Director of Public Prosecutions v Lin

[2016] VCC 2090

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01379

THE QUEEN

v

WENBIAO LIN

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2016
CASE MAY BE CITED AS:	DPP v Lin
MEDIUM NEUTRAL CITATION:	[2016] VCC 2090

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

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APPEARANCES:	Counsel	Solicitors
For Director of Public Prosecutions (Cwth)	Ms T. Tran	CDPP
For the Offender	Mr P. Chadwick QC	James Dowsley&Associates

HIS HONOUR: 

1Wenbiao Lin, you have been found guilty by a jury of your peers of one charge of importing a commercial quantity of a border controlled precursor, namely pseudoephedrine, contrary to s.307.11 of the Commonwealth Criminal Code.  This offence carries the maximum penalty of 25 years' imprisonment. 

2You pleaded not guilty and conducted a trial, which is your right.  Whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated. 

3The general circumstances surrounding this offence are as follows:

4You were the principal in a landscaping business.  From late June until 2 August 2012 you and your employees were performing landscaping work at a property located at 24 Shannon Street, Box Hill. 

5On 23 July 2012 a FedEx package arrived at Melbourne Airport.  It was addressed to Chen Fen 22 Shannon Street, Box Hill North.  The sender details were a Chinese entity in China. 

6The contents of the package were described as water purifier accessories.  The package contained eight stainless‑steel water filters.  Each purifier weighed about two kilograms.  The substance was detected within each of the cylinders.  An inert substance was substituted for the granules in seven of the eight purifiers. 

7On 2 August 2012 at about 3.20 pm a managed delivery was conducted at
22 Shannon Street.  You were present at or around 24 Shannon Street with a co‑worker who was engaged in landscaping work.  When the Customs officer purporting to be the delivery driver left his motor vehicle you approached him and spoke to him.  You followed him to the front door of the house at
22 Shannon Street.  The occupant of that house refused to accept the parcel.  You spoke both to the occupant and to the Customs officer again as you were trying to receive the parcel.  You ultimately took possession of the parcel and put it on the footpath. 

8In your record of interview you provided an explanation for your conduct.  You said you were simply collecting a package for another.  You denied any knowledge that the parcel contained drugs and accordingly you had no involvement in any importation.  It is clear from the jury's verdict that the jury rejected this version of events. 

9The eight water purifiers contained 7,645.8 grams of pink and yellow granules containing 32 per cent pure pseudoephedrine, being 2,424 grams.  The pseudoephedrine was valued at between 60,000 and $300,000 at the relevant time.  It had the potential to yield at least 1.2 kilograms of pure methamphetamine which could be sold for between $248,000 wholesale and $1.2 million street value. 

10In assessing your criminality I have taken into account your involvement in the steps taken to effect the importation.  An assessment of your role is of great importance in assessing the objective criminality of the offence. 

11You provided the address to which the package was to be sent, 22 Shannon Street, Box Hill North.  You were therefore able to wait for the package under the guise of working next door.  You had knowledge of the false name on the package Chen. 

12I find beyond reasonable doubt that you have liaised with a person or persons overseas either directly or indirectly.  You tracked the package.  You received and took possession of the package.  I am satisfied beyond reasonable doubt that you were therefore not a mere recipient or courier, rather you had some involvement in the planning of the importation by, at the very least, the provision of the address to which the package was to be delivered.

13You did therefore have an important role in the importation as the Australian end of that importation.  You had provided the address, tracked and then received the package.  You were involved both prior to and upon the arrival of the drugs in Australia. 

14I state to you that I have taken into account the following matters in mitigation of sentence.  You have no prior convictions.  I sentence you as a person of previously good character.  Although, as this is a drug importation offence, your prior good character is to be given less weight as a mitigating factor than it might otherwise be given. 

15I have been told something of your personal circumstances.  You are 28 years of age, having been born on 19 September 1988.  You were therefore 23 years of age at the time of this offence.  You were born in China. 

16You were an excellent student and you received an academic scholarship upon completion of your secondary education.  But rather than undertake tertiary studies in China you decided to emigrate to Australia in about September 2007. 

17You are married and you have a four‑year‑old daughter.  You had a second child but this child has been adopted by others. 

18In late 2007, shortly after your arrival in Australia, you were involved in a motor vehicle accident and this means you failed to complete your high school course in Australia. 

19In Australia you have had employment in a restaurant and in a small construction company.  From about October 2010 you have been conducting your own landscaping business.  This business has been successful and you have employed up to 20 casual staff.  The business had a turnover of approximately 200 to $300,000 with a profit of approximately $120,000. 

