Director of Public Prosecutions v Low

[2019] VCC 132

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02012

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZHI LOW

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 February 2019
CASE MAY BE CITED AS:	DPP v Low
MEDIUM NEUTRAL CITATION:	[2019] VCC 132

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Baxter
For the Accused	Mr M. Sturges

HER HONOUR: 

1Mr Zhi Low, I am going to sentence you now.  Zhi Bin Low, you have pleaded guilty before me to three charges of importing tobacco products contrary to s.233BABAD(1) of the Commonwealth Customs Act.  In brief compass, the facts underlying your offending are as follows.

2Charge 1 relates to five consignments of cigarettes received by you at various addresses in Melbourne.  The total amount of revenue evaded as a result of those activities was $14,130.65.  I should add that I annex the prosecution opening to the sentencing remarks as an exhibit.  Charge 2 relates to two importations via shipping container into Australia, in which cigarettes in their thousands were secreted, and in which you played a role, in terms of their delivery and consignment to various persons, organised to undertake the selling.  The total amount of revenue in relation to Charge 2, which was evaded, was $369,224.89.  Charge 3 relates to three post office boxes set up by you, solely for the purpose of providing a destination for cigarettes from China, as a result of which a number of parcels of cigarettes hidden in various ways were sent on eight occasions between 7 May and 22 May 2018, the total revenue being evaded amounting to $6,870.40.

3Your role in what was clearly a syndicate enterprise was described by the prosecution in the following way.  You provided a name and address for the delivery of consignments.  You rented a room in Box Hill North, where you were able to receive tobacco consignments.  You directed your housemate to sign and collect a parcel that was to be delivered to you, knowing the consignment contained tobacco.  In relation to the container import charges, your role was to receive the container on arrival, you providing your phone number as the consignee contact and relevant details with respect to that importation, was saved on your phone.

4Further, you recruited a co-offender, Kay, to collect the cigarettes.  You provided her with relevant details for the container, including the consignee name, the address of collection and the address of the warehouse collection.  You rented a warehouse for the storage of tobacco and you attended a delivery address on the date of delivery of the consignment in order to supervise that delivery.  As I have outlined, you leased four post boxes either on behalf of, or at direction of the syndicate.  You tried to recruit others to assist in selling cigarettes and you sold cigarettes for profit.  It would appear from one of the text messages located on your phone, on what seems to be an Asian equivalent of Facebook, that it was your aim to save a certain amount of money and then leave Australia. 

5I now turn to your personal circumstances.  According to Western calculation you are now 25 years' of age.  You have no prior convictions.  You are one of six children born to your parents in Ipoh, Malaysia, they separating and divorcing when you were about 12.  You were educated to Year 11 but were not a scholar.  Your family runs what your counsel described as a relatively successful agricultural property producing wholesale vegetables.  You left there however and went to Kuala Lumpur in 2011, trying to carve out a career in real estate, but this was not successful and you returned to work with your family.

6You then decided that you would come to Australia, which you did on a tourist visa in March 2017, your intention being to then apply for a student visa.  Your application was rejected, but you remained in Australia and from May 2017 lived here as an illegal immigrant.  You tried to obtain work in the hospitality industry but it was poorly paid and you were poorly treated.  Eventually, you attended a meeting with persons in the Asian community who you hoped would give you work.  They told you that you would be paid to receive packages.  You were not aware at the time what those packages contained but then opened one, discovered it contained tobacco and continued on in the enterprise. 

7Your counsel informed me that those superior to you in the syndicate, scolded you for opening the packages but that once they knew that you knew what the enterprise involved, you were given greater information and presumably greater responsibility. 

8You were arrested on 7 May 2018 and released without charge but were taken into immigration detention, your illegal immigration status having become known.  Ultimately, you were re-arrested in June 2018.  You conducted a no comment record of interview and you were transferred to detention in the prison system, where you have remained since at Marngoneet Prison.

9After a time you confessed to your family in Malaysia about your offending and your accommodation in the Australian prison system.  I received a reference from one of your brothers who described you as a kind and hard-working member of your family who was not a person who normally engaged in criminal activity.  As I remarked to your counsel on the plea, this is not one of those cases where extreme poverty drove you to come to this country.  Your family did not pinch and scrape together in the hope that you would undertake education in Australia, come back and better your family as a whole.

10You appear to have been a well-provided for young man.  You come from a good, stable family which runs a reasonable business and you seem to have moved into criminal activity in this country quite quickly, that is within a couple of months of your arrival here, and I have no doubt that had you not been apprehended by police, would have continued with that criminal activity until you made the money out of it that you wanted to.  Persons like you Mr Low need to receive a sentence so that other people who decide they are going to behave the way you have will think twice.  It has been conceded by your counsel that only a term of imprisonment to be immediately served is appropriate in this case.

11In sentencing, I take into account the fact you have no prior convictions, your relative youth, the generally unsophisticated way in which you went about your criminal activity in that a great deal of the case against you was easily obtained by police on your phone and social media accounts and the fact that you pleaded guilty at a very early stage of the proceedings.  It is clear you will be deported as soon as your sentence is completed.  And in the circumstances it would seem neither necessary nor sensible to sentence you to a maximum and minimum term.  In other words, I propose sentencing you to a straight term of imprisonment, after which you will be promptly deported.  Taking into account the matters that I have outlined, I therefore sentence you - can I do it on an aggregate basis, Ms Baxter?

12MS BAXTER:  Yes.

13HER HONOUR:  I therefore sentence you - it is a continuing course of conduct - I am going to sentence you on an aggregate basis on all three charges, to a term of 12 months' imprisonment.  I declare that - how many days is it?

14MR STURGES:  254, Your Honour.

15HER HONOUR:  I declare that 254 days of that sentence have already been served by way of pre-sentence detention.  I do not need to do a section 6AAA  because it is Federal.  All right.  Is there anything else I need to deal with?

16MS BAXTER:  No, Your Honour.

17HER HONOUR:  No.  Thank you.  Thanks, Mr Sturges, as I said, you prepared very thoroughly.

18MR STURGES:  Thank you, Your Honour.

19HER HONOUR:  I am sorry I kept interrupting you ‑ ‑ ‑

20MR STURGES:  Not at all.

21HER HONOUR:  I seem to do it all the time, anyway, but the points you made were well made.

22MR STURGES:  Thank you, Your Honour.

23HER HONOUR:    And again as usual, Ms Baxter, you have been most helpful so thank you.  Yes.  Thank you.  All right, so you will just go home, Mr Low and live out your life in Malaysia and do not try anything stupid like this again.  Very well.  Thank you very much.

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