Director of Public Prosecutions v Lin

[2023] VCC 1677

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01956

DIRECTOR OF PUBLIC PROSECUTIONS

v

YUXIN LIN

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023
DATE OF SENTENCE:	13 September 2023
CASE MAY BE CITED AS:	DPP v Lin
MEDIUM NEUTRAL CITATION:	[2023] VCC 1677

REASONS FOR SENTENCE
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Subject:Criminal law – sentence  

Catchwords:              Guilty plea – one charge of trafficking in commercial quantity of 1,4-Butanediol and a related summary offence of dealing in $26,800 suspected of being the proceeds of crime – plea entered following sentence indication – offender is a 22 year-old Chinese national on a bridging visa – no prior criminal history – youthful offender – burden of imprisonment considerable – good prospects of rehabilitation – general deterrence, denunciation and community protection paramount sentencing considerations

Legislation Cited:      Gregory (a pseudonym) v. The Queen (2017) 268 A Crim R 1; Azzopardi v. The Queen [2011] VSCA 372; Guden v. The Queen [2010] VSCA 196; Allouch v. The Queen [2018] VSCA 244; Ellis v. The Queen [2018] VSCA 221

Sentence:                  Total effective sentence of 2 years, 8 months’ imprisonment with a non-parole period of 2 years and three months’ imprisonment fixed

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Botros	Office of Public Prosecutions
Victoria
For the Accused	Mr T. Smurthwaite	Stary Norton Halphen

HER HONOUR:

1Yuxin Lin, you have pleaded guilty to one charge of trafficking in commercial quantity of a drug of dependence contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which is 25 years' imprisonment.

2You have also pleaded guilty to a related summary offence of dealing in property suspected of being the proceeds of crime, being cash in the sum of $26,800 contrary to s 195 of the Crimes Act 1958, the maximum penalty for which is 2 years’ imprisonment.

3These charges arise from a search of your premises in Burwood on 11 March 2022 where police located a 10-litre drum containing 9.4 kilograms of 1,4-butanediol in in a secured locker and a significant amount of cash in a locked storage box. At that time of this offending, you were 22 years old and had been living in Australia on a bridging visa for four years. You have no prior criminal history.

Circumstances of offending

4In January 2022, police investigators became aware of shipments of 1,4‑Butanediol being imported from China to Australia through Australia Post parcel lockers.

5On 1 February 2022, at 4.36 pm, you and another male drove your blue Audi A4 sedan to Woolworth's Shopping Centre in Glen Huntly where Australia Post parcel lockers are located. The two of you retrieved a package from the locker, and placed it in the boot of your car, before driving away.

6Australia Post records show that on 1 February 2022, a parcel addressed to 'Young Rok Safi' with a phone number ending in 084 was collected from the Glen Huntly parcel lockers. That package weighed 17.375 kilograms and was connected to a 'MyPost' account with a phone number ending in 593.

7On 14 February 2022 at approximately 3.30 pm, you and the other male drove to the South Melbourne Post Office in your blue Audi A4 sedan. CCTV footage shows the unknown male collecting a package. Australia Post records indicate the parcel weighed 10.9 kilograms and was linked to the same 'MyPost' account.

8You are not charged with any offence arising from these events in February 2022. Rather, they are agreed facts that provide context to your offending on 11 March 2022.

9At 6.30 am on 11 March 2022, the police executed search warrants at your Burwood address. The address is a share house, where you lived in Room 102, which was locked and secured when the police arrived. You were present at the address and were arrested.

10Following a search of the premises, the police located a 10-litre drum in a closed and secured locker, containing clear liquid. Subsequent analysis of the seized item confirmed the liquid was 1,4-Butanediol weighing 9.4 kilograms. This is the subject of Charge 1 – trafficking in a commercial quantity of a drug of dependence.

11Police also located $26,800 in Australian currency in a locked and secured storage box at the bottom of your clothes closet. This is the subject of the related summary offence Charge 2 – dealing with property suspected of being the proceeds of crime.

12A mobile phone was found in your bedside table and was subsequently analysed. The mobile phone in your possession was found to have received calls and messages from the mobile phones ending in numbers 593 and 048 between 24 February 2022 and 11 March 2022.

