyond reasonable doubt that you did so with a view to making money from the sale of at least some of the chemical imported. There is no other logical explanation for importing or trying to import these amounts over a four month period. I have said "at least some" because you were using illegal drugs at the time and may have been intending to use some of the imported GBL yourself.
26 The purchase, sale and consumption of illegal drugs causes great harm to individuals and the community as a whole. Anyone who imports or tries to import this amount of illegal drugs deserve significant punishment in order to denounce the behaviour and to deter that person and others from similar offending. The offending was not particularly sophisticated but you engaged in a degree of planning and organisation in arranging the importations or attempted importations and the payments. You were the principal and sole offender.
27 I accept your counsel's submissions in respect to the effect of the decision of the Victorian Supreme Court of Appeal in Maxwell. I particularly note what the Court in that case said at paragraphs 33-36. Sentencing practices for importations of GBL reflect a reduced culpability in cases where the likely financial reward is relatively small. The Court also said that the scale of anticipated reward is relevant to considerations of specific and general deterrence. These sentencing considerations would have increased importance where the anticipated reward is higher. The Court in that case said that the high maximum penalties of the importation of commercial quantities reflect the legislative intention to very heavily punish drug profiteers.
28 The amounts you attempted to import or imported are larger than the amounts in Maxwell but you, like that offender, could not have reaped financial rewards on the scale of amounts that might be gained by the sale of commercial quantities of more highly priced drugs.
29 Annexed to the decision in Maxwell is a table of cases dealing with the importation of GBL which demonstrates a range of sentencing practice. Your counsel provided a table of subsequent cases including State prosecutions for trafficking in commercial quantities of GBL.
30 Importing or attempting to import commercial quantities of illegal drugs is a serious offence in itself . The maximum penalty of life imprisonment indicates the seriousness with which the federal parliament takes this offending. You attempted to import many times more than a commercial quantity and did import several times more than a commercial quantity.
31 Taking into account what was said in Maxwell and the potential profit you could have made I consider that the objective seriousness of your offending was towards the lower end of offending of importation or attempted importation of a commercial quantity of a border controlled drug. The attempted importation is a particularly serious offence because of the amount you attempted to import.
32 General deterrence remains a very significant sentencing factor. It appears to be relatively easy and inexpensive to organise the importation of precursor chemicals into Australia. People who are thinking of doing that need to understand that these are border controlled substances and to import them is illegal. Despite the relative ease and low cost of importing those chemicals there are very significant penalties for importing commercial quantities of the substance which in the case of GBL is a kilogram or a litre.
33 There are a number of matters which I have taken into account in mitigation of sentence. You have pleaded guilty. That plea of guilty was made early. I am satisfied that that plea of guilty demonstrates some willingness to facilitate the administration of justice. There is a strong prosecution case but I consider that your plea is not just a recognition of the inevitable, particularly in relation to the attempted importations. Your plea of guilty has saved the expense of a trial. On the basis of the evidence I heard and the exhibits tendered, I accept that you are genuinely remorseful and not merely regretful. You made some significant admissions to police.
34 Despite your criminal history I consider that you have moderate prospects of rehabilitation. You have proved in the past that you can work and remain offence free. It is concerning that you relapsed into drug use and committed such a serious offence after a previous period of incarceration. I accept that you are genuinely concerned about your family and that you do have prospects of work. You have a genuine wish to stay away from illegal drugs and to support your family through gainful employment. You have family and community support.
35 Specific deterrence ought still have significant weight in sentencing you to discourage you from further offending. I accept that imprisonment has been and will be more difficult for you because of your concerns about the difficulties faced by your partner and the impact on your younger daughter. I have taken that concern and your prospects of rehabilitation into account when setting the non-parole period. Could you please stand, Mr Yuen.
36 On Charge 1, you are convicted and sentenced to three years' imprisonment . On Charge 2, you are convicted and sentenced to four years' imprisonment. On Charge 3, you are convicted and sentenced to four years' imprisonment.
37 Six months of each of the sentences on Charges 1 and 3 are to be served cumulatively on each other and on the sentence on Charge 2. The sentence on Charge 2 commences today. The sentence on Charge 1 commences 18 months after the commencement of the sentence on Charge 2. The sentence on Charge 3 commences 12 months after the commencement of the sentence on Charge 2.
38 The total effective sentence is five years' imprisonment. I fix three years and four months as the period you are required to serve before being eligible for release on parole. But for your plea of guilty I would have sentenced you to a term of imprisonment of six years and six months with a non-parole period of four years and six months. I declare that you have served 287 days by way of pre-sentence detention to be deducted administratively. Can you please take your seat, Mr Yuen.
39 Now, Ms Kohn, Mr Anderson, I do not want to keep Mr Yuen unduly but is there anything you want repeated?
40 MS KOHN: No, Your Honour.
41 HER HONOUR: All right.
42 MR ANDERSON: Sorry, Your Honour, can I get the commencement dates again?
43 HER HONOUR: Yes. So the sentence on Charge 2 commences today. The sentence on Charge 1 commences 18 months after the commencement of the sentence on Charge 2. The sentence on Charge 3 commences 12 months after the commencement of the sentence on Charge 2.
44 MR ANDERSON: Thank you, Your Honour.
45 HER HONOUR: Now because of the way of the structure of Commonwealth sentencing it always seems to be that you have to sit there with a piece of paper and work that out but please let me know as soon as possible if there is any error of a technical nature in that. I consider that I have made my intention plain so that ought to be able to be sorted out fairly quickly.
46 MS KOHN: Yes, Your Honour.
47 HER HONOUR: All right thank you. Mr Yuen can be taken down now, thank you. Yes thank you.
- - -
0