Director of Public Prosecutions v Xie, Hong
[2013] VCC 543
•19 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 12-01843
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HONG XIE |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2013 | |
DATE OF SENTENCE: | 19 April 2013 | |
CASE MAY BE CITED AS: | DPP v Xie, Hong | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 543 | |
REASONS FOR SENTENCE
---
Subject: Importation
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Lou | |
| For the Accused | Ms S. Wendtland |
HIS HONOUR:
1 Hong Xie, you have pleaded guilty to two charges of importing into Australia Tier 1 goods, being pseudoephedrine, being reckless to the fact that what you were importing was in fact Tier 1 goods. Each of those offences carries a maximum penalty of imprisonment for five years and/or a fine of 1000 penalty units. As you can see from the maximum penalties prescribed by the Parliament, these are very serious matters.
2 Section 16A(1) of the Crimes Act 1914 of the Commonwealth, the Act requires me, in sentencing you, to impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2)(g) of the Act requires me to take into account in sentencing you the fact that you have pleaded guilty to these offences, and s.16A(2)(h) requires me to take into account the fact you have cooperated fully with those investigating your conduct.
3 You were committed for trial after a contested committal but that was in respect of other charges. After committal the charges which you have pleaded guilty to were negotiated with the prosecution. I treat you as having pleaded guilty at an early stage. By your pleas of guilty you have saved the time and cost of a trial. For that you are entitled, in my view, to a lesser sentence to that which I would have otherwise imposed had you pleaded not guilty and faced being sentenced after having been convicted by a jury. This will be reflected in the sentence I will shortly impose.
4 I turn to the circumstances of your offending. You were the person in Australia to whom unknown persons in China sent 3,667.6 grams of pure pseudoephedrine by post. You provided the address for two parcels to be sent to you and you attended at the post office to collect the first parcel when you were arrested. The second parcel followed shortly afterwards. The chemical was mixed with other substances and was concealed in metal rings.
5 The full circumstances of your offending are contained in a prosecution summary tendered and marked as Exhibit A. That document was read to the court by the prosecutor and accepted by your counsel as accurate and as forming a proper basis upon which I can proceed to pass sentence. It is not necessary that I repeat what is there contained in full. On the plea the prosecution concedes that you were employed on the promise of only the payment of $500. This may be compared with other evidence that shows that the value of the substance you imported, if sold as pseudoephedrine, was between $327,500 and $655,000. It follows that the prosecution concedes you were employed as a dupe.
6 I admitted into evidence a letter written by you in which you explained that your attempts to contact your so called "friend" failed and he was nowhere to be found. When interviewed you made full admissions and you cooperated fully with the investigating police. Section A(2)(f) requires me to take these matters into account in sentencing you, and I have done so.
7 You are age 25 and you are a Chinese national. You come from the province of Fuqing in Southern China. Your parents are hard working and of a humble background. In 2006 they raised some money to send you to Australia to study. You returned home annually for the Chinese New Year and then came back to Australia. In 2009 you were injured in a car accident where you were a pedestrian. You broke your leg and this affected your ability to work and study. In 2011, with difficulty, you were studying and working as a kitchen hand and doing painting. You over stayed your visa because of a romance. It was in these circumstances that you were vulnerable when approached to assist with what now turns out to be a significant drug importation.
8 You have now been in custody since the time of your arrest, a period of 470 days or 15 months and 14 days. Because of your nationality and the fact your broken English is poor, your time in prison has been especially hard for you. I accepted into evidence a psychological report from Carla Lechner, which is helpful in setting out in more detail your background.
9 In passing sentence I have had full regard to that report. Section 16A(2)(m) requires me to take your background circumstances into account in sentencing you and I have done so. Section A(2)(p) requires me to take into account in sentence you, hardship to your family consequent upon a term of imprisonment being imposed. I accept what you say, that your mother has failing health and that you want to return to China to see her. Section 16A(2)(m) of the Act requires me to have regard to your prospects for rehabilitation. I assess your prospects for rehabilitation as excellent. I very much doubt you will re-offend again in this way.
10 In your letter you express remorse and speak of the shame you feel of what you have done. I accept that to be the case. Section 16A(2)(j) requires me to have regard to the deterrent effect that any sentence I pass will have upon you, and s.16A(2)(k) of the Act requires me to ensure that you are adequately punished for your offending.
11 The prosecution submits that an appropriate sentence here is in the range of a head sentence of 20 to 28 months, with you being required to serve 12 to 18 months of that term. Mr Edney asked that I construct a sentence, meaning that you be eligible for release on the basis of the time you have already served. The prosecution in the circumstances, does not disagree with this. Having given the matter a great deal of thought since the hearing of the plea I have concluded that the imposition of a term of imprisonment is the only appropriate disposition in all of the circumstances of this case. Offending of this type is becoming more and more prevalent and the sentence the courts impose for this offending must serve as a deterrent.