13As further context to this offending, the police also located two credit cards in other people's names and a fraudulent NSW driver's licence with your photograph but in the name 'Junhong Zhong'. The police also searched your car and located a lease agreement for a storage facility in the name 'Junhong Zhong' in Burwood. A search of that facility was conducted, and police located and seized 63 boxes of Lianhua Qinqwen, an ingredient of which is Ephedra, a precursor ingredient used in the production of amphetamines. To be clear, you are not charged in relation to these matters.

14You were interviewed by police on 11 March 2022 remanded in custody on that date.

Procedural history

15The procedural history of this matter has some relevance to your sentence.

16You were first charged with eight separate offences, including four counts of trafficking in a commercial quantity of drugs of dependence.

17Following a committal hearing in the Magistrates’ Court in October 2022, the matter was listed in this Court on 20 February 2023 for a pre-trial application to exclude evidence of answers you gave in your record of interview. On 4 May 2023, I ruled the evidence of the record of interview inadmissible on the basis that investigating police failed to comply with the requirements of s 464C of the Crimes Act 1958 by not deferring the interview for a reasonable period to allow you to obtain legal advice. The asserted admissions made in the interview were therefore excluded pursuant to s 90 of the Evidence Act 2008.[1]

[1]DPP v Lin (Ruling) dated 4 May 2023, unpublished.

18Consequent upon my ruling, the matter was adjourned for further resolution discussions. On 15 August 2023, the matter was listed before me for a sentence indication hearing in respect of the charges for which you are now to be sentenced. Having accepted the sentence, I indicated I would impose upon a guilty plea being entered to these charges, the matter was listed for a plea hearing before me on 12 September 2023. On arraignment, you entered a guilty plea to the two charges.

19I return to the relevance of this delay later in my reasons.

Nature and gravity of offending

20The offence of trafficking in a commercial quantity of a drug of dependence is undeniably serious offending. This is reflected in the maximum penalty of 25 years' imprisonment fixed by the legislature. In addition, Charge 1 is a Category 2 offence for which a custodial sentence is mandated under Division 2 of Part 3 of the Sentencing Act 1991 unless the criteria under s 5(2H) are met. Such provisions reflect the intention of Parliament that this offending is to be viewed as objectively serious.

21As the Court of Appeal observed in Gregory (a pseudonym) v The Queen[2], given the sentencing regime for trafficking offences is quantity-based, the quantity of the drugs possessed for a trafficking purpose is a highly relevant sentencing consideration. In other words, all other things being equal, a greater quantity trafficked indicates a more serious offence. In this case, it is relevant that the quantity of 1,4 Butanediol in your possession for a trafficking purpose was 9.4 kilograms, which is over four times the threshold of 2 kilograms for a commercial quantity of that drug of dependence.

[2](2017) 268 A Crim R 1, [2017] VSCA 151 (‘Gregory’)

22Given the quantity involved, this could not be described as a low-level example of offending of this nature.

23However, quantity is not the sole or determinative factor going to the seriousness of your offending. In this case, you have pleaded guilty to possessing the drugs for a trafficking purpose on one day only. However, it is clear that your involvement in the enterprise, with at least one other person, extended back to February 2022.

24The nature and extent of the trafficking enterprise is difficult to ascertain, other than to note that the overall enterprise involved some degree of planning and sophistication, involving the use of Australia Post lockers to which consignments were delivered.

25I find, and the prosecution accepts, that your role is likely to have fallen towards the bottom rung of the hierarchy of those involved in this activity, perhaps best described by your counsel as a 'foot soldier'. In making this assessment, I have regard to the fact you drove the other male to collect items from Australia Post on two occasions in February 2022, and of having text or message contact with those connected to the mobile phones associated with the consignments from 24 February 2022 until the date of your arrest. As to the offending on 11 March 2022, you were trusted by those others as a custodian of a significant quantity of 1,4 Butanediol. In addition, you have pleaded guilty to dealing in a significant amount of cash, totalling $26,800, which was suspected of being the proceeds of crime.

26There is no evidence that your conduct was fuelled by any personal addiction to drugs. The only reasonable inference is that your involvement was motivated by the prospect of financial gain for your role. Beyond the cash found in your possession, there is no other evidence of personal enrichment or that you were living a lavish lifestyle borne of any significant profit made by you. To the contrary, you were living in a single room in a share house at the time of your arrest. Nonetheless, your counsel concedes that the prospect of financial reward was the sole motivation for your offending.

