Director of Public Prosecutions v Lin

[2015] VCC 1830

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01159

DIRECTOR OF PUBLIC PROSECUTIONS

v

YUAN CE LIN

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 December 2015
CASE MAY BE CITED AS:	DPP v Lin
MEDIUM NEUTRAL CITATION:	[2015] VCC 1830

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Dalziel	Office of Public Prosecutions
For the Accused	Mr P. Dunn QC with Mr R. Edney

HER HONOUR: 

1Yuan Lin, you have pleaded guilty to one charge of trafficking in a drug of dependence namely methylamphetamine in not less than a large commercial quantity.  The maximum penalty for that offence is life imprisonment. 

2Further you have pleaded guilty to one charge of trafficking in a drug of dependence namely cocaine.  The maximum penalty for that offence is 15 years' imprisonment. 

3Further you have pleaded guilty to one charge of possession of drugs of dependence as set out in the charge.  The maximum penalty for that offence is five years' imprisonment. 

4Further you have pleaded guilty to two charges of possession of an unregistered Category E firearm.  The maximum penalty for each offence is seven years' imprisonment. 

5Further you have pleaded guilty to one summary charge of possessing property suspected of being the proceeds of crime.  The maximum penalty for that offence is two years' imprisonment. 

6Finally you have pleaded guilty to one charge of possession of cartridge ammunition.  The maximum penalty for that offence is 40 penalty units.

7The facts which found the charges are set out in a detailed prosecution opening which is Exhibit 1, and I do not propose to recite those facts in full now.  I direct a copy be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.  I have in addition seen the photographs of the premises referred to by the prosecutor.

8In essence, on 31 December 2014, police executed a search warrant at premises occupied by you in Exhibition Street Melbourne.  You were at that time an illegal immigrant as your student visa had expired in 2009.  You were the only occupant of the apartment at the time the warrant was executed.  Drugs and paraphernalia were located throughout the apartment.  A total of 2.398 kilograms of methylamphetamine was located in quantities in snaplock bags which were suggested having been both packaged and weighed.  Nearly all of this quantity was at 80 to 90 per cent purity. 

9In addition, 13.7 grams of cocaine at 20 per cent purity was located.  As regards Charge 3, police located 5.5 grams at 80 per cent purity and four tablets containing ketamine together with 0.2 grams of heroin and 16.2 grams of butanadol. 

10Police also located $44,150 cash suspected of being proceeds of crime.  $40,000 was in a safe within the premises and the remainder was in your wallet.  I note that amongst the other property seized, there was a cash counting machine. 

11In addition to the drugs, two sawn-off shotguns and a variety of ammunition were seized.  I note that one of the guns was not capable of being fired due to some defect. 

12You were interviewed and in essence denied possession or knowledge in relation to the drugs, paraphernalia and firearms.  You gave inconsistent accounts as to the money located in your wallet.  You told police others lived at the apartment and they came and went.  Your plea, of course, in effect disavows what you said in the record of interview.  I note that even the version you initially instructed your counsel in relation to was ultimately not relied upon.

13This is necessarily serious offending especially as regards Charge 1 which carries a maximum of life imprisonment.  General deterrence must be given weight in the sentence I will impose this day, balanced of course with other relevant sentencing considerations.  In my view, this was planned, calculated offending.  Drugs are a scourge on the lives of members of our community. 

14As regards categorisation of your offending in the range of conduct which might constitute trafficking in a large commercial quantity, a number of matters are relevant.  Clearly the quantity of the drugs is a relevant matter as is the duration of offending, and I note in this regard that you were charged with a single date traffic on the basis of possession for sale. 

15You have no prior convictions and you are to be sentenced on the basis that you are, apart from this matter, a man of good character.  You are now aged 24.  You were born in the Fujian province in 1991 in China.  You are an only child.  Your father was in the armed services and subsequently chairman of a workers' union, and your mother was a kindergarten teacher.  You had some difficulties, it seems, at middle school and this was a source of tension with your parents who valued education highly.  It was determined that you would travel to Australia for your further education. 

16You arrived in 2006 on a student visa with your mother.  You enrolled at a language school in Sydney.  Your family hoped that you would progress better educationally and that this move would detach you from negative peer influences in China.  Unfortunately, after six months you became involved with a group of young men who were, it seems, not favourable influences.  You managed to get partway through Year 12 but you did not complete that year.  After leaving school, you engaged in a variety of employment in cleaning, construction and labouring.

17In 2009 when your visa expired, you determined to remain in Australia and you found employment in Newcastle as a butcher.  In 2011, you moved to Melbourne and commenced employment as a kitchenhand at a dumpling restaurant.  You lost that employment in July 2014 and you say you had to borrow some $3000.  Whether that is the case or not, what is objectively apparent is that you were young, without a visa, and without employment, and this is the context in which you became involved in this offending.

18You say that you were effectively engaged to test the drugs for purity and you say you rarely left the property and others were in control, attending at the property at various times.  You say you were scared, they had firearms.  I note that this was not an explanation urged or pressed by your counsel and I simply do not accept it.  The objective evidence speaks otherwise.  The key to the safe was in view and accessible to you.  The safe contained money and your passport amongst other items.  You were trusted by others involved to have possession of drugs and a significant amount of cash.  You could in reality have left at any time, taking your passport with you.  You in fact had over $4000 in your own wallet. 