20You purchased a family home.  Unfortunately, owing to difficulties when you attempted to commence a hire business and a dispute with a customer involving a large job, your business was declared bankrupt in December 2015.  You therefore lost your business.  You have debts and this has all placed a strain on your marriage. 

21In recent times you have been employed working on a casual basis as a site manager for a construction company.

22You have been in custody since 26 May 2016.  Whilst in custody I accept that you have been using your time constructively.  You have completed a number of courses in custody. 

23Your wife is struggling to support herself and your daughter.  She is running a small export business and she receives some financial assistance from your father.  It is not submitted any hardship to any family as a result of your incarceration is of an exceptional nature. 

24I have had regard to the references and letters tendered on your behalf.  Mavic Farrugia has known you since 2012 in your capacity conducting your landscaping business.  He describes you as likeable, trustworthy, hard‑working, reliable and willing to help others. 

25Bernard Kelly describes you as a grateful, polite and helpful person. 

26Rick Long Maha Wong is a friend and employee.  He describes you as responsible, reliable, trustworthy, honest, a good father, husband and friend. 

27There has been much delay in this matter and I have taken this into account as a factor in mitigation. 

28It is submitted on your behalf that you have impaired mental functioning and the fifth principle enunciated in R v Verdins (2007) 16 VR 240 at 276 ought apply, that is: "5. The existence of a condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health".

29This was disputed by the prosecution.  The prosecution submitted that I could not be satisfied of any impaired mental functioning, rather at best there was simply evidence of a memory problem present.  Accordingly the principles enunciated in Verdins' case did not apply. 

30I found the evidence tendered on your behalf in support of the application of Verdins' principle 5 to be most unsatisfactory.  I have undertaken a rigorous evaluation of the evidence and after giving the matter careful consideration I am not satisfied the evidence establishes impairment of mental capacity.  I have arrived at the conclusion for these reasons.  It is clear from your background that you were an exceptional and gifted student in China, even though you had a childhood accident.  You did have a motor vehicle accident in Australia in 2007 but I have no medical evidence from that time in respect of the nature of any physical or mental injury you may have sustained.  You did establish and manage a reasonably large and successful landscaping business and in more recent times before your incarceration you have worked as a site manager.  The references tendered on your behalf attest to your good qualities.  There is no suggestion in them of any mental impairment. 

31You have been found guilty of this offence and I have set out your acts.  You did participate in records of interviews and gave numerous and detailed answers to questions with no suggestion of mental impairment.  Whilst in custody you have completed a number of courses.  The evidence presented on your behalf on this issue comprised a report of Dr Grech, psychologist, dated 8 August 2016, a report of Dr Walters, neuropsychologist, dated 7 October 2016, and a report of Dr Lester Walton, psychiatrist, dated 8 August 2016. 

32Dr Grech notes you are on Olanzapine medication.  This is an antipsychotic drug.  He felt that you had an unspecified but clearly significant psychiatric illness and recommended psychiatric and neurological review and review of additional medical material. 

33Dr Walters was of this opinion:  "Mr Lin is a 28‑year‑old man who has a history of severe head injury in childhood, a minor car accident and a psychiatric illness.  He is currently taking antipsychotic medication and reports some low mood and hallucinatory phenomena.  On assessment he complained mainly of an inability to distinguish between real memories and hallucinations and of psychiatric symptoms.  On assessment there were marked abnormalities in his verbal memory function and in his ability to adjust his behaviour in response to feedback.  The aetiology of these abnormalities is unclear.  It is quite possible that Mr Lin's childhood head injury could have caused these.  However the presence and severity of this injury may need to be substantiated.  Also, I find it unlikely that Mr Lin could have performed well at school with such marked verbal mental impairment, or could have adequately managed a business for approximately five years with both impairment in verbal memory and in his ability to adjust to feedback.  On the basis of Mr Lin's description of the motor vehicle accident in 2007 I do not think that it was likely to have resulted in significant brain damage.  On balance it is most likely that his current psychiatric illness is affecting his cognitive function". 

34Dr Walters therefore has pointed out the anomalous situation that you have performed well at school and adequately managed a business for about five years.  This is not consistent with marked verbal mental impairment. 

35Further, as she states, the aetiology of your apparent abnormalities in verbal memory function and ability to adjust your behaviour in response to feedback is unclear. 

36Dr Walters is of the opinion that on balance your current psychiatric illness is affecting your cognitive function but the nature of that psychiatric illness is not known. 

