Director of Public Prosecutions v Wang

[2019] VCC 907

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00271

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIZHENG WANG

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2019
DATE OF SENTENCE:	19 June 2019
CASE MAY BE CITED AS:	DPP v Wang
MEDIUM NEUTRAL CITATION:	[2019] VCC 907

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty – traffick in drug of dependence namely 1,4-butanediol (commercial quantity) – role as a delivery facilitator – basis of trafficking charge one day only – no criminal record alleged – co-operation with authorities

Cases Cited:Sharbell v The Queen [2018] VSCA 324; Director of Public Prosecutions vDalgliesh [2017] HCA 41

Sentence:Convicted and sentenced to total effective sentence of 4 years’ imprisonment with a non-parole period of 30 months’ imprisonment – 233 days pre-sentence detention declared as having already been served as part of sentence imposed – s6AAA Sentencing Act 1991 declaration – ancillary orders Forfeiture, Disposal and Forensic Sample orders made

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire	Solicitor for Public Prosecutions
For the Accused	Mr C. Terry	VLA

HER HONOUR: 

1Jizheng Wang, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, namely 1,4-butanediol.  The maximum penalty for this offence is 25 years' imprisonment which reflects the seriousness with which Parliament regards this offence and is one of the matters which I must take into account in sentencing you.  Further, the legislature has recently seen fit to require that nothing short of a gaol term is warranted in respect of the offending in which you engaged in your case.

2By way of background, I was told by the learned prosecutor that at the time of the offending you were 27 years old and you are now 28.

3You were born in China and travelled to Australia on a student visa in 2010 and then again in 2011.  You studied at various institutions.  At the time of the offending, your visa had expired.  I will refer to this aspect a little later on.

4The factual basis of your offending is as follows:  In September 2018, members of the drugs task force commenced an investigation in relation to importation of 1,4-butanediol from China to Melbourne.  I understand that this substance is not a border controlled drug and so it is not illegal to import it, as such.

5On 26 October 2018, an Australian Border Force, (ABF) officer was working at the Melbourne Gateway Facility, X-raying, screening and examining internal mail articles arriving into Australia.  The officer selected two mail articles after seeing X-ray images showing both packages to contain four bottles of liquid.  The two packages had Australia Post tracking numbers ending 654HK and 671HK.  The package with the first tracking number, 654HK, was addressed to Will Shen of 17/24 Woorayl Street in Carnegie with a mobile phone number which ended in the numbers 492 and the package gave a description of its contents as ‘whitening products’.

6The package with the second mentioned tracking number, 671HK, was addressed to Will Shen of 1/40 Tranmere Avenue in Carnegie with the same phone number as the first. 

7Both packages were from the same sender, being No.122 Hong Kong Street, Kowloon Bay, Hong Juan, Hong Kong.  The packages were examined by ABF officers and found to each contain four bottles of liquid.  Subsequent analysis revealed that each of the bottles contained 1,4-butanediol.  Forensic analysis of the bottles plus another bottle found in your backpack revealed a total weigh of 9.19 kilograms.

8The threshold for commercial quantity of this substance is 2 kilograms. 

9The bottles were removed from the packages and police arranged for a controlled delivery of these to the addressees. 

10On Monday, 29 October 2018,
Detective Senior Constable Igor Ruznia, purporting to be an Australia Post delivery driver attended 1/40 Tranmere Avenue, Carnegie at 4.42 pm to deliver the package with the tracking number ending 671HK.  The officer observed you standing at the front of the premises. 

11Mr Ruznia pressed the intercom button for apartment No.1 and you said to him, 'Hi, I think that package is for me'.  Mr Ruznia said, "Will Shen, is that you?'  You said, 'Yes' and Detective Senior Constable Ruznia asked you for identification.  You produced a Chinese passport in the name of Jihan Shen.  Mr Ruznia asked why the name on the passport was different to that on the package and you said that ‘Will’ was your ‘Aussie’ name.  Mr Ruznia entered your details, as per the passport provided, into the Australia Post scanner, scanned the barcode on the package and you signed for it.

