Director of Public Prosecutions v Li

[2017] VCC 1370

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00336

THE QUEEN

v

YU-AN LI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF SENTENCE:	21 September 2017
CASE MAY BE CITED AS:	DPP v Li
MEDIUM NEUTRAL CITATION:	[2017] VCC 1370

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms O. Go
For the Accused	Mr T. Wraight

HIS HONOUR: 

1Yu-an Li, on 12 September 2017 you pleaded guilty to one charge of attempt to possess a commercial quantity of an unlawful imported border-controlled drug.  This offence has a maximum penalty of life imprisonment.  On that day, you were remanded in custody for plea on 18 September 2017.  You have been in custody on remand on this charge since your arrest on 18 August 2016. 

2The prosecutor tendered the summary of prosecution opening for plea.  Are you - is this being interpreted for you?

3INTERPRETER:  Yes, um, I'm note-taking so ‑ ‑ ‑

4HIS HONOUR:  So are you interpreting for the ‑ ‑ ‑

5INTERPRETER:  Yes, yes, um, yes, I will ‑ ‑ ‑

6HIS HONOUR:  Madam, just as I am going along, if you can just say it to her what I am saying.  Do you understand?

7INTERPRETER:  Yes.

8HIS HONOUR:  Yes, thank you.  The prosecutor tendered a summary of prosecution opening for plea.  This was Exhibit A in the proceeding.  The charge arises out of an importation of a parcel from Taiwan to Australia.  The parcel originally contained, 1714.4 grams of pure methamphetamine when intercepted by Australian Border Force officers on 14 August 2016.  The parcel also contained food items.

9The original parcel was addressed to you Li Yu-An of 19 Main Road, Campbells Creek in Victoria.  On 16 August 2016, the Australian Federal Police took possession of the parcel and had the crystalline substance in the parcel examined and analysed. 

10The pure weight of the substance was 1714.4 grams of methamphetamine.  That amount is 2.28 times the amount of the commercial quantity for a prohibited drug.  The Federal Police then mounted a controlled delivery of the parcel to you.  A listening device was installed in the parcel.  Your residence was placed under surveillance.  The package was delivered to your premises when you were still at work at Don Smallgoods in Castlemaine.

11You arrived at your home at approximately 3.46 pm on 18 August 2016.  You made a phone call to a person known as Ling, the person who sent you the parcel.  At 4.30 pm, the Australian Federal Police executed a search warrant and arrested you.  You did not speak English and required the assistance from a Mandarin interpreter.

12At the time of the police search, the parcel was found in your room.  It had not been opened by you.  There were two fingerprints of yours found on the outside of that parcel.  In the course of the record of interview with police, you stated that you did not know that the package contained drugs, that the package was for a friend and you had been told that it contained food and that you had been told to hold the package until you received instructions as to who to give it to.

13The Australian Federal Police also seized your mobile phone on that day.  On 19 August 2016, Federal Agent Campbell took photographs of what she believed to be the relevant conversation between you and a Bill Wu, spelt
W-U, on the Facebook Messenger application.  This conversation occurred on
18 August 2016, the day of the controlled delivery to you. 

14The conversation was subsequently translated and in part the conversation read as follows:

15"Have the daily necessities arrived yet?  I need to keep my friend posted, he has been asking me.  He does not have regular working hours, the freight delivery might miss him.  It has been a while since we last contacted.  Need to ask a favour.  Please inform me when it arrived, I will ask my friend to fetch it".

16That communication is from Wu to you.  The prosecution and you accept that after you returned to your Campbells Creek home and had seen the parcel, you contacted him by phone and asked about the name and address on the parcel.  In the course of that conversation, you were told that there were illegal things inside the parcel.

17The prosecution accept that any knowledge amounting to criminality was derived only during the phone call with Ling and not before.  At the time when you first came into physical possession of the parcel, you had an innocent state of mind. 