27I consider your offending to be below a mid-level example of offending of this kind, although not at the lowest level given the quantity of drugs held in your possession.

28Even accepting the limits of your role, by agreeing to store a drum of 1,4 Butanediol in this quantity on 11 March 2022, it is important to acknowledge that you were willing to play a critical role in broader drug-related undertaking. Without people such as you being prepared to undertake such a role, with all its attendant risks, others involved in illegal drug activity could not operate as they do.

29Drug trafficking operations have a devastating impact on the lives of individuals, families and communities. The need to deter others from participating in any aspect of such serious criminal activity, and to protect the community from its inherently destructive consequences, are paramount sentencing considerations. 

Personal circumstances

30Having discussed the objective gravity of your offending, I turn now to discuss your personal background and circumstances, which also inform my assessment of your moral culpability.

31You were born in the Fujian province of South East China in December 1999 and are now 23 years old. You remain a Chinese national.

32You and a younger sister grew up with your parents in a rural area, where you lived on a small farm, and your father worked in the construction industry. Your parents and younger sister still live in this area in China.

33You attended primary and then secondary school in China, completing the equivalent of Year 10 or 11, with the last two years of study being undertaken living at a school close to your family. You have a girlfriend, also living in China, who you met through friends.

34In 2018, you arrived in Australia on a student visa. You first enrolled in an English language course between 2018-2020, which you ultimately did not pass and then transferred to a Marketing Course in 2021.

35You also worked as a plasterer for a company called ‘Easy Plaster’ that operated in the Richmond/Collingwood area to assist in meeting your living expenses in Australia, while sending some money home to your family in China.

36No psychological or other material has been tendered on your plea, and there is no basis for me to conclude that you suffer any mental health or other impairment that reduces your moral culpability for this offending or otherwise moderates the need for the sentence to operate as a general deterrent to others.

Matters in mitigation

37On your behalf, a number of matters were raised in mitigation of your sentence.

38First and foremost, you have pleaded guilty to these offences. In doing so, you have saved the court and the community the resources associated with a trial and acknowledged responsibility for your offending. Your plea facilitates the administration of justice. Additionally, at a time when delays in the criminal justice system continue in the wake of the pandemic, your plea has heightened utility. You are entitled to, and will receive, a significant sentencing discount in light of your guilty plea in these circumstances.

39Through your plea, you also express a degree of remorse for your offending.

40There was some delay associated with these proceedings leading to the pre-trial ruling in May 2023 followed by a revised Crown position. I have taken this delay into account in moderating the sentence to some degree given the fact you had far more significant charges hanging over your head, not knowing the likely outcome, for some time.

41Secondly, you have no prior criminal history of any kind. You are to be sentenced as a person who is otherwise of good character and are entitled to have that fact reflected in mitigation of sentence.

42Thirdly, your youth remains a relevant factor to your sentence. The law recognises that youthful offenders are more prone to ill-considered and rash decisions, and may not fully appreciate the nature, seriousness and consequences of their offending conduct as understood by older offenders.[3] Moreover, the law prioritises the rehabilitation of youthful offenders recognising the community protection that follows where young people are allowed to go on to lead productive, law-abiding lives. I accept that your age operates to moderate your moral culpability for your conduct to a degree for these reasons. However, the extent to which your age moderates your sentence is limited having regard to the serious nature of this offending. You must have appreciated the wrongfulness of your conduct in the role you played in the drug trafficking enterprise.

[3]Azzopardi v The Queen [2011] VSCA 372 at [34] –[36]

43Fourthly, your time in custody has been onerous for various reasons.

44You were arrested and remanded on 11 March 2022 and were subject to quarantine in isolation at Port Phillip prison for fourteen days. You were then moved to Fulham prison were you have remained on remand ever since. As stated, you were 22 years old at the time of your arrest and are now 23. You are a Chinese national and speak only limited English. Your entire family live in rural China. You have one cousin, with whom you are not close, living in Melbourne. You have had no social visits throughout your time on remand. You have only had telephone contact with your family and girlfriend.

45These factors have combined to make your time in custody particularly isolating and difficult.