12You said to Mr Ruznia, 'I'm also waiting for another package' and showed him your mobile phone with the Australia Post tracking details for 654HK displayed on the screen which matched the second package seized and tested by ABF officers.  You took possession of this package too.  Once you had done this,
Mr Ruznia notified other police officers who were in the vicinity, that the exchange had taken place.  You were then approached and arrested.  You were searched by police where a number of items were seized from your backpack, namely, a black Apple iPhone, a Chinese passport in the name of Jihan Shen, a 1-litre bottle containing 6.9 grams of 1,4-butanediol and six Vodaphone SIM card packs.

13Police confirmed your identity from two Victorian drivers licences in your possession at the time of the arrest, bearing the name Jizheng Wang.  The address of 1/40 Tranmere Avenue was found to be unoccupied, so the search warrant obtained for that address was not executed.  You were taken to the Spencer Street police complex for interview. 

14During your record of interview, you said that you were contacted on an application called ‘WeChat’ by a Chinese man called ‘Evan’, who was advertising a job- picking up packages, and that the next day, you were provided with a passport in the name of Jihan Shen by another man.  You said that Evan provided you with the package tracking numbers via WeChat so that you could pick up the packages once they had cleared customs, and it was agreed that you would hand over the packages to another person and be paid $2,000 in cash.  Although there are exemptions in respect of individuals working with 1,4-butanediol for industrial purposes, you do not qualify for any of these.

15The substance qualifies as a drug of dependence and is associated with the illicit drug colloquially known as GHB.  I was told that butanediol converts into GHB upon entering the body.

16Mr Wang, your offending is serious and calls for a punishment which is just in all of the circumstances and your conduct must be firmly denounced.  In assessing the seriousness of your conduct, I have had regard to the fact that the quantity that you trafficked on the occasion in question was four and a half times the threshold for commercial quantity.  While your role was not near the top of the hierarchy, according to the Crown, it was nevertheless an important one and you were a trusted link in the evil chain of which you were a part.  Your role was to facilitate the delivery of the drug from its source in China to the consumer, as the Crown put it.

17You were prepared to engage in a subterfuge that was prescribed for you by others, which involved passing yourself off with a false identity and liaising with other offenders in order to facilitate delivery of this drug to you for financial reward.  You were not engaging in this activity in order to help fund a drug addiction, but you were prepared to facilitate drug abuse by others in behaving as you did.  In all of the circumstances, I find that your moral culpability is high. 

18In terms of the value of the drugs that you were prepared to traffick, I was referred to a previous judgment of this court in 2015 where values were discussed. The Crown told me that the value of the substance you trafficked would have been in the order of about $9,000 wholesale value, but a good deal more, if sold in smaller amounts at street level.  I do not speculate in this regard but I do accept that the value of the drug in question is considerably lower than a similar quantity of a number of other illicit substances, which also goes to the seriousness of your offending.

19In assessing the seriousness of your offending, I factor in that you are to be dealt with on the basis of having offended on one day only and that the payment that you were to receive was fairly substantial, although not the highest sum that one sees for this type of offending.

20You have no prior convictions, which is a matter in your favour, as it is relevant to my assessment of your prospects of rehabilitation.  Further, you pleaded guilty to the offence at the earliest stage, which entitles you to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.  You were also cooperative with the police, making full and frank admissions, although there was nothing that you told them, as I understand the position, that helped them pursue others involved in the offending. However, I make a further allowance in your favour for your cooperation.

21I do not accept that you have much in the way of insightful remorse in respect of what you have done, insofar as you have expressed concern for how the drug you were prepared to traffick can impact on others.  I accept that you are sorry that you were caught and the consequences of this for you, but in circumstances where, by your own admission, you have previously engaged in similar conduct to the offending before me.  I do not accept that you have much in the way of genuine remorse for anyone other than yourself.

22However, I do accept that from an early stage, you were prepared to take responsibility for your actions.  I make it clear that in sentencing you, I have not loaded the sentence to account for your admitted previous offending and I also note that in relation to it, you belatedly realised the true nature of what you were dealing with, in any event.

23I was told that at the time that you embarked on the offending before me, you had been refused a visa, which would have enabled you to work in Australia, and at the suggestion of a friend, you applied for a ‘protection visa’, without too much knowledge as to the grounds on which you applied.

