Director of Public Prosecutions v Lin, Chaunjin
[2013] VCC 122
•15 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02152
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAUNJIN LIN |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2013 | |
DATE OF SENTENCE: | 15 February 2013 | |
CASE MAY BE CITED AS: | DPP v Lin, Chaunjin | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 122 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: State and Commonwealth offences – possession of a drug of dependence – dealing with the proceeds of crime – gofer – reckless as to the quantity of drugs possessed – Chinese national – no prior criminal convictions
Legislation Cited: s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 – s.400.9 (1) & Schedule 11 of the Criminal Code Act 1995 (Cth)
Cases Cited:R v. Pidoto & O'Dea [2006] VSCA 185 – R v McLeish (1982) 30 SASR 486 – Guden v R [2010] VSCA 196
Sentence: Charge 1 (State) 1 year imprisonment with a non-parole period of 5 months, commencing today – Charge 2 (State) 2 years imprisonment, commencing on 15 July 2013, with the offender to be released on recognisance after 13 months on 15 October 2014
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. M. Sinnett | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr. J. McQuillan | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1 In this matter, Mr Sinnett appeared for the Director and Mr McQuillan for the prisoner, and Ms Ma appears today. Mr Lin is twenty-five years of age, and has pleaded guilty to two charges on the Indictment filed under Court Reference No CR-12-02152.
2 Charge 1 was possession of a drug of dependence, being pseudo-ephedrine. The date of that possession was 27 February 2012. Such is an offence against s.73(1) of Drugs, Poisons and Controlled Substances Act 1981.
3 The plea, for the purpose of sentencing, was accepted on the basis that the purpose of the possession in this matter was for trafficking. That, therefore made the appropriate sentencing under the section, being a sentence under part c being a maximum of five years.
4 Insofar as the quantity is involved, the plea was on the basis that, essentially, Mr Lin was recruited as a "gofer" and was reckless as to the precise amount that he was transporting. That precise amount, on the material in the depositions, turns out, of course, to be 2110 grams, quite a significant amount. Indeed, the commercial quantity under Schedule 11 is 750 grams, and as such, it was considerably more than that.
5 However, the plea was made on the basis that Mr Lin was never fully appreciative of the amount and indeed was reckless as to the amount, in the sense that while he knew he was doing wrong, he was reckless as to the precise amount of drugs he was a conduit for.
6 Charge 2, is probably the more serious; albeit that it has a lesser penalty. This is an offence under the Commonwealth Code, in particular, s.400.9 (1) where Mr Lin has pleaded guilty to dealing with the proceeds of crime, in this instance, in excess of $100,000.
7 Of course, the materials demonstrate that not only were the proceeds of crime in excess of $100,000, they were in excess of $400,000. The maximum penalty prescribed for this crime is three years and/or one hundred and eighty penalty units.
8 Insofar as the precise details of such dealing with proceeds of crime, the period involved is from 1 December 2011 to 14 June 2012. In the outline of the prosecution case, tendered as Exhibit A, those precise eighteen remissions which were made to China, are detailed at paragraph 36.
9 Further, at paragraph 38, are detailed three cash deposits, which were made also by the prisoner. The total of those remissions and cash deposits, at paragraph 39, is $417, 379.45.
10 The prosecution in its submissions as to sentencing, stressed the seriousness of these offences. It also stressed the need for the passing of a sentence which reflected general and specific deterrence, and indeed, I will add myself, the need for a sentence which effects punishment.
11 In particular, as to Charge 2, the prosecution pointed to the period over which these remissions and deposits took place, and submitted that this was not a simple one-off occasion of criminality, but was well planned and well executed.
12 The prosecution accepted that Mr Lin's role was that of a minion or a courier, and clearly, he's nowhere near the top of the chain, but unfortunately, finds himself in this position, as many prisoners like him do.
13 The principles relevant to all of these types of sentences are set out by the Court of Appeal in the case of R v. Pidoto & O'Dea [2006] VSCA 185, at [34], where the Court considered the appropriate structure of sentencing, and noted that the structure now adopted by Parliament has "…adopted a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence which has been trafficked."