18In the short window of time between returning home from work and taking custody of the parcel and the police executing the search warrant your criminality had crystallised.  I assess that you are a “patsy” for other far more devious and criminally liable drug traffickers who have tricked and misled you into receiving the parcel in the first place.  Nevertheless, you satisfy the fault element of recklessness in this case. 

19I accept that you did not have actual knowledge of the quantity or the type of drug involved in the offence.  That does not amount to a defence to the charge but is an indicator of your low moral culpability for this offence.  Further, there is no evidence of what financial reward or gain you were to receive for this offending.  It can be assumed there is some financial benefit to you but no more than that.

20The police have had access to all your financial dealings in Australia and there is no evidence of any other unexplained wealth or financial advancement outside of your earnings from your personal exertion on a 417 visa.

21I turn to your personal circumstances. 

22You are now 25 years old.  At the time of the offence, you were 24. 
You originally come from Taiwan.  Your parents are alive but separated, and live in Taiwan.  When you were 12 or 13 years old, your parents separated and you moved to then live with your maternal grandmother until you were age 16.  You completed Year 12 when you were aged 18.

23You work in various administrative roles in the hotel industry and were then married at age 20.  You have a daughter aged six years old and a son who turns five next month.  Your two children live with your in-laws in Taiwan.

24Your husband and you came to Australia in April 2015 on a 417 visa. 
You worked around Australia and returned to Taiwan in the early part of 2016.  You extended your 417 visas and both returned to Australia in April 2016.  That was the last time you have seen your children.

25You and your husband settled in to work at Don's in Castlemaine and lived locally.  In July 2016, your husband returned to Taiwan to see your children and has settled the eldest child into her first year of school.  The children were then living with your husband’s parents.

26On 18 August 2016, you were arrested and have been in custody since that day.  On 10 September 2016, tragically, your husband died in a transport accident in Taiwan.  You were unable to go to his funeral and have had to grieve for your loss in the isolated comfort of a prison.

27You have little English and rely on other Mandarin speaking inmates for human communication.  I have noted the report of Jessica Krummel from the WestCASA dated 30 August 2017.  It was Exhibit 2 on the plea.  You have been undergoing counselling sessions for grief and loss and the separation from your young children and family in Taiwan.

28Whilst you have been in custody in Dame Phyllis Frost centre, you have undertaken courses in food hygiene, workplace safety, elementary English, managing your sleep programs, managing your emotion and worry, managing loss and change programs.

29You have no prior criminal history either in Taiwan or here in Australia. 
You have been a hard and consistent worker since you left school.  Your personal circumstances are properly described as exceptional hardship given the tragedy of your husband's death and the isolation in prison due to the language barrier and the separation from your young children.

30I turn to sentencing considerations.

31The most significant consideration when sentencing a federal offender, such as yourself, is s.17A of the Crimes Act which provides that a court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case.

32You have pleaded guilty to a charge that carries a penalty of life imprisonment.  In cases of drug importation or attempted drug importation, general deterrence is to be given chief weight in sentencing.  The authorities set out that stern punishment will be warranted in most cases to advance the purposes of general deterrence.

33In such cases, matters or factors personal to an offender are thus given less weight than might otherwise be appropriate.  In your case, and based on the accepted case against you, when a proper assessment of your involvement in this crime is undertaken, the degree of moral culpability attaching to your role in the overall involvement in the drug smuggling enterprise is at the lowest end. I have dealt with that particular issue in the circumstances of the offending part of these reasons. 

34I find that whilst general deterrence is a significant sentencing consideration that you are not an appropriate person to visit a significant sentence on due to your low moral culpability and the exceptional circumstances peculiar to you which amount to hardship requiring a court to exercise mercy to achieve a just sentence in all the circumstances of this case.

35Section 16A of the Crimes Act - Commonwealth Crimes Act 1914 sets out the matters I must take into account when fixing a sentence for your offending.  The amount of the drug to be imported was 2.28 times the commercial quantity for methamphetamine.  There is no evidence that you had any idea and knowledge about the quantity or the type of the drug and it is clear on the evidence that you never opened the relevant parcel.

