Director of Public Prosecutions v Yee
[2020] VCC 302
•20 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01838
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WEI YEE |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 20 March 2020 |
| CASE MAY BE CITED AS: | DPP v Yee |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 302 |
REASONS FOR SENTENCE
---Catchwords:
sentence, guilty plea, trafficking of cannabis cocaine and MDMA, knowingly deal with proceeds of crime- large amount of cash, general deterrence and denunciation, no prior convictions, good prospects of rehabilitation
Legislation Cited: s.6AAA of the Sentencing Act
Cases Cited: Waterman v The Queen [2016] VSCA 32
Sentence:4 years imprisonment with non-parole period of 2 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
| For the Offender | Mr G. Balot |
HIS HONOUR:
1Mr Wei Yee, you have pleaded guilty to three charges of trafficking in a drug of dependence and one charge of knowingly deal with the proceeds of crime. The maximum penalty for the trafficking charges, and for the proceeds of crime offence, is 15 years' imprisonment.
2You were born on 30 July 1991. You are now 28 years of age. At the time of your arrest for these matters you were 27. You were living at 309 Blackburn Road, Burwood East, with your parents, your wife, your brother and your brother's girlfriend.
3The facts of this matter are set out in the prosecution plea opening, which was read in open court by the prosecutor and tendered as Exhibit 1.
Circumstances of offences
4On 7 June 2019 Mr Dimitri Georgakis contacted you through the phone application Wickr. It was agreed between the two of you that you would sell
Mr Georgakis 5 grams of cocaine at around 6 pm.5At approximately 6 pm Mr Georgakis drove to your address. He sent a text message telling you he was outside. A few minutes later you walked from your house to his car and got in the front passenger seat. Mr Georgakis gave you $2,380 in cash and you gave him cocaine in return. Police then approached the car and removed both you and Mr Georgakis from the car. You had your hands in your pockets. They told you to remove your hands and you refused. Police then reached into your pockets and took out the $2,380 cash that you had received from Mr Georgakis.
6You were then cautioned and arrested.
7When asked about the money you initially told the police that your mate in the car owed you money from a bet. You then told police that Mr Georgakis was a close mate and you had sold him cocaine. You produced a black Samsung mobile phone and a white Optus mobile phone. You told police that the black Samsung phone was yours and you provided the number to the police. In relation to the white Optus phone you stated to police that it was 'dodgy' and that it was not yours; and that it had been given to you by your supplier and you used it to contact your supplier and customers for buying and selling drugs. You provided police with the PIN codes for both mobile phones as well as your passwords for the Wickr and Signal applications.
8Shortly after your arrest police executed a search warrant at 309 Blackburn Road. When police searched the house, you were present along with
Mr Georgakis, your wife, your brother and your brother's girlfriend. During the execution of the warrant you told police there was 'choof' in a white bag in your parents’ bathroom and coke and MDMA in another bathroom. Later you said “Ten pounds of bud in my mum's bathroom, 30 grams of cocaine in my bathroom – the main bathroom – as well as about 30 grand cash in my bedroom, roughly”. You then showed police the location of the cocaine and MDMA in the main bathroom and the cannabis in your parents’ bathroom.9Police subsequently found three suitcases under the house. You told police that the three suitcases contained between $300,000 and $400,000 and that the keys to two of the suitcases belonged to you and that you had access to them. You said you did not have a key for the third suitcase. The suitcase was eventually opened by a key on the keyring you provided to police.
10During the search police located the following items:
· $529,890 in cash- in Bedroom 1; and also, under the house in the suitcases. Most of the money in the suitcases was in vacuum sealed plastic bags; there are photos in the depositions that show it packaged up in that way.
· Cannabis-72.47 grams in Bedroom 1, the study/ TV room and the bathroom.
· Cocaine - 107.8 grams in the main bathroom.
· MDMA - 28.5 grams in the main bathroom
· $1,005 cash in your wallet, which was in your vehicle.
Interview and further investigation
11You were interviewed at the Croydon police station on 8 June 2019. You made no comment to a number of questions that were put to you by the police, but you also told the police the following:
· That your parents, your wife, your brother and your brother's girlfriend all lived at the house;
· That there was about 5 grams of cocaine in Mr Georgakis' car;
· That the money in your pocket was given to you by Mr Georgakis – partly for cocaine and partly for money owed from a bet;
· That you would sell cocaine for between $300 and $400 a gram, depending on the purity;
· That you were holding onto the MDMA as a favour for a friend, who needed help in moving it;
· That you earned $70,000 per annum as an engineer but you also had stock in a gym;
· That $45,850 cash found in your bedroom did not belong to you;
· That you were not sure whether the money found in your wallet was from selling cannabis or cocaine;
· That the other residents of the house had no knowledge of your drug trafficking.
12Police analysed the contents of both phones that they had seized. A ledger was found on the black Samsung phone indicating money owed to you and the drugs you owed to your clients.
Procedural history
13You were charged on 7 June 2019 and remanded in custody. You were released on bail on 8 July 2019 on stringent conditions.
14On 12 March this year I remanded you in custody pending sentence in this matter. The pre-sentence detention in this case is therefore 40 days.
15You pleaded guilty at the second committal mention on 11 September 2019 and your plea was therefore entered at a very early opportunity. You must be given substantial credit for the utilitarian value of your plea and I also accept your plea is indicative of genuine remorse for your offending.
