Director of Public Prosecutions v Jin

[2018] VCC 384

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-00485

CR-17-00486

CR-17-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAN JIN

CHIEH CHANG LEE

CHUAN YANG LI

---

JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2017, 15 December 2017, 23 February 2018
DATE OF SENTENCE:	9 March 2018
CASE MAY BE CITED AS:	DPP v Jin
MEDIUM NEUTRAL CITATION:	[2018] VCC 384

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Attempt to possess a commercial quantity of unlawfully imported border controlled drug; Distinction between co- offenders as to role; Possible deportation as a sentencing consideration; General deterrence

Legislation Cited:  Criminal Code (Cth); Sentencing Act 1991 (Vic)

Cases Cited:DPP v Masange [2017] VSCA 204; R v Nguyen and Pham [2010] 2 A Crim R 106; Schneider v The Queen [2016] VSCA 76

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms N. Kohn	Office of Public Prosecutions (Cth)
For Accused Jin	Ms M. O'Brien
For Accused Lee	Mr L. Howson
For Accused Li	Mr D. Care

HIS HONOUR:

1Chuan Yang Li, Han Jin, Chieh Chang Lee, you have each pleaded guilty to one charge that on 6 May 2016 you attempted to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine contrary to ss.307.5 and 11.1(s) of the Criminal Code (Cth). The co-accused, Yee Feng Chen, pleaded not guilty to that same charge in a trial before me in December 2017. He was acquitted.

2The circumstances giving rise to your offending involves the following.  On 28 April 2016 three packages arrived in Australia purporting to come from Malaysia. The consignee for each of the packages was “Tai Ming Quo,
22 Corella Street, Doncaster, Victoria 3108, 0426012937”.  The goods inside the packages were described as a "shipment of absorbers".  Australian Border Force officers detected anomalies in the packages and an examination revealed that each package contained four carefully wrapped shock absorbers.  Within each shock absorber there was a metal cylinder containing a crystalline substance weighing in total 1999.9 grams.  Later analysis showed the substance to contain 1599 pure grams of methamphetamine, being just over 2.1 times the applicable commercial quantity.

3The packages were reconstructed for the purposes of a controlled delivery, however, no substitute material was used.  Twelve days before the packages arrived in Australia you, Chuan Yang Li, arranged to rent a single room of a boarding house at 22 Corella Street, Doncaster.  You paid $880 in cash as a deposit for the room and a further $880 for one month's rent.  You gave your name at the time as "Ocean Li".  The evidence at the trial of your co-accused suggested that you used that name quite frequently. 

4Between 29 April and 2 May 2016 a number of calls were made to the delivery service DHL Express using falsely subscribed mobile phone services enquiring about the consignment.  On each occasion the caller identified themselves as Tai Ming Quo.  On one occasion the caller was recorded as saying "I'm a bit urgent to get the package because, um, that actually - that's a part of the car's suspensions and I have the customer who waiting for it".

5On 3 May 2016 an AFP officer posing as a Customs representative rang the mobile telephone number on the consignment.  The person answering the call identified themselves as Tai Ming Quo.  That person was told that duty was payable on the consignment and the officer advised that he'd be in touch over the next few days to organise the collection of the consignments.  A further call was made on 5 May 2016 where, again, an AFP officer posing as a Customs representative advised that the consignment could be collected the following day at Melbourne airport.

6On the morning of 6 May 2016 you, Li, and you, Jin, attended at ABF Customs House at Melbourne airport in a black Chrysler 300C which you, Li, had borrowed from an associate here in Melbourne.  You, Li, produced a false
New South Wales driver's licence displaying your photograph.  You told ABF staff that you were there to collect the consignments on behalf of your friend who was in Sydney at that time.

7Later that morning you both travelled to an apartment complex at 100 Kavanagh Street, Southbank.  You both took the three packages to Apartment 139 on the 13th floor where you met with Mr Chen and you, Mr Lee.  CCTV footage shows that approximately 20 minutes later all four of you left the apartment and travelled to Bunnings at Port Melbourne where various tools and cleaning products were purchased for the apparent purpose of disassembling the shock absorbers to obtain the methamphetamine inside.