36As a matter of common sense, it could be inferred you were to profit from this importation but there is no evidence of any profit to you or promise of payment to you.  You are young and have a previous good character.  In drug importation cases, these two factors carry less weight as mitigatory factors.  Nevertheless, when taking into account and the actual circumstances to your offending, youth and good character have a proper part to play in the sentencing calculus in your case.

37I have to assess the relevance of contrition and your plea of guilty in this case.  You pleaded guilty just before the trial of this matter.  You conducted a committal hearing.  I accept your plea of guilty is significant and was not simply a recognition of the inevitable.  Your plea has been motivated by a willingness to facilitate justice and has the objective utilitarian value of saving the community the cost of the trial.

38Your plea, I accept, is a sign of your remorse for your offending but undoubtedly is overwhelmed by grief attended upon your family circumstances.  You denied any involvement in the course of the record of interview so you received little assistance under the heading of "Co-operation with the law enforcement authorities" in the sentencing process. 

39The specific deterrent consideration in sentencing you is not significant.  I find you were duped into this criminal activity and that you have well and truly learnt your lesson and will not reoffend.  I have to assess what, in all the circumstances of this case, is adequate punishment.  I take into account the life imprisonment penalty, your moral culpability for this offending and your actual role in the drug importation when fixing an adequate punishment.

40The factors of specific and general deterrence are bound up in this assessment.  As I said before, you are young and of previous good character.  I assess your prospects of rehabilitation as very good.

41I was referred to a table of cases by the learned prosecutor.  None of the cases in the table of comparative cases was on all fours with your case. Indeed, I find that the combination of the role of the offender in this case, that is you, and the exceptional hardship factors peculiar to you make this particular case a unique sentencing conundrum.

42At the time of the plea, Ms Li, you had spent a total of 13 months in imprisonment.  I have decided that a total term of imprisonment of 14 months is the appropriate.  I am now going to ask counsel to assist me in an appropriate way in which to draft the order to reflect that you have served - you will serve 14 months imprisonment commencing from the date of 18 August 2016.

43The straight term of imprisonment without parole satisfies the requirements of general deterrence and just punishment in the extremely unusual circumstances of your offending and your personal circumstances in this case.

44Madam prosecutor, how do I put that into a formal order?

45MS GO:  Your Honour, so Your Honour does not want to impose a recognizance for this order?

46HIS HONOUR:  No.  I just want to be clear, what I was concerned about was this:  I cannot backdate a sentence.

47MS GO:  Yes.

48HIS HONOUR:  I do not find that it is necessary to have a recognizance release order and that is why I have ordered it a straight sentence of 14 months.

49MS GO:  Yes.

50HIS HONOUR:  But I want to be clear that she has credit for the time she has already served in prison.

51MS GO:  Well Your Honour, Your Honour can impose the sentence of
14 months.

52HIS HONOUR:  Yes.

53MS GO:  And then just recognizance the 399 days.

54HIS HONOUR:  Declare the days, yes.

55MS GO:  And Your Honour has already stated the reasons why in your review and RRO is not appropriate in this case.

56HIS HONOUR:  Yes, yes.  Thank you.  Do you have anything to add to that
Mr Wraight?

57MR WRAIGHT:  No, Your Honour, I think that makes sense to me.

58HIS HONOUR:  So formally, on the charge you are - stand up - you are sentenced to 14 months imprisonment.  I declare that you have served and I better get the exact number of days?

59MS GO:  399 days.

60HIS HONOUR:  I declare that you have served 399 days pre-sentence detention.  And that concludes this matter.

61MS GO:  Your Honour, s.6AAA statement?

62HIS HONOUR:  Yes, thank you.  Thank you very much.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years with a two and a half year minimum.  So your plea of guilty has saved you a lot of time. 

63MR WRAIGHT:  As the court pleases.

