Director of Public Prosecutions v Su

[2018] VCC 1664

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -18-00313

DIRECTOR OF PUBLIC PROSECUTIONS

v

XIAO YU SU

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2018
DATE OF SENTENCE:	11 October 2018
CASE MAY BE CITED AS:	DPP v Su
MEDIUM NEUTRAL CITATION:	[2018] VCC 1664

REASONS FOR SENTENCE
---

Subject:  criminal law - sentence
Catchwords: Pleaded guilty  two charges trafficking drug of dependence large commercial quantity -  35 year old- financial problems -  drug user - -  prior conviction  of trafficking – early plea  - general deterrence – denunciation to protect community
Cases Cited: DPP v Djordjic [2018] VSCA 227
Sentence: ten years 6 months non-parole period of 7 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata (Plea) Ms V. Nguyen (Sentence)	Office of Public Prosecutions
For the Accused	Mr A. Jackson	Theo Magazis solicitors

HER HONOUR:

1Xiao Yu Su, you have pleaded guilty to two charges of trafficking a drug of dependence in a large commercial quantity.  Both charges arise from the same circumstances with one charge relating to 1.7 kilograms of heroin and the other relating to 1.79 kilograms of methylamphetamine.  The drugs were found in packages and plastic bags stored together in a safe in your hotel room together with $50,000 in cash.

2In September 2017 you had been staying in a Melbourne hotel for several nights and were due to check out on 16 September at 11.00 am.  At 11.33 am the duty manager called your room because you had not checked out.  There was no answer and so staff went to the room and found your belongings still there. 
You were not present and the electronic passcode safe in the wardrobe was still locked.  After several attempts to contact you management decided to remove your belongings from the room. 

3A security officer unlocked the safe using a special device.  Several items were observed inside it including the $50,000 cash, a glass pipe and lighter and two plastic bags.  The security officer looked inside one of the bags and saw what appeared to be about two kilograms of a white granular substance.  He placed the bag back in the safe and secured the room.  Other security staff were called to view the contents of the safe and then the police were called.

4The police arrived at the reception area of the hotel and at that moment you happened to approach the desk of the concierge where you were arrested. 
You were searched and found with two mobile phones, car keys and cash of just under $8000.  The items from your room were seized.  Packages found in the safe were found to consist of compressed white powder containing heroin with a total weight of 1.7565 kilograms which was of between 78 per cent and 82 per cent purity and that is Charge 1.  The two plastic bags in the safe were found to each contain methylamphetamine with a total weight of 1.7925 kilograms of 81 per cent to 82 per cent purity and that is Charge 2. 

5When interviewed by the police you said the cash in the safe was from the casino and borrowed from friends and that the glass pipe was for your own use as a user of ice.  You conceded that the drugs were yours because they were found in your room, saying that they had been brought to you a few days previously when you were staying at a different hotel.  You said the cash included $20,000, won, at the casino and the rest was borrowed from friends.  The police later checked casino records which showed you had not won $20,000.  You denied trafficking but said you were the storer of the drugs and you conceded that that was trafficking according to law.  You were charged that day and remanded in custody having now spent 390 days in pre-sentence detention. 

PERSONAL CIRCUMSTANCES

6That brings me to your background and personal circumstances.  You are a
35 year old married man separated from your wife due to circumstances relating to her residency status in this country.  Your parents are well educated people who came to Australia as political refugees from China with you and your sister when you were aged 11.  Your family spent three years in a refugee camp in Western Australia and thereafter your parents worked very hard to establish themselves.  You were educated to Year 11 and later began a career in real estate in Perth.  With the help of your parents you bought land and became a property developer.  You sold the land as a sub-division and with the profits you branched out into the restaurant business.  After establishing a restaurant you and your business partner parted ways but your parents still work in that restaurant. 

7You became over committed in the property business while at the same time trying to set up new restaurants.  During the global financial crisis you lost everything and you had a debt of about $1.2 million.  Your parents put up their house as security so you would not be made bankrupt.  You could not face them so you left Perth early in 2009 and went to Sydney.  There you became involved in drug use.  In 2012 you came to Melbourne and became further involved with drugs hoping to get enough money to pay off your debts and get back into the property business.

8Meanwhile in Sydney you met your partner, Sujin Moon who was on a student visa studying English.  You married in 2014 and she was a significant support to you while she waited for permanent residency.  She became pregnant but sadly lost the baby, which caused considerable stress and anxiety for you both.  She was unable to obtain a visa to remain in Australia and despite challenges and reviews of the decision, she had to leave the country.  With your relationship ending in that way and without her support you lost direction and reconnected with negative associates and drug use. 