24After a great deal of discussion at the plea hearing, your counsel, Mr Terry, who gave a solid plea on your behalf, conceded that there was no legitimate basis to argue that time in gaol would be harder for you because of your anxiety in respect to the prospect of deportation.  This was a most sensible concession,  as the questionable application that you made in a bid to stay here was plainly without foundation, so that your ability to stay in Australia has not been determined by your offending, although this certainly would not have helped you- But you could not have had a legitimate expectation of being able to remain here in the first place.

25However, I take into account that gaol for you will be harder because of the fact that you have little in the way of family or friends in Melbourne and that you will be somewhat isolated whilst serving your sentence.  In this regard, however, I understand that you have been in contact with a cousin who lives here on a regular basis, who lets your parents know how you are going.

26I take into account your background:

27You were born in China and you are now 28 years old.  Your parents separated after you came to Australia in 2010.  You were 18 years old when you first came here and you have gone home on only two occasions, in 2010 and 2011 as I previously mentioned.

28I was told that your parents funded your trips and also funded you living in Australia, especially when you were at school.  You came to Australia on a student visa, initially between 2010 and 2016.  You commenced a commercial cookery course at Chisholm Institute but did not complete this.  I was told that when you were living in Melbourne initially, you were reluctant to leave your flat to go to school, as you suffered from anxiety, which led you to move to Canberra, as you had a friend there.  You went on to complete a Diploma of Accounting at ANU in 2011, then moved back to Melbourne when you completed a Diploma of Commerce at Deakin University.  You then completed a Bachelor of Finance at that same university in 2014.

29I do not propose to address the facts in relation to your various applications for visas but I understand that you were not able to be legally employed while your 187 visa application was pending; therefore, you worked for cash on a casual basis in various lines of work in order to pay your bills.  Since being remanded you have worked full time in the prison and have been studying English, music and a number of other disciplines.

30I assess your prospects of rehabilitation as being very good and I need only place minimal weight on specific deterrence and protection of the community.

31However, I must place strong weight on general deterrence in a bid to deter others from behaving as you have. 

32There was a good deal of discussion in respect of current sentencing practice in relation to your case.  I have had regard to the cases referred to in this context and I bear in mind that this is but one consideration and not a controlling one when it comes to sentencing you.  I am also mindful of the recent decision of Sharbell v The Queen [2018] VSCA 324, a case concerning trafficking in a commercial quantity of the same drug that you trafficked and in particular the matters that the court referred to at paragraphs 63 to 67.

33As the court indicated in that case, referring to the High Court decision of the Director of Public Prosecutions vDalgliesh [2017] HCA 41, ‘(t)he only expectation that an offender can have at sentence is of the imposition of a just sentence according to the law.’ ([65], and quoting from DPP v Dalgliesh at [65]).

34Your counsel conceded that nothing short of a term of imprisonment with a non-parole period was appropriate in your case.  He further submitted that the non-parole period ought not be far beyond the time that you have already served, being in the order of about seven months.

35The Crown simply submitted that an immediate gaol term was warranted, reminding me that only such a penalty was available in your case.  In view of your offending, the matters which go to its seriousness and your moral culpability and in view of the matters in mitigation as well as the matters referred in discussion to me as to what the courts have said- current sentencing practice included, I have arrived at a sentence which, in my view, is appropriate and just in your case.

36Would you please stand up.

37You are convicted of the offence.

38I make the orders for disposal and forfeiture which were sought by the prosecution and agreed to by you.  I note, in that regard, that they withdrew their application for the forfeiture of your mobile phone.

39I make an order for a forensic sample to be taken by way of a buccal swab from the mouth.  I make the order because of the seriousness of the offence, because the order is not opposed and because it is in the public interest to make the order.  I must warn you that if you do not cooperate in the taking of this sample, an authorised officer or authorised officers may use reasonable force to obtain it.

40You are sentenced to four years' imprisonment and I direct that you serve
30 months before becoming eligible for parole.

41I declare that you have already served 233 days by way of pre-sentence detention which will be deducted from your sentence. 

42If not for you pleas of guilty, I would have sentenced you to six years' imprisonment with a non-parole period of four years.  Could you please take a seat, sir?  Is there anything arising?

43MS MAGUIRE:  No, Your Honour.

44MR TERRY:  No, Your Honour.

45HER HONOUR:  Very well.  Yes, thank you.  If you could remove Mr Wang.  Thank you, we'll now adjourn.

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