12 Please stand, Mr Xie.
13 On Count 1 you are sentenced to a term of imprisonment of 20 months. On Count 2 you are sentenced to a term of imprisonment of 20 months. Pursuant to s.19(2) of the Act I direct that the sentence imposed on each count commence this day so that they are concurrent. This results in a total effective sentence of 20 months' imprisonment.
14 I declare that you have already served 471 days pre-sentence detention, including this day, and that 471 days be reckoned as having been already served under the sentences imposed by me this day and deducted administratively. Because the total of the sentences I have imposed does not exceed three years I am required by s.19AC of the Act to suspend part of this sentence. I propose to suspend four and a half months of the total effective term of imprisonment. Accordingly, after you have served the period of 15 and a half months, namely tomorrow, you may be released on a recognisance in the sum of $1000 without surety, to be of good behaviour for a period of 12 months.
15 For the purposes of s.6AAA of the Sentencing Act 1991 Victoria, I state I have imposed a sentence, being a term of imprisonment in respect of the two counts, and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed an effective term of imprisonment of four and a half years and I would have directed that you serve at least three years of that sentence before being eligible for release on recognisance.
16 Mr Xie, I am required by s.16F of the Act to explain this sentence to you. The purpose of the sentence is to reflect the gravity of the offences but also to spare you the need or requirement to serve the full term of 20 months imprisonment. You will be released on recognisance in the next day or so. If you are of good behaviour over the next 12 months that will be the end of the sentencing process insofar as this court is concerned. If you are not of good behaviour you will, in all likelihood, be brought back before this court, and depending upon the nature and seriousness of your transgression the court may impose a fine up to $1000 or extend the period of good behaviour or impose a different penalty or you may be sent back to prison to serve the balance of your sentence of four and a half months. You may apply to the court to vary the terms of the recognisance from time to time. I ask you whether you are prepared to enter into the recognisance. It requires your agreement that is why I am required to ask you. Very well.
17 Are there any questions arising out of that?
18 MS LOU: No, Your Honour, other than to just clarify the time served.
19 HIS HONOUR: Have I got the pre-sentence - the time served?
20 MS LOU: Yes.
21 HIS HONOUR: Is that right? Is it 470 days today, is it?
22 MS LOU: It's 470 today.
23 HIS HONOUR: I said 471, did I?
24 MS LOU: Yes, Your Honour.
25 HIS HONOUR: Very well. It will be amended to read 470.
26 MS LOU: thank you, Your Honour.
27 HIS HONOUR: I'm not sure whether that will be a matter for the authorities to work out when Mr Xie is to be released but it will be within the next day or so.
28 MS LOU: Yes, it will, Your Honour.
29 HIS HONOUR: And I haven't concerned myself about other matters. They will take care of themselves I assume.
30 MS LOU: Yes, Your Honour, they are aware of this matter.
31 HIS HONOUR: Yes. I am sorry, Ms Wendtland, are there any matters arising out of that so far as you are concerned?
32 MS WENDTLAND: No, Your Honour.
33 HIS HONOUR: Very well.
34 MS LOU: I have prepared the recognisance release order, Your Honour.
35 HIS HONOUR: Thank you. Ms Wendtland, it is my clear intention that your client be released today or tomorrow.
36 MS WENDTLAND: Yes, Your Honour.
37 HIS HONOUR: I wonder, sometimes things can go wrong with these matters. I wonder if I could ask you to just check - you or someone from your office to check with Corrections on Monday that your client has been released from prison. I understand he will probably be taken into custody by the immigration people. That is another matter, but could you just check on Monday that these orders have been carried out?
38 MS WENDTLAND: Yes, certainly, Your Honour.
39 HIS HONOUR: Thank you.
40 MS LOU: Pardon me, Your Honour.
41 HIS HONOUR: I am sorry, Ms Lou. Yes.
42 MS LOU: Yes. Just the matter of the forfeiture of the mobile phones.
43 HIS HONOUR: I am sorry, yes. Yes, I forgot about that.
44 MS LOU: Yes.
45 HIS HONOUR: Did you come to some arrangement?
46 MS LOU: Yes, Your Honour. We seek forfeiture of the - - -
47 HIS HONOUR: I am sorry, this new photocopier is very noisy. Just a moment. Yes, Ms Lou.
48 MS LOU: Yes, Your Honour, we seek forfeiture of the two Apple mobile phones, and it is by consent.
49 HIS HONOUR: Yes, very well. The prosecution seeks forfeiture of two mobile phones found in the possession of Mr Xie, and those orders being unopposed I will sign them.
50 MS LOU: Thank you, Your Honour.
51 HIS HONOUR: Yes, I have signed those orders, thank you.
---
0
0