46This sense of isolation was especially acute during the COVID-19 pandemic which ran in parallel to much of your time in custody throughout 2022. During that period, conditions in custody were significantly restricted to respond to the risks posed by the pandemic, including periods in lockdown, and limits on educational and other courses. For you, experiencing custody for the first time as a 22-year-old with limited ability to communicate in English, these matters have compounded to add to the burden of your experience of prison.

47On your behalf, it was argued that your time in custody was also made more difficult by virtue of the fact you face the prospect of deportation to China. Although your counsel reports that you had not planned to live permanently in Australia, it was argued that the very real prospects of deportation deprive you of the opportunity of completing your studies here in Australia.

48The prospect that an offender is liable for deportation following sentence may be a relevant sentencing factor.[4] The relevance of an offender’s migration status, and the possibility of deportation, is twofold:

(a)   it may be relevant to the hardship that will be felt by an offender, uncertain as to whether at the end of the sentence, he will be required to uproot himself and return to his country of origin; and

(b)   it is additionally punitive because it destroys the opportunity to settle permanently in this country.[5]

[4]Guden v. The Queen [2010] VSCA 196

[5]Allouch v The Queen [2018] VSCA 244

49Here however, you never intended to reside permanently in Australia, and always anticipated returning to live with your family in China. It could not be argued that the additionally punitive aspect of deportation arises in these circumstances. To the extent that you have been deprived of an opportunity to complete your studies in Australia, I am unable to attach much, if any, weight to this factor given the absence of any supporting evidence of the course/s in which you have enrolled, or of any studies undertaken by you since coming to Australia.

50Finally, I assess you have good prospects of rehabilitation given your age and the absence of any prior criminal history.  In making this assessment, I note that you have no history of drug use or addiction that can elevate the risk of re-offending in cases such as these. In addition, since being remanded you have taken the opportunities available to you to undertake an English language course through Kangan Institute and a Bible study course in custody. In a letter provided by your English teacher at Kangan Institute, Ms Lowe dated 28 April 2023, you are described as a hard-working, enthusiastic student. Undertaking such courses to advance your rehabilitation are to your credit.

Other sentencing considerations

51Given the nature of your offending, the sentencing principles of general deterrence, denunciation and community protection are to be given prominence in the sentencing synthesis.

52In sentencing you for this offending, I must send a clear message to other individuals who contemplate engaging in any aspect of the trade of trafficking drugs, that they do so in the knowledge that, if detected, a significant period of imprisonment will follow.

53I accept however that the need for the sentence to deter you specifically, is mitigated by the absence of any prior criminal history and my finding regarding your positive prospects of rehabilitation.

54On your behalf, Mr Smurthwaite referred me to the Sentencing Snapshots provided by the Sentencing Advisory Counsel for the offence of trafficking in no less than a commercial quantity of a drug of dependence for the period 2016-17 to 2020-21, where it documents sentences of varying ranges between 1-2 years up to 4-5 years. Whilst I have regard to these in a broad sense, they are of extremely limited utility in assessing current sentencing practices given the absence of information regarding the circumstances of the offending and other matters that operate in mitigation of sentence.

55Mr Smurthwaite accepted that a head sentence with a non-parole period fixed was the only available sentence, but submitted that a sentence 'at the lower reaches of the available range' would meet all relevant sentencing considerations, particularly having regard to matters to which I referred in mitigation of sentence.

56Mr Botros for the prosecution, highlighted the significance of general deterrence as a sentencing consideration which eclipses the weight that attaches to the personal circumstances of an offender, including their youth.

57The prosecution submissions also referred to the decision of the Court of Appeal in Gregory,[6] where it was stated that current sentencing practices at the time for CQ trafficking in the upper category of the offence were 'plainly inadequate' and could not be maintained. In making this observation, the Court of Appeal referred to cases where, for instance, the quantity involved approached the large commercial quantity threshold, the offender was in charge of the trafficking business, the business was conducted for a substantial period and the offender pleaded not guilty or had relevant priors. I note that these aggravating features do not apply in your case.

[6]Gregory (a pseudonym) v the Queen [2017] VSCA 151 (‘Gregory’)

58Subsequent to Gregory, the Court of Appeal examined current sentencing practices for the offence of trafficking in a commercial quantity of 1,4-Butanediol in the case of Ellis v The Queen.[7] In that case, the 24-year-old offender was sentenced to four years’ imprisonment for the offence of commercial quantity trafficking in a drug of dependence, and a total effective sentence of 4 years, 6 months for other offending including dealing with property suspected of being the proceeds of crime.