8You all returned to the apartment where the metal cylinders inside the shock absorbers were opened and examined.  You each left the apartment at various times that afternoon and a search of the apartment later in the evening revealed components of the shock absorbers, various hand tools purchased from Bunnings and invoices from inside the packages.

9The apartment at 139, 100 Kavanagh Street, Southbank was rented by you,
Li, for a period of 28 nights from 13 April 2016.  You paid $4,787 in cash for that lease.  The false identification used for the purposes of the rental was the same as that which was used to collect the consignments.

10On 27 April 2016 you, Li, also rented an apartment at 1808, 22 Dorcas Street, South Melbourne, using that same false identification.  It was at this apartment that you, together with Jin, were arrested on the evening of 6 May 2016. 
You, Jin, were also found to be in possession of a false driver's licence.

11You, Chieh Chang Lee, together with Yi Feng Chen, were arrested at the Crown Towers Hotel on 19 May 2016.  At the time of your arrest a piece of paper with the handwritten notation "Tai Ming Quo" with the same mobile number written on the consignments was found inside a red sports bag.  The paper had multiple fingerprints from you, Lee, and one fingerprint belonging to Chen.  You, Lee, participated in an interview with police in which you effectively claimed you had no knowledge of the importation.

12I turn to consider the role of each of you.  The Crown contended that you,
Li, played an active and significant role in the offending.  Your conduct included the following.  Renting the three addresses, namely Kavanagh Street where the packages were opened.  Corella Street where the packages were ostensibly destined and Dorcas Street, where you were arrested.  I note that the Corella Street property was rented 12 days before these three consignments arrived in Australia. 

13You, Li, were active in the intercepted telephone calls and messages which related to the consignments.  You obtained the motor vehicle that was used to pick up and move the consignments.  You collected the consignments from ABF Customs House and took them to Kavanagh Street and you were the one who spoke with Customs officials and produced the false identification. 
You attended at Bunnings with the others to purchase tools and equipment for use in accessing the shock absorbers.  You returned to Kavanagh Street and with the other offenders opened the shock absorbers in an attempt to possess what you believed was inside.  Significantly, your involvement spans at least 12 days before the attempt to possess the drugs was made on 6 May 2016. 

14The role played by you, Han Jin, was characterised by the Crown as being a slightly lesser role than that of Mr Li.  You were arrested by investigators in the company of Li on the evening of 6 May 2016 at the Dorcas Street apartment. 
You had attended that morning at Customs House in the company of Li to collect the packages. You appear to have been driving the car,  you did not speak with any of the ABF officers.  You helped carry the packages up to the 13th floor of the Kavanagh Street apartment and you remained with Mr Li and the others until you all left to attend Bunnings.  You were not seen in any of the CCTV footage at Bunnings and it appears that you remained in the car whilst the others purchased the tools that were used to access the shock absorbers.  You were present at the Kavanagh Street apartment when the shock absorbers were taken apart. 

15On 27 April 2016, Li supplied a contact phone number which was subscribed under your name at an address in Queensland.  Your telephone service was used on 29 April 2016 to make enquiries about the progress of the consignment and to also track the consignment.  On 5 May 2016 you were recorded on a lawfully intercepted telephone call engaging in a coded conversation with an unidentified female.  During that call there was mention of using a scale to "weigh a substance and give it to a person from Beijing who was waiting for it". 

16In relation to you, Chieh Chang Lee, the prosecution contended that your role encompassed the following.  Attending at Kavanagh Street on 6 May 2016 immediately prior to the consignment arriving at the same location.  Attending at Bunnings with other offenders to purchase tools and other equipment to use in opening the shock absorbers.  Returning to Kavanagh Street with other offenders for the purposes of opening the shock absorbers in an attempt to possess what you believed was inside.  Although, the prosecution cannot say what acts were actually performed by you when the shock absorbers were opened.

