Director of Public Prosecutions v Yang

[2016] VCC 1214

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01092

THE QUEEN

v

FAN YANG

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2016
DATE OF SENTENCE:	22 August 2016
CASE MAY BE CITED AS:	DPP v Yang
MEDIUM NEUTRAL CITATION:	[2016] VCC 1214

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For The Queen	Ms M. Fox	Commonwealth Director of Public Prosecutions
For the Accused	Mr M.P. McGrath	Doogue O’Brien George

HIS HONOUR:

1Fan Yang, following a trial that occupied ten sitting days in this court you were found guilty by the jury of the following charges:

Two charges of Importing a Commercial Quantity of a Border controlled precursor contrary to s.307.11(1) of the Criminal Code.  The maximum penalty for that offence is 25 years' imprisonment;

One charge of Importing a Marketable Quantity of a Border controlled drug contrary to s.307.2(1) of the Criminal Code.  The maximum penalty for that offence is 25 years' imprisonment; and

One charge of Importing a Commercial Quantity of a Border controlled drug contrary to s.307.1(1) of the Criminal Code: the maximum penalty for that offence is life imprisonment.

2You were found not guilty by the jury of another charge of importing a marketable quantity of a border controlled precursor. 

3You have no prior convictions, subsequent convictions or outstanding charges.

4The convictions concern the importation into Australia of the following -

(i) In relation to Charge 2 on the Indictment, 2.373 kilograms of pure ephedrine concealed in rolls of wallpaper consigned from Malaysia to an address in Clayton;

(ii) In relation to Charge 3 on the Indictment, 2.453 kilograms of ephedrine concealed in rolls of wallpaper consigned from Malaysia to an address in Burwood;

(iii) In relation to Charge 4 on the Indictment, 331 grams of pure methamphetamine concealed in speakers consigned from Malaysia to your address in Doncaster; and

(iv) In relation to Charge 5 on the Indictment 1.017 kilograms of pure methamphetamine concealed in hot dog roll machines consigned from China to an address in Mitcham.

5With the exception of the package the subject of Charge 4, which was consigned to your address, the packages were all consigned to addresses of friends or associates of yours who were enlisted by you to receive them.  You therefore must have provided these addresses to the person or persons who consign the packages from China and Malaysia.  Whilst it appears the substances were consigned from two different countries, it does not follow that you had contacts in both of them.

6You tracked the packages following their consignment on the delivery company's websites and in relation to the delivery of the package the subject of Charge 2, I also accept that you conducted observations of that, when it was the subject of a controlled delivery to your friend, Esther Liu.

7Your offending occurred over a period of approximately one month and it concerned two different substances.  Whilst it is not possible to identify the precise nature of your role in the offending, in my opinion, you occupied a trusted and important management role in a criminal syndicated engaged in these importations.  You were willing to exploit friends and associates to facilitate your offending. 

8It is well established that persons such as you who import illegal substances for profit must expect the imposition of a significant term of imprisonment on conviction. 

9The sentence that I impose must be calculated to deter others from this offending and our society must also be protected from people like you who offend in this manner.  You must also be punished for your planned and organised criminal activity.

10Charges 2 and 3 on the Indictment concern the importation of a border controlled precursor, namely ephedrine.  The evidence led in the trial established that the potential yield from the use of that substance to manufacture methamphetamine is 90 per cent of the weight of the ephedrine.  Accordingly, the ephedrine the subject of Charge 2, would yield 2.135 kilograms of methamphetamine and the ephedrine, the subject of Charge 3, would yield 2.207 kilograms of methamphetamine.  Thus it is clear that the charges that you are to be sentenced for concern significant quantities of a border controlled drug and a border controlled precursor which in turn were of significant value.  In my opinion, you expected to receive a correspondingly significant financial return as a result of your offending.  Although it is not possible to precisely quantify this.  What is clear is that you were engaged in the business of importing an illegal drug of dependence and a drug used in its manufacture into this country and such activity causes incalculable damage to our society.

11I now turn to your personal circumstances.  You were born on 8 November 1989 in China.  You were the only child of your two supportive parents.  Your family are well off by Chinese standards and your family life is a stable one.  You migrated to Australia in 2008 to further your education at your family's suggestion.  You have completed a Batchelor of Commerce at Deakin University and have Diploma level qualifications in computing.  This demonstrates that you are, in my opinion, of at least average intelligence, although you are not fully proficient in English.

12I have received in evidence a psychological report of Dr Matthew Bath which discloses that you do not suffer from any psychiatric or psychological conditions, although I accept that you are anxious and distressed by reason of your conviction for these offences.

13I have also received in evidence a number of character references that attest to your previous good character and I accept that you are a person who is well regarded by your peers. 

14In my opinion, any assessment of your prospects for rehabilitation must be approached with a degree of caution.  You have shown no remorse for your offending and according to Dr Bath expressed "disappointment" at the jury's verdict despite the fact that the evidence of your guilt was very strong.  And as I have also observed, you were a trusted member of a criminal organisation engaged in drug importation for substantial profit.  Balanced with this is your relative youth, which is of some significance in this regard.

15Your counsel submitted that you plan to reside permanently in Australia, and following your conviction you now face the prospect of deportation.  Whilst it cannot be said that you will in fact be deported I accept that this is a matter that will weigh upon you during your incarceration.  I also accept that your imprisonment will mean that you will experience a degree of isolation from your family, although it would appear that you can speak to them by telephone and you also have the support of the friends you have made in Australia.

16In Nguyen v R and Phommalysack v R [2011] VSCA 32 at paragraph 34 the President of the Court of Appeal set out a number of principles relevant to sentencing for offences of this type, and in relation to principles 7, 8 and 9 His Honour said as follows:

The difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case. 

The sentence to be imposed for a drug importation offence must signal to would be traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. 

Involvement as any level in a drug importation offence must necessarily attract a significant sentence.  Otherwise the interests of general deterrence are not served.

17I have applied these principles together with the other principles set out by His Honour in his judgment and the principles referred to in s.16A of the Crimes Act (1914) in arriving at an appropriate and proportionate penalty in your case. I also accept that the importation of a border controlled precursor is less serious than the importation of a border controlled drug but as Keane JA said in
R v. Chandler [2010] QCA 21 at 24, it is:

"not greatly less serious".

18In the result the sentence of the court is as follows:

On Charge 2 you are convicted and sentenced to be imprisoned for five years.  I direct that this sentence commence on 22 February 2017;

On Charge 3 you are convicted and sentenced to be imprisoned for five years.  I direct that this sentence commence on 22 February 2013;

On Charge 4 you are convicted and sentenced to be imprisoned for three years and six months.  I direct that this sentence commence on
22 August 2016, that is today;

On Charge 5 you are convicted and sentenced to be imprisoned for seven years.  I direct that this sentence commence on 22 February 2019.

19This makes for a total effective term of imprisonment of nine years and six months. 

20I direct that you serve seven years' imprisonment before becoming eligible for release on parole. 

21I declare that you have served 71 days pre sentence detention not including today.

22Are any further orders required?

23MS VERDON:  No, Your Honour

24MR McGRATH:  No, Your Honour, not that I am aware of, no.

25HIS HONOUR:  Thank you.

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