Director of Public Prosecutions v Qiao

[2018] VCC 1853

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02100

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIN QIAO

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 November 2018
CASE MAY BE CITED AS:	DPP v Qiao
MEDIUM NEUTRAL CITATION:	[2018] VCC 1853

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms King	Office of the Commonwealth Director of Public Prosecutions
For the Accused	Mr Yang	Paul Vale Criminal Law

HER HONOUR: 

1Lin Qiao, you have pleaded guilty on indictment to a single charge of possessing goods, being tobacco products, knowing the good are imported with intent to defraud the revenue.  The offending was committed between 1 June and 21 June of this year.  The offences carries a maximum penalty of 10 years imprisonment.  This maximum is reflective of the seriousness with which Parliament regards the offence.

2The details of your offending are set out in a document entitled “Prosecution Opening upon Plea”.  It is dated 19 October 2018.  The contents of this document are not disputed by your counsel and will be annexed to these reasons. 

3In short compass, you assisted your co-accused, Di Shao, in the transportation of tobacco products from Sydney to Melbourne on three occasions, those being on the 1st, the 13th and the 20th of June of 2018. 

4At that time you resided with your co-accused and assisted him to retrieve parcels from various locations in Sydney and drove Mr Shao to several post offices to collect parcels.  These parcels were conveyed back to Mr Shao's address and unpacked.  You assisted with the unpacking and storing of these items. 

5The packages contained Chinese-branded cigarettes.  Apart from assisting Shao with the collection of parcels, you also assisted him with personal matters.  He suffers from diabetes which had affected his eyesight, as such Mr Shao relied on you to play a role as his chauffeur. 

6You had a long-standing friendship with your co-accused Mr Shao since childhood.  He had arrived in Australia from China some 20 years earlier.  You came to Australia from China with the sole purpose of being involved in this activity, arriving on the 1st of June of 2018.

7It is accepted by the parties that your role was to do as directed by Mr Shao.  In relation to these packages, the prosecution are unable to establish the precise quantum of duties evaded as the consignments were not seized.

8From various footage and photographs obtained, an estimated quantum has been arrived at.  That estimate is that the quantum of total duties evaded in relation to the tobacco products dealt with by you is in the amount of $68,147.32.  I am told that this is a relatively low amount compared to other like prosecutions.

9A field interview was conducted between you and the Australian Border Force officers during an execution of a warrant at Shao's home.  In that field interview, you admitted conveying tobacco from Sydney and to unpacking tobacco with Mr Shao.  You denied knowledge about the illegality of what occurred.  This position is hard to accept given the overall circumstances, and your plea, but you are otherwise described as being cooperative with authorities. 

10You now admit that you were to financially benefit from assisting Mr Shao and that he was to pay you $1500 per trip to Sydney.  He relied on your longstanding friendship to further entice you into this activity.  Of course none of this excuses your offending, it merely puts context to it.

11You were remanded into custody on 21 June 2018 and as of today's date, have spent 145 days in custody. 

12I note that Mr Shao has a plea listed in the County Court in March of next year.  He is charged with matters which could only be described as considerably more serious than that to which you have pleaded guilty.  He is still yet to be dealt with and parity in sentencing has little role to play.  However your offending is serious and general deterrence is the primary sentencing consideration. 

13Offences of this nature directly affect the revenue and therefore are capable of directly impacting on all citizens.  You had arranged false identification, which although not alleged to be used, was presumably designed to further disguise your activity.  This type of offending is notoriously difficult to detect in any event. 

14I take into account that your role is very much a lesser one than that of Mr Shao but it was still an important role and capable of making a contribution to the sophisticated and lucrative enterprise in which you were briefly involved. 

15As I am required to do, I take into account matters personal to you.  You are currently aged 32 years and were 31 at the time of the offending.  You were born in China and remain a resident there. 

16You are the only child of your parents who divorced when you were six months of age.  You were placed into the care of your grandparents.  You had limited contact with your father and almost no contact with your mother.

17You have unilateral deafness and only 30 per cent hearing in the other ear.  Your understanding is that this condition will continue to degenerate. 

18The difficulty with your hearing has impacted on your speech, as such during your schooling years, you were subject to teasing and bullying.  Some ten years ago you obtained your own premises and you presently reside alone.  In the lead up to this offending, you had been working as a sales manager.  I am told that you in fact quit this position to come to Australia.

19According to records tendered by your counsel, you have previously had a diagnosis of depression but ceased your medication for this condition when you came to Australia.  You are un-medicated in the prison setting. 

20You have pleaded guilty at an early opportunity.  I accept that your plea has saved the court time and expense of contested proceedings, as well as the witnesses the stress associated with being required to give evidence.  I accept your plea has utilitarian value and has facilitated the course of justice.  I do accept that your plea is also one borne of some remorse.  These are factors that will be taken into account in your favour. 

21I accept the submission that there are aspects of your incarceration that make your time in custody more burdensome.  These include the fact that this is your first time in custody in Australia, you have had no visitors, you can only contact family members by telephone when you have sufficient funds to be able to do so.  Your command of English is limited, if not non-existent.  Your hearing difficulties are such as to add to the difficulties you face in custody.  You have been extremely isolated within the prison system.  This, in my view, adds to the weight that should be given in sentencing to the time that you've already served in relation to these matters. 

22Taking into account your personal circumstances, the sanction and deterrence associated with the time in custody you have served thus far, and your lack of prior criminal history, I am also satisfied that your prospects for rehabilitation are high.  There does not appear to be a need to give much weight to either specific deterrence or protection of the community. 

23I am told that the Department of Home Affairs has cancelled the visa which you held and you are to be deported to China post completion of any sentence imposed this day. 

24I also take into account the provisions of s.16(A)(1) of the Crimes Act were relevant to your matter.  It requires the court to impose a sentence which is of severity appropriate in all the circumstances of the offence. 

25Both parties submit that the 145 days that you have served is sufficient to properly reflect those relevant sentencing considerations.  There is no guidance to me from any comparable case. 

26Having come to the conclusion that I must impose a term of imprisonment, under s.17(A)(2)(b) of the Crimes Act I direct that my reasons for so finding be entered into the records of the court and that a copy of my revised reasons for sentence be entered in the court records to stand as the reasons required under the section to which I have just referred.

27I am satisfied that in the proper considerations of the matters raised on your plea, that in relation to the single charge on the indictment, a sentence of 145 days should be imposed and I do so sentence. 

28Provision for such a sentence is allowed by s.19(A)(C)(3) of the Crimes Act. The sentence that I have just imposed commences today. Under s.16(E) of the Crimes Act I declare that the period of 145 days be reckoned as time already served under this sentence and that this declaration be entered into the court's records. 

29Section 16(AAA) of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charge. 

30If not for your plea of guilty, I would have sentenced you to a total effective sentence of eight months.  Thank you.  Ms King is there anything that I missed?

31MS KING:  No, Your Honour.

32HER HONOUR:  Very reassuring, thank you very much.  All right, I thank the parties for their assistance.  You are both excused. 

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