14 In this instance, he is not charged with trafficking, however, the possession in this instance, is accepted as being for the purpose of trafficking, and the above principles apply.
15 In the sense of the hierarchy being defined by quantity, the possession in this case is the lowest charge that is able to be levelled for a possession of such a substance under the Victorian legislation.
16 Insofar as the particular role that Mr Lin played, I point out in particular, as I said during the plea, persons who consent, no doubt for the purpose of making money, to act in even the most minor roles, bring themselves into a situation where they are subject to condign punishment.
17 In R v McLeish (1982) 30 SASR 486, 492 the Court spoke about the failure of the Court and the justice system generally, and the authorities, to be able to find, identify, and prosecute the top persons; that is, the persons at the end of the chain, who use minions such as Mr Lin, to achieve their evil ends.
18 However, they also spoke of how one, as a Judge, should sentence persons in Mr Lin's position who are recruited to carry out such lesser roles. The following was said:
"It seems to me to follow, that after making all due allowance for the personal circumstances and antecedents of a prisoner, the facts of the particular case and the need to show mercy as is compatible with the safety of the public, a Court should impose such a sentence as will spell out clearly to those minded to establish or continue an unlawful organisation for purveying drugs, as well as potential recruits, the simple truth that a man who participates in such an organisation at any level, must expect, and will receive, a heavy penalty."
19 As I say, it is apparent from the maximum penalties imposed, even at the level that Mr Lin is at, the penalties still proscribed are relatively heavy.
20 It is noted that Mr Lin has served a lengthy period on remand, as I understand the position. At the plea it was two hundred and eighteen days and I think it is two hundred and twenty-seven now.
21 As I said in the plea made by Mr McQuillan, there was no issue as to the role that Mr Lin played. One only has to read the summary to understand that.
22 Mr Lin currently has no family here. His parents are in China. I accept that the plea that he has made was made at the earliest time possible, and again, he has no priors whatsoever. He has been in Australia since 2005. He initially enrolled in Year 11/12 and then went on to complete, and then went on to a TAFE College where he did a Hospitality course. He subsequently went from there to the Cambridge organisation where he did a business management course.
23 Mr Lin’s parents were here for a period in 2005, looking after him, however, his mother returned to China after taking ill in 2009, and has been there since. I am not quite sure whether he completed his Business Management course, but whatever he had, he was out of work for a considerable period, and then finally got a job as a plasterer specialising in the Gyprock section of that industry. Mr Lin has worked for a company, Ridgemont Constructions, the proprietor of that who has given a character reference for him and has been involved in that for at least two years, from 2006 to 2007.
24 Mr Lin moved on from there to work with an organisation in Melbourne. There seems to have been some difficulties in that work. He was having problems in being paid. He was essentially not paid for some period apparently, and of course, these issues led to the circumstances that he now finds himself before this Court. He decided to accept, no doubt, an offer from someone, whereby he decided to be part of this criminal activity which has been described in the summary.
25 Since the time of apprehension and during Mr Lin’s period in remand, he has made excellent progress and Ms Hooker, being the Youth Development Officer from Port Philip Prison came to the Court to give evidence. She tendered Exhibit 1 and it is clear that he is a person who is vulnerable, and as a result thereof, has been kept in the Youth section. He has and is to be complimented upon participating in many programs.
26 According to Ms Hooker, Mr Lin is a person who is committed to improving himself and has done all the courses that he has been able and done them in an outstanding manner, and in regard to those courses, which I have perused, they are all tendered, the nine separate ones making up a bundle of the certificates obtained from Kangan Institute, and they are Exhibit 2.
27 Exhibit 3 relates to, or portions of it, is the document I have already referred to, the character reference from his earlier employer, Mr Assaf, and two medical certificates confirming the illness of his mother.
28 His father has provided two, what we described as references, Exhibit 4. Essentially they are certifications of the position in regard to his mother, and the desire of the family for him to return to China, as soon as possible.
29 The final document tendered, Exhibit 5, was a notary certificate certifying who Mr Lin's parents are, and as I indicated, I was not concerned about that issue.