37Dr Lester Walton, psychiatrist, expressed the opinion that there is an organic component to your psychiatric symptoms and you have post traumatic psychological symptoms as a reaction to the motor vehicle accident. 

38I do not accept either of these opinions having regard to the absence of evidence of organic injury and evidence of your rich and successful life in Australia after the motor vehicle accident. 

39He states:  "4.  During the period of this man's offending he was not only struggling with his ongoing headaches, hallucinosis, depression and insomnia likely caused principally by the incidence of head injuries but he was under very considerable business stress, his marriage was under strain and he was struggling to come to terms with having adopted out his second born child.  These factors may well have contributed to a lapse in judgment from a man who seemingly has otherwise led an unblemished life.  Mr Lin's circumstances are reversible, including likely better control of his neuropsychiatric symptoms being achieved in due course, which are favourable prognostic factors but perhaps the most reassuring feature is simply the lack of a prior criminal history.  I believe it is a fair comment that Mr Lin, with his range of neuropsychiatric difficulties, will endure incarceration as more onerous than others.  To state the obvious, a prison environment is not ideal for the ongoing investigation and treatment of complex neurological/psychiatric issues". 

40Whilst your counsel does not seek to rely on the opinions concerning your moral culpability and only wishes to rely on the opinion that Dr Walton believes that you will endure incarceration as more onerous than others in my opinion it is appropriate to have regard to all of these matters in assessing Dr Walton's evidence.  Dr Walton is clearly wrong in referring to the adoption of your second‑born child as a relevant factor in causing a "lapse in judgment" as this occurred many years after your offending.  It is clear from the history taken by Dr Walton that this fact was known to him. 

41Further, to describe your offending as a "lapse in judgment" is, in my opinion, in all the circumstances of this case, completely inappropriate.  In my opinion this adversely affects the opinions of Dr Walton upon which you do seek to rely.  Dr Walton describes you as having "a range of neuropsychiatric difficulties" and "complex neurological/psychiatric issues", but there is no diagnosis provided. 

42Whilst in Verdins' case the Court of Appeal stated that a sentencing court should not have to concern itself with how a particular condition is to be classified it remains relevant that there is no diagnosis provided in this case of your alleged psychiatric illness. 

43Further, I am not satisfied in respect of the nature, extent and effect of any mental impairment that the evidence reveals anything more than some vague memory problems and various complaints by you of symptoms.  You are taking medication on a regular basis and it largely controls your symptoms.  I do not accept that this circumstance is evidence of mental impairment. 

44For these reasons I am not satisfied the fifth principle in Verdins' case applies. 

45I assess your prospects of your rehabilitation as being reasonably good. 

46Against these matters in mitigation, however, your actions were very serious indeed.  Superior courts have consistently emphasised the serious nature of drug importation offences.  The gravity of this offence is reflected in the maximum penalty of 25 years' imprisonment. 

47The pre‑sentence detention is agreed at 153 days.  As well as the matters to which I have referred I must take into account the need for general and specific deterrence, specific deterrence is relevant, general deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged. 

48Pursuant to s.16A(1) of the Crimes Act I must impose a sentence that is of a severity appropriate in all the circumstances.  I have had regard, insofar as relevant, to the factors set out in s.16A(2).  There is no issue that an immediate custodial sentence is required.  I am satisfied that no other sentence is appropriate in all the circumstances of the case. 

49I have regard to the schedule of comparative cases tendered by the prosecution.  Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows:

50You are convicted and sentenced to eight years' imprisonment.  The non‑parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances.  For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account. 

51In all the circumstances I direct that you serve a minimum term of five years and six months before becoming eligible for parole. 

52I declare the period of time you have spent in custody is 153 days which is to be reckoned as time already served under the sentence and I direct that such be noted in the records of the court. 

53I state that the sentence is to commence on this date. 

54It is necessary for me to explain the sentence to you.  You are convicted and sentenced to eight years' imprisonment.  The non‑parole period is five years and six months.  You must serve five years and six months before you are released on parole.  The pre‑sentence detention of 153 days is to be reckoned as time already served under the sentence. 

55Does that cover all the formalities? 

56MS TRAN:  It does, Your Honour.

57HIS HONOUR:  Nothing else, is there?  Mr Chadwick? 

58MR CHADWICK:  No forfeiture orders or anything of that nature.

59HIS HONOUR:  No, I don't think there were any. 

60MR CHADWICK:  I was just checking, Your Honour, rather than coming back.

61HIS HONOUR:  No, nothing further.  Thanks for your help. 

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