9In custody you have become drug free and have had the opportunity to reflect on your past and what you intend to do in the future.  Your immediate future is, of course, pre-determined by the course you have taken and becoming involved in drug trafficking.  These are very serious charges, the more so because a large commercial quantity is involved.  The maximum penalty for each offence is life imprisonment.

10The most important sentencing principles in a case such as this are general deterrence and denunciation by the court to deter others from offending in this way and to provide protection to the community as well as the principle of specific deterrence to deter you, yourself, from offending again and overall the achievement of a just and appropriate sentence taking into account your personal circumstances and the gravity of the offending.

11Your role in this instance of trafficking is an aspect of the gravity of your offending and that is determined by the fact that you stored a large commercial quantity of drug of dependence dropped off to you at your hotel by someone you did not name, which indicates that you were entrusted with drugs with a potential value of more than $1 million.  

12You do not come before the court as a first offender.  On 23 February 2015 you were sentenced by His Honour Judge Maidment of this court for trafficking methylamphetamine in a commercial quantity and sentenced to a Community Correction Order.  You had not been to prison before but you had court appearances and convictions for the use and possession of methylamphetamine for which you had received fines.

13At that stage you appeared to have good prospects for rehabilitation with your wife supporting you.  You breached that order through non-compliance including continuing drug use and you appeared before Her Honour Judge Cotterell, who fined you for the breach but made no further order.  You had completed the hours of unpaid community work but had failed to fulfil other obligations.

14The good prospects for rehabilitation you seem to have had at that time have unfortunately come to nothing with your offending having become much more serious even though you were fully aware of the consequences and importantly as a user yourself, you would have been aware of the harm that could be caused in the community by the distribution of such a large quantity of illicit drugs.

15As I said earlier, because of the quantity of drugs being trafficked, you are facing a very severe sentence to be mitigated only by the early plea and acceptance of your criminality and to some extent by the explanation as to your personal circumstances prevailing at the time you offended.  Your entrepreneurial efforts had ended in loss of face both professionally and within your family, later compounded by the ending of your marriage in circumstances that were clearly very difficult for you. 

16Your criminal history is limited and is tied directly to drug use initially and escalating once your debts became overwhelming.  In that sense the picture is clear but it follows that your prospects for rehabilitation are not good and so there is little justification for a reduction of your sentence on that basis.  It is in your favour that you pleaded guilty at an early stage, a plea which has facilitated the progress of the case and avoided a trial and for that utilitarian benefit you are entitled to a discount on your sentence.

17You have never denied the gravamen of the charges or sought to sidestep your responsibility for the crimes.  While that suggests remorse on your part there is no actual expression of it and I can only place limited weight upon that aspect of your attitude.

18You are very socially isolated in prison with no visitors and only occasional telephone calls with your parents, although you are able to speak to your sister in Perth by phone each week.  You have only intermittent contact with your wife who is living in Korea.  I take into account that you are isolated in this way.

19You are to be sentenced as a serious drug offender for Charge 2 and so in sentencing you for that offence I am obliged under s.6D of the Sentencing Act to regard the protection of the community from you as the principal purpose for which your sentence is imposed.  I note that the prosecution does not seek a sentence that is disproportionate to the offending in order to achieve that purpose.

20I was referred to the recent case of DPP v Djordjic [2018] VSCA 227 dealing with appropriate sentences in cases such as this and providing guidance in relation to quantity-based sentencing in drug trafficking cases.  Given that the offending was confined to a limited period and the heroin and methylamphetamine were found in the same place and at the same time there should be considerable concurrency.  In this regard I have considered the principles of totality and proportionality.  Would you stand now please, Mr Su?

21I sentence you to a term of imprisonment of ten years for each charge. 
Charge 1 will be the base sentence and six months of the sentence for
Charge 2 will be served in cumulation on the base sentence.  That results in a total effective sentence of ten years and six months.  I order that you serve seven years before being eligible for parole.

22You have been in custody for 390 days.  I declare that time to be reckoned as already served.  I shall cause that to be noted on the court record.

23Pursuant to s.6AAA of the Sentencing Act if you had pleaded not guilty to these charges I would have sentenced you to 13 years imprisonment with a non-parole period of ten years.

24The prosecution seeks an order for forfeiture of the cash of $50,000 and I make those orders.  I had not noticed whether they were opposed or unopposed?

25MR JACKSON:  No, they're not opposed.

26HER HONOUR:  Not opposed, thank you.

27HER HONOUR:  Any other matters?

28MR JACKSON:  No.

29HER HONOUR:  No thank you.  You may take Mr Su now, thank you officer.

‑ ‑ ‑