30 Insofar as the situation of his mother's illness, it was not put by Mr McQuillan, not could it have been in the circumstances, that this created anything exceptional. However, I accept that such a situation would affect him from a human point of view, and I accept that, in the service of his imprisonment, such a situation will weigh upon him and give him a harder time than others in the community would endure.
31 I also accept the comments of Ms Hooker, as to the vulnerability of Mr Lin, it is to be hoped that in the remaining period in gaol he is able to stay in the youth offenders’ section.
32 Mr McQuillan submitted that Mr Lin has essentially served eight months and sought mercy from the Court. He stressed that, albeit, that Mr Lin has subjected himself to the risk of condign punishment, such punishment has to be balanced by the particular circumstances of the matter. He stressed the early plea, and of course, stressed the fact that there were no priors at all.
33 Can I finally, compliment the investigating authorities in this matter. Both by way of surveillance and investigation, they have been well to the fore, and have done an excellent job in bringing to an end, what was clearly a quite robust organisation. One understands that this work is tough, hard and takes a lot of effort, and the Court appreciates the work involved.
34 The issue as to deportation is one that was raised. As was set out by the Court of Appeal in Guden v R [2010] VSCA 196 the contemplation of having to do a period of gaol and then be deported, especially where, no doubt, Mr Lin was hoping to settle in Australia, is a matter that the Court takes into account in the sense that service of a gaol term with such hanging over them makes it harder than other persons who would be sentenced.
35 What actually happens to Mr Lin by way of deportation is not a matter I can be involved with, because it is an administrative function of the Commonwealth. However, it would be most inappropriate, and I would ask that these remarks be passed on, if possible, to the Migration authorities; it would be most inappropriate, if, at the end of the minimum period that I set today, Mr Lin is then paroled and is held in detention for the balance of the period until he is deported.
36 Mr Lin is still a young man, hopefully with a bright future. That future will obviously be in China, unless he goes to some other country, but certainly, it would it be inappropriate that the balance of the period that is left under the Commonwealth sentence, which we will work out in this case, should certainly not, after the recognisance release period has come up, be served in detention. I would ask that those views be expressed to the Authorities.
Sentence
37 Coming then to the actual sentence, Mr Lin, I would ask you stand.
38 Insofar as Charge 1 is concerned, I have determined the appropriate period of imprisonment that should be imposed upon you is a period of one year, and I will set a non-parole period in regard to that, of five months.
39 Insofar as Charge 2, the Commonwealth charge, the period of imprisonment imposed upon you, is a period of two years and I intend to impose a Recognisance Release Order , which will mean that you will have to serve under that, a period of thirteen months prior to release.
40 Doing as best I can with a joint State and Federal sentence, I simply declare, pursuant to s.6AAA of the Sentencing Act 1991, that had Mr Lin not pleaded guilty, the sentence I would have imposed on Charge 1 would have been a maximum penalty of sixteen months, and the sentence on Charge 2 would have been two years and eight months. That is the best I can do in these circumstances.
41 Had I been able to pass a straight State sentence, what I would have sought to achieve is a maximum period of two and a half years, with a minimum of eighteen months. I can achieve the bottom line of that, that is, the minimum of eighteen months as follows:
42 The State sentence, with a non-parole period of five months, is to start today. The Commonwealth sentence is to commence five months from today, being 15 July 2013.
43 I direct, pursuant to s.19(A)(c) of the Crimes Act 1914 (Cth), that Mr Lin be released on a Recognisance Release Order after thirteen months of the commencement of such Commonwealth sentence, such date being the 15 October 2014.
44 Hence, by the use of the five months minimum non-parole period under the State period, and the thirteen months under the Recognisance Release Order, we get to a minimum period of eighteen months.
45 I order that, insofar as both sentences are concerned, the period already served on remand, of two hundred and twenty-seven days, is deemed to be service of such sentences, and that a declaration to such effect, be recorded in the records of this Court.
