Director of Public Prosecutions v Ming Hsuan Ou
[2015] VCC 1940
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00301
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MING HSUAN OU |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 December 2015 | |
CASE MAY BE CITED AS: | DPP v Ming Hsuan Ou | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1940 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Fox | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. Morrissey SC with Ms J. Watson | Theo Magazis & Associates |
HIS HONOUR:
1 Ming Hsuan Ou, on 30 November 2015, a jury found, beyond reasonable doubt, that you, together with Li Ping Chen and Shu Yi Lin, at Melbourne between 25 May 2014 and 29 July 2014, trafficked in a substance, the substance being a controlled drug, namely methamphetamine and the quantity trafficked was a commercial quantity. In this instance, the quantity of methamphetamine trafficked by you and your co-offenders, Chen and Lin, was 117 kilograms of 79.8 per cent pure methamphetamine, which calculates to 92.8 kilograms of the pure drug. A commercial quantity of the pure drug, methamphetamine, is 750 grams. The maximum penalty for this offence is life imprisonment.
2 You came to Australia from Taiwan with each of your two co-offenders and Chun Lan. You sat next to each other on the flights to Australia. The booking for the tickets was in your name. On arrival in Australia, each of the incoming passenger cards were, for all relevant purposes, filled out in identical terms. Each of the airline tickets had the same return flight date of 15 July 2014. The return tickets were not used and no changes were made to the ticketing arrangements. You were arrested on 29 July 2014.
3 After a short period of staying in a hotel, you took up residence in an apartment in City Road. Shortly thereafter, Chen and Lin took up residence in an apartment in Lonsdale Street. You were regularly in the company of Chen and Lin from 3 July 2014 until the time of your arrest.
4
On 12 October 2015, Chen and Lin pleaded guilty to the charge of which you were convicted. The case against each of you was put on the basis of joint commission. On 23 October 2015, Chen and Lin were each sentenced to
12 years' imprisonment, with a non-parole period of eight years' imprisonment.
5 During the course of your trial, Chen was called as a witness by the Crown. In short, he said that he was employed in Taipei by a man named Ahu, who offered to pay him $500,000 Taiwanese, approximately 18 months’ pay, for him to travel to Australia to look after something for Ahu. He swore that he was introduced to Lin by Ahu. He actively sought out friends to accompany him to Australia because he had not travelled outside Taiwan before. Eventually he approached you and you agreed to travel with him. You attended a travel agent together to purchase tickets. Chen paid for himself and Lin, while you paid for yourself and Lan. Chen swore he did not meet Lan prior to arriving at the airport to travel to Australia.
6 Chen swore that he had been provided with a SIM card by Ahu, so that Ahu could contact him. He swore that shortly after arriving in Australia, he was told by Ahu to go to a house, which he described as a "country" house, where he and Lin found three suitcases full of methamphetamine and a fourth empty suitcase, as well as some scales, which he described as being among bric-a-brac at the country house
7 He remained at the country house until he was told to leave by Ahu. He left on 3 June 2014 and went immediately to your apartment. I note that this was the day that you had inspected your apartment as a prospective tenant and that you did not lease the apartment until the following day, 4 June 2014.
8 Chen swore that on arrival at your apartment, you asked him what was in the suitcases and he replied, “Money”. He swore that the matter of the suitcases and their contents was left there.
9 Chen was an unsatisfactory witness and his account, save for his admissions against his own interest, was lacking in any credibility. The jury, by their verdict, rejected beyond reasonable doubt his evidence concerning the conversation about the suitcases, which was exculpatory of you.
10 Taking into account the circumstances of your travel to Australia and your involvement with the movement of the methamphetamine, together with your continuing association with Chen and Lin and the combined effect of the fingerprint evidence, I am satisfied to the appropriate standard, like Chen and Lin, you came to Australia intending to traffic in methamphetamine.
11 Mr Morrissey posited a possibility that you were “an accidental babysitter” for the methamphetamine. In my view, if, as an innocent, you were presented with three suitcases of methamphetamine, you would have distanced yourself from Chen and Lin, even to the extent of leaving Australia for Taiwan at the earliest possible opportunity.
12 Unlike Chen and Lin, who adopted on their pleas, an expanded version of the narrative set out above that included admissions concerning their recruitment and remuneration, there were no such admissions made by you. I am unable, therefore, to identify the precise nature of your role in this criminal combination. However, the identification of your role is not essential to the exercise of my sentencing discretion. However, what I am able to find is that you trafficked in a very large quantity of high purity methamphetamine and that your offending is objectively serious. The quantity and purity of the drug allows me to find that your involvement in the criminal combination was for gain.
13 You are 24 years old. In Taiwan you lived both a carefree and crime-free life. You come from a good, hardworking family. Your mother and father both work. Your father as a driver for a judicial officer and your mother as a process worker in her brother’s factory. You are both a Buddhist and a Taoist, which I was informed is neither unusual nor inconsistent. You left high school without completing your final year. You were not academically minded. You have always lived with your parents, save for the period of 12 months’ compulsory military service that you underwent when aged about 19. You have no health issues of any kind.
14 After being discharged from military service, you returned to your parents’ home and worked part-time at your uncle’s factory, earning $2,500 Taiwanese, or about $1,000 per month.
15 In the years immediately prior to your coming to Australia, you worked on a casual basis for your uncle and this allowed you to travel with friends around Taiwan. You also travelled overseas to Manila and North Africa. This lifestyle was approved of by your parents, as they wanted you to enjoy your youth. You had, in your own mind, that when you turned 25 years of age, you would join your uncle in his business and make a working life for yourself there. Instead, the best years of your life will be spent in an Australian gaol.
16 You have been on remand in custody since your arrest. You speak little English and until recently, have been housed with other Mandarin-speaking prisoners. Whilst in prison, you experienced the frightening spectacle of the recent gaol riot. As against that, you have been visited by your mother and aunt in June of this year and there is a prospect of further visits. Additionally, you have regular contact with your family by telephone. Despite this you will be isolated in prison. As recently as this week, your prison records were the subject of a subpoena. While on remand you have proved to be a model prisoner
17 You are young. How and why you involved yourself in this criminal combination only you know with any certainty, and until you did so, you were a quiet-living young man who worked and travelled and who intended to settle down to a life of constant work in the near future. Your prospects of rehabilitation must, in all the circumstances, be regarded as good. Your offending is objectively serious. The amount and purity of methamphetamine trafficked by you, means that public denunciation, just punishment and general deterrence must be the principal sentencing considerations when arriving at an appropriate sentence in your case.
18 Would you please stand up.
19
By this sentence, I must denounce your conduct. I must punish you and deter you and others from committing crimes of a similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you to 14 years' imprisonment and
I order that you serve ten years' imprisonment before you become eligible for parole.
20 Your sentence is to commence today.
21 I declare that you have spent 507 days by way of pre-sentence detention, not including today.
22 Are there any other matters that need to be dealt with?
23 MS FOX: No, Your Honour.
24 MR MORRISSEY: As the court pleases.
25 HIS HONOUR: Remove the prisoner.
26
Once again I would like to thank counsel for your assistance in this matter.
I will stand down until 11.30.
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