Director of Public Prosecutions v Yang
[2012] VCC 927
•5 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
CR 12-00477
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FEI YANG |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 July 2012 | |
CASE MAY BE CITED AS: | DPP v. Yang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 927 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bird | Office of Public Prosecutions |
| For the Accused | Mr I. Crisp |
HIS HONOUR:
1 Fei Yang, you are to be sentenced for one charge of attempting to possess a drug of dependence, pseudoephedrine. The maximum sentence in the circumstances of this case is five years' imprisonment.
2 You pleaded guilty before me on 29 June. When interviewed by police on 6 December 2011, you denied the offence. You gave a false explanation for your involvement. On 28 March 2012 committal went by hand-up brief, after which you entered a plea of guilty. The matter was quickly listed for plea hearing in this court. You receive the benefit of your plea of guilty and a high level of co-operation. You are being sentenced by this court only seven months after the offending. I accept that you are remorseful.
3 At the plea hearing, which ran on 29 June, Ms Bird, for the Crown, tendered a written Crown Summary. Mr Crisp, for you, tendered the report of forensic psychologist, Bernard Healey dated 29 March 2012, the report of your general practitioner, Dr Jim Yu, dated 31 January 2012, and a receipt document related to your involvement with the Buddhist Compassion Relief Tzu Chi Foundation. He called your wife, Jing He, and friends, Cheng Wang and Ying Bo Dai.
4 INTERPRETER: Excuse me, Your Honour, I'm terribly sorry. The accused asked to stop for a while because he wants the interpreter to interpret what you are saying.
5 HIS HONOUR: I did not hear that clearly, Ms Bird, perhaps you can tell me what was said - am I going to quickly?
6 MS BIRD: No - - -
7 INTERPRETER: Your Honour, please note, I am not a simultaneous interpreter, I can do consecutive.
8 HIS HONOUR: I didn't not hear that, what is being said to me, Ms Bird?
9 MS BIRD: One moment, Your Honour.
10 INTERPRETER: I want to pause for two minutes.
11 MS BIRD: She would like you to pause for two minutes, Your Honour, so she can explain the last portion of that to the accused.
12 INTERPRETER: I need to be paused. If you want to have another interpreter, I can - - -
13 HIS HONOUR: What is being said now?
14 MS BIRD: One moment, Your Honour.
15 MR CRISP: Your Honour, I think it's just a case of if Your Honour would be prepared to speak more slowly please, because I think the interpreter is having some trouble keeping up.
16 HIS HONOUR: Very well. I thought I was attempting to do that. I will go even slower. I will go back.
17 MR CRISP: Thank you.
18 MS BIRD: Thank you, Your Honour.
19 HIS HONOUR: At the plea hearing, which ran on 29 June, Ms Bird, for the Crown, tendered a written Crown Summary. Mr Crisp, for you, tendered the report of forensic psychologist Bernard Healey, dated 29 March 2012., the report of your general practitioner, Dr Jim Yu, dated 31 January 2012, and a receipt document related to your involvement with the Buddhist Compassion Relief Tzu Chi Foundation. He called your wife, Jing He, and friends Cheng Wang and Ying Bo Dai, to give evidence on your behalf.
20 The circumstances of offending are comprehensively described in the tendered Crown Summary, which is Exhibit A. My own summary may therefore be shorter. On 22 November 2011, an Express Mail Service consignment arrived from China at Tullamarine Airport. Four stainless steel frames were found to contain 4,397.7 grams of pink and yellow granules.
21 MS BIRD: Your Honour, apologies, Your Honour. We've just figured out the problem here with the interpretation. The interpreter we have is not a simultaneous interpreter, so what is required is you'll possibly have to stop after every sentence or two so that she can interpret that to the accused.
22 HIS HONOUR: How far back do I need to go?
23 MR CRISP: Your Honour, I don't want to over-complicate this but at the moment, my client fully understands what Your Honour is saying. There is no difficulty and no need for the interpreter to interpret at the moment. Everything is satisfactory and I would urge Your Honour to continue in the way that you have, if Your Honour is happy to do that.
24 HIS HONOUR: This man wants to know what his sentence is. I sometimes tell accused before I give my reasons. Given these delays, I will now tell the accused man what my sentence is; but I would ask him to listen courteously to the reasons for that sentence which I will give after that indication.
25 MR CRISP: Thank you, Your Honour.
26 HIS HONOUR: I am going to sentence him to a term of imprisonment of 20 months, with a minimum term of ten months. I am going to give my reasons slowly and it seems to me that you are correct, Mr Crisp. In this case I do not think there is any need for interpretation unless - and your client can indicate through you, he does not understand something.
27 MR CRISP: I would like to make it clear to Your Honour that I am completely satisfied with the procedure and there are no difficulties.