46 Hence, when you add the five months under the State sentence, and the thirteen months under the Commonwealth sentence, that therefore creates the total minimum period of gaol of eighteen months, less the two hundred and twenty-seven days already served. I will make that as clear as I can for the authorities, and if there are any issues, I shall clarify.
47 Mr Prosecutor, I also wish to put in the sentencing remarks, my comment about the issue as to deportation, and I think that is all I need to attend to. Any other matters.
48 MR SINNETT: Your Honour, the only other matters are, in terms of the Recognisance Release Order , usually there is a Recognisance amount.
49 HIS HONOUR: Yes, I will make that $1,000.
50 MR SINNETT: One thousand dollars, Your Honour, and also a good behaviour period in terms of the recognisance is usually imposed, and Your Honour is at large in terms of that, obviously in this case - - -
51 HIS HONOUR: What do you mean. A good behaviour period comes under the section, doesn’t it. Is that not proscribed.
52 MR SINNETT: No, it is not proscribed, Your Honour. Your Honour is at large to impose a good behaviour period of up to five years. Now, in this case, given deportation is likely, as Your Honour has noted, but not - - -
53 HIS HONOUR: I will impose a good behaviour period of the balance of the sentence which will be two years, it will be eleven months from the 15 October, 2014.
54 MR SINNETT: Yes, Your Honour.
55 HIS HONOUR: Hopefully that will not be a problem for anyone, and hopefully, he will not be here.
56 MR SINNETT: No, Your Honour, that is right. I will just prepare the Bond from now.
57 HIS HONOUR: Yes. Now, Mr Interpreter, if you could just tell Mr Lin this: he has already served, essentially, eight months, all right, so that has taken care of the minimum period of his State sentence. He has then got another thirteen months to serve. He has done already three months of that approximately, so he has got another ten months to serve before he can be released. He would be released on a Recognisance Release Order , or essentially parole, but the likelihood is that upon his release, he would be deported to China. You can tell Mr Lin I cannot guarantee that, because the remaining eleven months that he has to serve as a Recognisance, he will be in detention for some period of it, and all I can direct is, or ask, that the Commonwealth authorities effect the deportation as soon as possible. That is, I have asked that he not be in detention for a lengthy period. Would you tell him that I am sure Ms Ma will advise him in due course. Ms Ma, are you able to communicate with him in his own language.
58 MS MA: Your Honour, I will do my best, sir, yes.
59 HIS HONOUR: You have got the interpreter anyway. I have also, for the period, hopefully this will not apply to you, because you might be deported, but formally, I have set a good behaviour period of eleven months, and I would ask Ms Ma, could you arrange for that to be signed.
60 MS MA: Yes, Your Honour.
61 MR SINNETT: Your Honour, that is usually also witnessed by Your Honour's associate.
62 HIS HONOUR: Yes. I do not think I have ever done one of those before. Two years ago. Just shows you the memory is going. In the sense of to deal with the good behaviour bond.
63 MR SINNETT: Yes, Your Honour, Your Honour also signs the order and then it is signed by the accused and witnessed by Your Honour's associate.
64 HIS HONOUR: All right. Mr Sinnett, I have done a lot of those Recognisances, I do not remember putting that good behaviour on it.
65 MR SINNETT: Yes, Your Honour, I must say that is routine;
66 HIS HONOUR: Is it.
67 MR SINNETT: It is a standard - - -
68 HIS HONOUR: Maybe I have not noticed. Maybe I just sign.
69 MR SINNETT: It might have been a while, Your Honour, also, perhaps.
70 HIS HONOUR: I do not know. I think I have done a few drugs sentences.
71 MR SINNETT: Yes, Your Honour.
72 HIS HONOUR: Perhaps none of them have been for Recognisance.
73 MR SINNETT: Your Honour, they may have been non-parole periods, rather than Recognisance.
74 HIS HONOUR: Yes. All right, Mr Lin, no-one likes sentencing a young man to gaol, but you involved yourself in very difficult and very dangerous behaviour for your life, and I hope that once you have served your period of gaol and you are back in China, that you can make a good life for yourself. So good luck. Take the prisoner away. Thank you, Mr Interpreter, for your assistance.
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