17I note that there is no evidence that you had any involvement in this offending other than on 6 May 2016, save for the piece of paper located at the time of your arrest on 19 May 2016 with the consignee's details and your fingerprints.  In the absence of further evidence, I cannot, and do not, find that you played any greater role because of the presence of that document. 

18Having identified the role that each of you played in this offending I need now to turn to your personal circumstances. 

19Chuan Yang Li, you were born on 10 August 1992, you were 23 at the time of the offending and you are now 25 years of age.  You were born and raised in Taiwan where your parents still reside.  Significantly your mother has travelled to Australia periodically to visit you and was present in court to support you at the plea hearing.  It is important, in my view, that despite your offending and the anxiety it has caused your family that your family are still very supportive of you.  It is a factor which enhances your prospects for rehabilitation.

20You have, what your counsel describes, as an uneventful upbringing. 
Your parents ran a rice processing business in Taiwan.  You have one sister who is currently living in Queensland.  You spent some of your secondary schooling in Taiwan and in 2007 and 2008 you spent 18 months of high school in New Zealand.  In 2008 you arrived in Brisbane to continue your studies.  You initially attended language school and moved on to enrol in a Certificate IV in Business from Martin College.  Afterwards you then completed a Diploma in Business from the same institution.  In 2011 you commenced a Bachelor of International Business at Queensland University of Technology. 

21You left university before completing that course because your parents business in Taiwan failed and they were unable to continue to support you financially.  You returned to Taiwan to assist your family for a time but in 2015 again returned to Australia on a working holiday visa and worked in various restaurants in Brisbane as a chef.  You had hoped to return to your studies. 

22Your counsel told the court that in the setting of these financial difficulties you were approached and agreed to become involved in this offending.  You were taken into custody on 6 May 2016 and pleaded guilty after a limited contested committal.  As I have already remarked, fortunately you continue to have the support of your parents and your sister, who now resides in Brisbane and has visited you on occasions.  Significantly you have no prior convictions in this country or in Taiwan. 

23Mr Hallowes SC, who appeared together with Ms Clark on your behalf emphasised your lack of criminal history, the support of your family, your relative youth and your plea of guilty.  It was suggested that you had been as productive as you could be whilst remanded at Fulham Prison undertaking a number of courses and working in the garden.  It was also contended that your time in custody would be more onerous by reason of the fact that you will, according to your counsel, almost certainly be deported on your release.  It was suggested that this will mean that you will lose the opportunity to build a life in this country.

24So far as your role was concerned, it was submitted that you were effectively a foot solider answerable to others higher up in the drug hierarchy.  Some of the telephone intercept material suggests that you were receiving instruction and that you were not treated with any particular deference.  Mr Hallowes acknowledged you had played an important role in this offending but suggested that the fact that you had performed tasks that made you vulnerable to detection was indicative of your being a lower level actor in this enterprise.

25I turn now to you, Han Jin.  You were born in northern China on 25 March 1995 and are now 23 years of age. You were 21 at the time of the commission of this offence.  You have been in custody also since your arrest on 6 May 2016.  You are an only child.  Your parents live in relatively modest financial circumstances. 
Your father, until falling ill, worked as a labourer and your mother in a restaurant.  Having worked hard throughout their lives and saved what they could they provided you with some funds that enabled you to travel to Australia in 2013 to study.

26Over the next two years you studied English and then in 2015 entered a hotel management course at Griffith University in Queensland.  I was told that your ambition in life was to work in managerial positions in the hospitality industry in luxury hotels.  Unfortunately towards the end of 2015 your father became unwell and your family were unable to provide for you with any extra funds.  It seems that soon afterwards the Korean restaurant in which you had been working as a kitchenhand to support yourself, closed down.  You stopped studying but remained in Australia in the hope of obtaining further work.  Those circumstances provided the setting within which you appear to have become involved in this offending.  There is no further evidence as to how that came about.