64HIS HONOUR:  Yes.  I do not know what will happen with you Ms Li.  I anticipate at the end of the 14 months in imprisonment, you will be taken to a detention centre and you will probably be deported back to Taiwan.  Good luck with your children.

65MS GO:  Your Honour, just confirming that the 14 months imprisonment starts today.

66HIS HONOUR:  Yes, but that is right.  That is the order.

67MS GO:  Yes.

68HIS HONOUR:  But the effect is she has already served some of it.

69MS GO:  Yes.

70HIS HONOUR:  Yes.

71MS GO:  PSD reckoned.

72HIS HONOUR:  Yes.  I just want to - just before she - you can a take a seat just for the moment thanks.  Right, yes, in Commonwealth I do have to declare a commencement date.  So it is today, which is 21 September 2017.  I am just waiting for this to print up, I want both counsel to check it to make sure it reflects what I have ordered. 

73MR WRAIGHT:  Your Honour just so there is no uncertainty for anyone that may be reading this, it is s.19(A)(C), sub-s.4 which allows you to ‑ ‑ ‑

74HIS HONOUR:  Just hang on, 19 ‑ ‑ ‑

75MR WRAIGHT:  Capital A, C.

76HIS HONOUR:  Yes.

77MR WRAIGHT:  Sub four which is what Your Honour has done but just for the transcript, to qualify perhaps, that Your Honour has made that order pursuant to that section that you may decline to impose a recognizance release order where he is otherwise required to do so which it would have been in this case.

78HIS HONOUR:  Yes, yes.

79MR WRAIGHT:  Having regard to the nature and circumstances of the offences and to the antecedents, et cetera.

80HIS HONOUR:  Yes.

81MR WRAIGHT:  And you have done that.  And I - that just confirms that that is the section that you - gives you that power to do that.

82HIS HONOUR:  Yes, yes, thank you.

83MR WRAIGHT:  Yes.

84HIS HONOUR:  Thanks for that.  Yes, I will just hand that order down.  That is just a draft order.  If you just check it please and assure me that that covers what I was - does that satisfy?

85MR WRAIGHT:  Your Honour, we are satisfied that that reflects Your Honour's order.

86HIS HONOUR:  Thank you.  Thanks Ms Go.  In that case, I will print, confirm it. 

87ASSOCIATE:  Yes, it is not confirming is it?  All right.  We have got technical - a similar ‑ ‑ ‑

88HIS HONOUR:  Right. 

89ASSOCIATE:  I will send the ‑ ‑ ‑

90HIS HONOUR:  Who is running this court?  The computer or ‑ ‑ ‑

91ASSOCIATE:  Yes, the computer.

92HIS HONOUR:  ‑ ‑ ‑ those that appear here and those who sit here?

93ASSOCIATE:  Yes, I will have to send counsel a copy.

94HIS HONOUR:  Right.  For some reason or other, we cannot see to confirm that order on the computer but that is the order that the court - when the order is confirmed, I will make sure that Corrections get a copy of it so that the prisoner can be moved.

95MS GO:  Your Honour, perhaps just to be on the safe side - if it could be noted in the record of orders made that pursuant to that particular section ‑ ‑ ‑

96HIS HONOUR:  Yes, that I have pronounced the reasons under s.19(A)(C), sub-s.4.

97MS GO:  Yes, yes, Your Honour.

98HIS HONOUR:  Yes.

99MR WRAIGHT:  Yes, Your Honour.  It might make it complete.

100HIS HONOUR:  The parties will get a -when I revise the sentencing remarks, you will get - I will send them to you to make sure you both get it.

101MR WRAIGHT:  Thank you, Your Honour.

102HIS HONOUR:  Yes, they are not here.  I will just step out the back.  The barristers not here, so - Mr Wraight, Ms Go, thanks very much for your assistance.

103COUNSEL:  Thank you, Your Honour.

104HIS HONOUR:  You can remove the prisoner, thank you very much.  And thanks very much, Madam Interpreter, for your help. Thank you.

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