28 HIS HONOUR: I do not think we need interpretation but for a circumstance that may arise if he does not understand something and he can indicate that through you. I am mindful of the fact, and you are as well, I should think, that this person has a working understanding of English. He has lived in this country for ten years.
29 I will take it up from where I stopped, bearing in mind that you have indicated to me that he has understood so far.
30 On 22 November 2011, an Express Mail Service consignment arrived from China at Tullamarine Airport. Four stainless steel frames were found to contain 4,397.7 grams of pink and yellow granules. They were the medication Contact NT and contained 1,407.26 grams of pure pseudoephedrine. That is a precursor or constituent to the manufacture of methylamphetamine. An expected yield would be 1,107 grams of methylamphetamine hydrochloride.
31 A managed delivery of the parcel to the falsely named consignee was arranged. On 6 December, you were arrested at a Clayton East address taking possession of a package. Other evidence, including possession of a mobile phone and relevant email and/or text messages also implicated you. Your role, to some extent, went beyond mere acceptance of delivery. For example, you assisted in locating the consignment. There had been a failed delivery on 23 November. There is no evidence of your expected payment.
32 You are a 27 year old man of Chinese background, who has no prior convictions. I was told that there are no subsequent or pending matters. You came to Australia in 2002 to study. You completed VCE here at 20 years. You came here by yourself and had to learn English.
33 You worked part time and since school have studied further in commercial cooking and business management. You have been employed in Asian restaurants and in recent years as a salesman at two companies dealing in kitchen and bathroom products. You remain employed. Your parents live in China, they separated when you were seven and you are an only child.
34 Mr Crisp detailed financial problems which seem to have developed during 2010 and 2011. There was a time out of work and you owed parking fines of between $10,000 and $20,000. You have paid those off. You married in July 2007. It was a good relationship until your wife's decision to terminate her pregnancy in October 2011. She did not tell you and that led to your separation soon after. You remain supportive of each other and work at reconciliation. Both of you have applied for permanent residence. That decision has not been made and the impact of this offending on it is not known. The evidence of your wife and friends and Mr Healey's report persuade me that you were likely suffering some symptoms of depression in late 2011. This was the context for your decision to agree to act as the person receiving these drugs. I accept that you were vulnerable and that the offending is out of character. As discussed during the plea hearing, these are common features in those who are persuaded to assist the drug trade in the way you did.
35 This was serious offending. You attempted to assist in a significant and necessary way to enable movement and distribution within this country of a large quantity of drugs. Drugs such as methylamphetamine are seen to be a damaging community problem. In circumstances such as these, the sentencing considerations of deterrence, particularly general deterrence, your moral culpability and condemnation of what you did are important. General deterrence is a primary consideration. The proper and proportionate punishment must be a sentence of immediately served imprisonment.
36 A number of mitigating matters have been raised and are relevant, they include the following.
1) Your plea of guilty and co-operation as earlier described. Mr Crisp also told me of an attempt by you to identify the person who approached you to receive the consignment. You passed on some information to the informant which was not seen to be particularly useful. The mitigation of this is limited, compared, for example, with those who undertake to give evidence against identified co-offenders. I do see these attempts to be consistent with an attitude of co-operation and remorse.
2) You are otherwise a person of good character and have good prospects for rehabilitation.
3) I also take into account your personal circumstances leading to and at the time of offending. The primary importance of general deterrence in cases of this type in which the role you took is often performed by vulnerable and otherwise law-abiding people, means that such personal matters must be considered in that light. However, you are entitled to a properly weighted consideration of your circumstances at the time and the reasons for your involvement in the crime.
37 As I have said, you have applied, now some years ago, for permanent residence in Australia. The fate of that is not known and I am not able to take into account the possible effect of this sentence upon the success of your application, nor upon the possibility of deportation. They are matters of speculation. I do accept as relevant that such matters play a part in your personal situation, including anxiety about incarceration and your future. It will add to the hardship of imprisonment.
38 I have been assisted by the supply by the prosecution of a number of sentences in similar cases. I also recognise the need to properly consider the individual factors in your case.
39 I sentence you as follows. On one count of attempting to possess a drug of dependence, you are sentenced to 20 months' imprisonment. I set a minimum term before eligibility for parole of ten months.
40 Under s.6AAA of the Sentencing Act, I indicate that if you had not pleaded guilty to this matter, I would have imposed a sentence of two and a half years' imprisonment with a minimum term of 18 months.
41 Are there other matters that I need to deal with, such as forensic samples or the like?
42 MS BIRD: No, Your Honour, and the forfeiture is automatic under the Customs Act.
43 HIS HONOUR: So I do not need to make reference to that.
44 MS BIRD: No, Your Honour.
45 HIS HONOUR: Is there anything else I need to do or say?
46 MS BIRD: No, Your Honour.
47 HIS HONOUR: Thank you for your assistance today. Thank you for your assistance, Mr Crisp. I will now adjourn that court in Melbourne.
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