19In my view, you were an active and trusted participant in the drug activities.  The objective evidence also, including the DNA, supports the involvement of others and I accept that logic would indicate that it is not usually the principal 'at the shopfront' as the prosecutor described it.

20You have been in a relationship since 2013 but your girlfriend must leave Australia as her visa expired.  Your mother is in Australia working as a dumpling chef.  She visits you in custody and is a source of support for you.  Her visa will expire in January 2017 and you will lose that support also.

21This offending was committed in December 2014.  The matter resolved prior to committal and you were committed for plea in this court in September this year.  The plea was adjourned, awaiting Justice Lasry's baseline decision and the subsequent Court of Appeal decision in Walters.  You have been remanded since the date of your arrest. 

22I accept that your lack of English has caused you some difficulties.  I have been told that you were not involved in the prison riots but like many others you were subject to the 23-hour lockdowns that followed.  It is clear that you will be deported at the end of your sentence, however you of course had no legitimate expectation that you could stay.

23As regards drug use, you reported trying MDMA once when you were in Sydney with your mother and you said otherwise your drug use was confined to post losing your employment and then, you would say, the testing of drugs in the context of your offending.  You say you quickly became dependent.  The reality is, there is no objective evidence of use relevant to my sentencing task.

24I have received a report from Dr Joel Godfredson.  He diagnoses you as suffering from a major depressive disorder and stimulant disorder in early remission in a controlled environment.  I note that you have now been prescribed antidepressant medication.  Dr Godfredson opines that given your mental health, vulnerability, naivety and impressionability along with your limited English, that a period in custody "may" weigh more heavily on you relative to the average offender.  He says you are a moderate risk of general reoffending. 

25I have received two references from your mother and a colleague, both of which speak glowingly of you.  In relation to your prospects of rehabilitation, I think they are properly assessed as positive given your lack of criminal history.  Despite what was put by the prosecutor, in my view you are a young man, gaol is likely to have significant deterrent effect and your prospects on that alone must be seen as positive.  I think rehabilitation is relevant wherever you may spend the rest of your life. 

26Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  You have pleaded guilty and saved the community the time and expense of a trial.  You are entitled to the benefit of your plea and I have acted on that basis.  Contrition is difficult to gauge in circumstances where you were still denying the offending as recently as this month when you were assessed by Mr Godfredson and in circumstances where I have not accepted your version of events, but that may too be a question of time and maturity. 

27You are still a youthful offender.  As I have said, this is your first time in custody and likely to have significant deterrent effect.  I accept for the purposes of sentencing you that you will find prison more onerous for the reasons opined by Dr Godfredson to which I have already referred, combined with you being a foreign national in custody with little support and inevitable isolation especially once your mother has to leave Australia.

28The Crown submit and your counsel quite properly conceded that the only disposition open is a term of imprisonment. 

29As well as matters personal to you, I must take into account relevant sentencing considerations.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment. 

30General deterrence is of considerable importance in matters such as these, that is, I must seek to deter not only you but others who would engage in like conduct.  I regard this as an important factor to be weighed with other relevant sentencing considerations in your case.  Your sentence, as I have said, must manifest denunciation and impose just punishment.  I must in addition seek to deter you from future offending but that can perhaps be given less weight given your history.

31Would you stand please.

32On Charge 1, trafficking large commercial quantity methylamphetamine, convicted and sentenced to be imprisoned 8 years.

33Charge 2, traffick cocaine, 18 months.

34Charge 3, possess drug of dependence, 8 months.

35Charge 4, possess unregistered firearm, 12 months. 

36Charge 5, possess unregistered firearm, 12 months.

37I direct that eight months of the sentence on Charge 2, three months of the sentence on Charge 3, four months of the sentence on Charge 4, three months of the sentence on Charge 5 be served cumulatively with the sentence upon Charge 1 and upon each other.  That is a total effective sentence of nine years and six months.  I direct that you serve seven years before becoming eligible for parole.

38On the summary charge of possessing proceeds, I convict and sentence you to eight months' imprisonment concurrent with all other sentences imposed this day. 

39On the summary charge of possessing ammunition, convicted and fined $300.

40I direct that 345 days be reckoned as served. 

41I direct it be noted in the records of the court that were it not for your plea of guilty, I would have sentenced you to a total effective sentence of 11 years and six months with a non-parole period of nine years.

42Finally, the Crown seek a disposal order in relation to the drugs and paraphernalia, a forfeiture order in relation to the cash and a forfeiture order in relation to the firearms.  You consent to the making of the orders, which I do in the terms of the draft. 

43Have a seat for a moment please.

44Counsel, would you please check the cumulations to make sure they're right. 

45MS DALZIEL:  It's correct by my calculations, Your Honour.

46HER HONOUR:  Thank you.

47MR DUNN:  Yes, Your Honour.

48HER HONOUR:  Thank you.  Is there any factual matter which needs to be corrected?

49MR DUNN:  No, Your Honour.

50HER HONOUR:  Thank you very much.  I thank counsel for their assistance.  I ask that Mr Lin be taken downstairs please.

51MR DUNN:  Could I thank Your Honour for sentencing today. 

52HER HONOUR:  Mr Lin can go down please.  I'll wait on the Bench while that happens. 

53Stand down, thank you.

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