27As to the sentencing submissions made on your behalf, you have no prior convictions either in this country or in Taiwan.  Although a limited contested committal took place the prosecution accepts that your plea of guilty was reasonably timely and having regard to the submissions made by Ms O'Brien on your behalf, I am prepared to accept that you are remorseful for engaging in this offending.  She also relied on your youthfulness and your apparent depressed state.  Your time in custody has clearly been difficult.  You have no family or support in this country and your English language skills are still quite limited.  You have refused to undertake a mental health assessment because of the stigma that might attach to doing so.  You have been working at Fulham Prison and have recently commenced a computer course in an effort to use your time constructively, which is encouraging.  Nonetheless I accept that you are isolated and the conditions of your imprisonment will be burdensome.

28Chieh Chang Lee, you were born in Taiwan on 17 September 1979 and are now 38 years of age.  You were 36 at the time of the offending.  Your parents operate a very small family run hostel in Taiwan and you have one younger sister.  Your education was directed towards obtaining trade qualifications and ultimately you qualified as a car mechanic.  You completed two years of military service in Taiwan and thereafter worked for eight years as a mechanic.

29In 2005 you married and there are three children of that marriage aged 11, six and four.  Your wife had originally worked as a salesperson and after the birth of your second child she returned to work operating a stall at a night market.  Neither you nor your wife, were able to earn much income and your family struggled financially.  In 2015 your wife was diagnosed with breast cancer.  Medical treatment was expensive and the loss of your wife's income exacerbated your financial problems. 

30I was told that you travelled to Australia in March 2016 for the purposes of trying to obtain employment that provided a higher income.  You arrived in Queensland and undertook some labouring work and came to Melbourne where you thought there might be better work opportunities.  I was told that another offender aware of your wife's situation and your financial problems offered you the opportunity to become involved in this offending and you agreed to do so.  Again, there is no further evidence as to what that entailed.

31As indicated you were arrested on 19 May 2016 and have remained in custody since.  Significantly your wife's condition deteriorated after you went into custody and she passed away on 11 September last year.  Three heartfelt statements from your parents written in Mandarin and translated for the purposes of your plea hearing, describe the tragic circumstances in which you now find yourself.  I am told that you had been able to ring your wife on most days after she went into palliative care but not being able to be by her side when she passed away, I accept, must have been extremely difficult to bear. 

32As your wife's condition deteriorated your three daughters were taken into the care of their grandparents who have also endured considerable hardship as a result of your incarceration and the death of their daughter-in-law.  Your children were forced to shift schools and move to a smaller island to live with your parents.  Fortunately they appear to have settled there reasonably well.

33Your father speaks of the shame you have brought on your family and the burden you have placed on both of your parents.  I am satisfied that you must feel this acutely.  It constitutes a form of punishment for what your counsel described as "all brought about by your own stupid behaviour".  I will take those matters into account on that basis.

34As to the submissions on sentence Mr Dickenson QC, who appeared on your behalf with Mr Howson, made the point that before you had been arraigned in this court your former co-accused, Mr Chen, was acquitted at trial.  The evidence against each of you was very similar and, whilst it was acknowledged there was some differences, it was submitted that a plea of guilty in the face of Chen's acquittal was powerfully indicative of an acceptance of responsibility and remorse on your part.  Mr Dickenson QC further argued that a preparedness to plead guilty in your circumstances was also indicative of positive prospects of rehabilitation.  I accept those submissions.

35Whilst I have readily accepted that the particular hardship you have endured in custody mitigates your position I am not satisfied that exceptional circumstances have been established such as to justify hardship to your family constituting a mitigating factor.  As Mr Gullaci pointed out, your children, whilst in difficult circumstances, are being looked after adequately by your parents.

36Mr Gullaci in his submissions, on behalf of the Crown, referred me to quite a number of decisions for the purposes of providing guidance as to the identification of applicable sentencing principles and assist as yardsticks that inform me as to what might be the appropriate sentencing range.  I am to bear in mind however that current sentencing practices do not set boundaries on what a court may reasonably impose as to sentence.

37Mr Gullaci referred me to the decision of DPP v Masange [2017] VSCA 204, and to the discussion at paragraph 102 and following as to case comparators including the restatement of the relevant principles helpfully summarised in R v Nguyen and Pham [2010] 2 A Crim R 106 [126]-[128].