[7]Ellis v The Queen [2018] VSCA 221 (‘Ellis’)

59The offending in Ellis involved the execution of a search warrant at the offender's premises where police located 3.5 kilograms of 1,4-Butanediol in a walk in wardrobe and $3,405 in cash. Although the quantity was considerably lower than here, the Court of Appeal dismissed the appeal given the offender had a relevant prior criminal history including two prior convictions for trafficking in drugs and dealing with the proceeds of crime, including a conviction two weeks prior to this offence, which the Court considered was a 'significantly aggravating circumstance'. Having reviewed other sentences imposed for commercial quantity trafficking in 1,4-Butanediol, the Court observed:[8]

'That review reveals that sentences well below 4 years' imprisonment might be imposed where there are no relevant prior convictions (Bugeja) or where there are unusual mitigating features (Muthia). Otherwise, the sentences range from 2 ½ years to 5 years imprisonment.'

[8]Ellis at [29]; see also Sharbell v The Queen [2018] VSCA 324 at [67]

60In relation to cases decided in this Court, the prosecution referred me to the case of Wang[9], where the offender, aged 27, pleaded guilty to trafficking in a commercial quantity of 1,4-Butanediol in a quantity of 6.9 grams where he would pick up the packages once they cleared customs. In that case, the offender had no prior criminal history, was sentenced to 4 years’ imprisonment with a non-parole period of 30 months. I have had regard to this sentence, while recognising that it was imposed prior to the decision in Worboyes, and the heightened utility that is recognised in a guilty plea entered at this time. Further, that the offender, aged 27, could not have been treated as a youthful offender.

[9]DPP v Wang [2019] VCC 907

61The defence also referred me to a decision of this Court in Bchinnati[10] where the offender was sentenced in 2018 for trafficking in a commercial quantity of 1,4‑butanediol, dealing in $10,000 suspected of being proceeds of crime, whilst on bail. The offender had a prior criminal history. In that case, it was accepted the offender was responsible for moving and concealing the drugs stored in boxes at two storage facilities. A total of 2,026 kgs of I,4-Butanediol was subsequently found at those facilities. The offender in that case was sentenced, following an early plea, to 14 months' imprisonment and a community correction order imposed for the summary offences.

[10]DPP v Bchinnati [2018] VCC 372

62What these two cases demonstrate is that there can be a reasonably wide range of sentences, and that each case invariably turns on its own facts. Other sentences provide some guidance to current sentencing practices, no more.

Sentence

63Balancing the matters to which I have referred, whilst guided by the maximum penalty for each offence, I now sentence you as follows:

64On Charge 1 – trafficking in not less than a commercial quantity of a drug of dependence, you are convicted and sentenced to 2 years, 8 months' imprisonment.

65On Charge 2 – the summary offence of dealing in property suspected of being the proceeds of crime, you are convicted and sentenced to six months' imprisonment.

66I recognise that the offending occurred on the one day and that the two charges arise out of the same factual circumstances. For that reason, I order that the sentence imposed on Charge 2 be served concurrently with the sentence imposed on Charge 1.

67This gives a total effective sentence of 2 years, 8 months' imprisonment. I fix a non-parole period of 21 months' imprisonment before you are eligible for parole.

68Pursuant to s 18 of the Sentencing Act 1991 I declare 551 days of pre-sentence imprisonment reckoned as served under the sentence I have imposed.

69Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your guilty plea, I would otherwise have sentenced you to three years, three months' imprisonment with a non-parole period of two years, three months' imprisonment.

70Finally, I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.

71Thank you.  Can I ask counsel to confirm the pre-sentence detention I have declared is correct?

72COUNSEL:  Yes, Your Honour, I understand that is agreed.

73MS ZUBRECKYJ:  Yes, we agree, Your Honour.

74HER HONOUR:  Madam Interpreter, thank you very much for your assistance today.

75INTERPRETER:  My pleasure.  Thank you, Your Honour.

76HER HONOUR:  Thank you.  If there are no other matters, we will adjourn the Court.

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