38I note in particular the following matters. First, as a matter of common sense it should be inferred, unless there is evidence to the contrary, that a person attempting to possess a large quantity of an imported drug does so for profit.  There is no evidence to the contrary in this case.  Second, the sentence I impose here must signal to would be drug importers and traffickers that the potential financial rewards to be gained will be neutralised by the risk of severe punishment.  Third, the difficulty in detection of these offences and the terrible social harm they cause demands a stern response from the courts.  These are important matters that I must take into account.

39On the question of the relevance of the possibility of deportation, Mr Gullaci helpfully surveyed the authorities and referred me in particular to Priest JA’s judgment in Schneider v The Queen [2016] VSCA 76. He submitted, and I accept, that the prospect of deportation is a proper matter for consideration in determining the appropriate sentence. In the case of you, Li, and you, Jin, the prospect of deportation is a matter of some moment because you have both spent quite some time in this country. I will therefore give the uncertainty associated with your predicament some weight in fixing sentence. In the case of you, Lee, I do not think this is a factor of importance.

40In respect of you, Chuan Yang Li, I accept the Crown submission that you played an active and significant role in this offending.  I do not accept that you were simply a foot solider.  It may be that you were subservient to others, but your role extended to preparation for the importation at least 12 days before picking up the consignments.  You rented the relevant premises, you coordinated the collection and attempted access to the drug.  You took a leading role.

41You, Han Jin, also played an active and significant role although less so than Li.  On 27 April 2016 Li supplied a contact phone number which was subscribed under your name at an address in Queensland.  Your telephone service was used on 29 April 2016 to make enquiries about the progress of the consignment and to also track that consignment.  You attended with Li to collect the drugs, you assisted in other ways such as driving to Bunnings to purchase tools to access the shock absorbers and you were present inside the Kavanagh Street apartment at all relevant times.

42The personal circumstances of you, Li and you, Jin, are generally similar.  Importantly your lack of prior convictions, your relative youthfulness and your pleas of guilty and in your case, Li, the support of your family all augur well for your rehabilitation.  For each of you the service of your sentence will be difficult given the uncertainty and isolation involved.

43I am satisfied that it is appropriate that the sentence that I will now impose makes some allowance for the lesser role that you, Jin, played in the commission of the offence. 

44Turning to you, Chieh Chang Lee, the role you played was confined to being present at the Kavanagh Street apartment on 6 May 2016, attending at Bunnings with the others and returning to the apartment where the shock absorbers were actually accessed.  It was submitted and it was accepted by the Crown that your case should be treated more leniently than your co-offenders principally because of your lesser role, your compelling personal circumstances and the making of your plea in the face of Chen's acquittal.  The sentence I now impose on you will reflect those matters.

45Chuan Yang Li, on the charge of attempting to possess a commercial quantity of an unlawfully imported border control drug I sentence you to a term of imprisonment of eight years and I will fix a non-parole period of five years.

46Han Jin, on the charge of attempting to possess a commercial quantity of an unlawfully imported border control drug I sentence you to a term of imprisonment of seven years and three months and I will fix a non-parole period of four years and three months.

47Chieh Chang Lee, on the charge of attempting to possess a commercial quantity of an unlawfully imported border control drug I sentence you to a term of imprisonment of five years and I will fix a non-parole period of two years and six months. 

48I will make declarations under s.6AAA of the Sentencing Act (Vic) as follows. That but for your plea of guilty, Chuan Yang Li, you would have been sentenced to a term of imprisonment of ten years with a non-parole period of seven years. That but for your plea of guilty, Han Jin, you would have been sentenced to a term of imprisonment of nine years and three months' imprisonment with a
non-parole period of six years and three months.  That but for your plea of guilty, Chieh Chang Lee, you would have been sentenced to a term of imprisonment of seven years with a non-parole period of four years and six months.

49I will also declare, pursuant to s.18 of the Sentencing Act (Vic) that you, Chuan Yang Li and you, Han Jin, have both served 672 days by way of pre-sentence detention. I will further declare that you, Chieh Chang Lee, have served 659 days of by way of pre-sentence detention.