Personal circumstances
16You were born in Melbourne and you are the second of three children. Your father came to Australia from Vietnam as a refugee in 1979. Your mother came to Australia from Malaysia in 1981 as a student. Your parents worked very hard to support you and your siblings. Your family lived in Burwood and you went to Emmaus Secondary College in Forest Hill. You did well at school and then completed an engineering degree at RMIT. During your student years you worked at the Forest Hill Bowling Alley.
17You met your wife in around 2010/2011, and she moved into your family's home in Burwood. You later married in 2018. You graduated from engineering in 2013 and you obtained an internship at a company called Simpson Constructions. In 2014 you were looking for employment. You started smoking cannabis. Your wife was studying at that time. The following year you got a job with Buratt Engineering. Your drug use continued in this period and then you also started using cocaine. You remained living in Burwood with your family and apparently, in 2018, you invested in a gym in Kilsyth. After you got married you and your wife continued living with your family in Burwood.
18You have no prior convictions, which is a significant matter in your favour. You told Mr Newton, the psychologist who assessed you and provided a report dated 24 February 2020, that your drug use commenced after university because it was common in your social group and your perception that drugs were dangerous shifted when you saw your friends using drugs without adverse effects on their lives. You started using cannabis and later began to use MDMA and then cocaine. Your drug use continued unabated until your arrest in 2019.
19It was submitted on your behalf that the offending in this case arose out of your drug use and your immersion in the drug using subculture. It is acknowledged in the report of Mr Newton that your motivations included financing your own drug use, the financial return you were able to enjoy and the kudos you obtained from your peers. Mr Newton assessed you as suffering from moderate substance abuse disorder in relation to cocaine, MDMA and cannabis.
20After your arrest in June 2019 you were eventually bailed in July 2019 with a condition that you not contact your wife, who has also been charged in relation to these matters. You have not had any contact with her since your arrest.
Gravity of the offending
21Mr Yee, your offending was very serious criminal conduct. In relation to the charges of trafficking, each charge covers a period of five months, from January to June 2019. You trafficked in three different drugs. You had a ledger relating to your trafficking on the phone which you say had been given to you by your supplier.
22The precise details of your trafficking are not fleshed out in the Crown opening other than that between the charge dates you were engaged in trafficking in each of cannabis, MDMA and cocaine and you had amounts of each drug in your possession at the house when police searched. The amounts of cocaine and MDMA found were both well in excess of the trafficable quantities of those drugs – particularly in relation to the cocaine. I also note your admission that you sold cocaine for between $300 and $400 a gram.
23The very large amount of cash found in suitcases under the house and in your bedroom is the subject of Charge 4, but the presence of such a large amount of cash cannot easily be separated from an assessment of your trafficking. Indeed, you have associated some of the money to your trafficking by offering the explanation that the money kept in the house was to be paid to your supplier.
24Sentencing for drug trafficking is quantum based and I make it clear that I do not punish other than for trafficking simpliciter. Indeed, the prosecution has submitted that your trafficking charges are low to mid-range examples of trafficking and I accept this. However, having regard to all the circumstances of the case, including the money located, it is my view that you were running a very profitable business in trafficking drugs over the charged period. It has also been suggested on your behalf that your trafficking was confined to a very small group of close friends. In my view this description understates the professionalism of your trafficking.
25As I just observed, the money found by the police is the subject of Charge 4; knowingly deal with the proceeds of crime, and I must be careful to avoid double punishment. There is some overlap between the trafficking charges and the proceeds of crime charge which necessitates moderating the orders for cumulation between the charges.
26Section 194(2) of the Crimes Act creates the offence of knowingly dealing with the proceeds of crime. The maximum penalty of 15 years' imprisonment reflects the seriousness of this offence, which requires proof of knowledge as to the origin of the money.
27The definition of 'dealing' includes possession of the proceeds of crime. You acknowledge, by your plea of guilty, possession of $532,270 in cash, which you knew was derived from criminal activity. The serious nature of the offence is established by the very large sum of money involved. In this case, whilst
Mr Dunn did not concede that all of the money was from trafficking drugs he said there can be ‘no real explanation proffered’ as to how the money was acquired. On the evidence before me the only reasonable explanation is that the money was derived from drug trafficking activity, which is the position put forward by the prosecution. This is clearly a very serious example of a proceeds of crime offence.28I do not dismiss that some of the money was to be used to pay your supplier, and nor do I conclude that there is a complete overlap between the profits acquired from the drug trafficking represented by Charges 1 to 3 and the money which is the subject of Charge 4.
29The inescapable conclusion in this case is that your conduct was substantially driven by greed, and perhaps a false glamour conferred upon you by your capacity to supply your acquaintances and customers with the drugs they wanted. Although, I do accept that the genesis of your offending was that you fell into a world where drug use was normalised, and this influenced the decisions you made.
30You have no prior convictions and before you entered the world of recreational drugs, no involvement in any criminal milieu, but you are an intelligent man who offended in an organised way over an extended period for profit. In my view, you must have understood the gravity of your conduct and I assess your moral culpability for this offending as high. Considerations of general deterrence and denunciation must be the prominent sentencing objectives in this case.
Prospects of rehabilitation
31Since your arrest in 2019 you have not been charged with any further offending and you have complied with strict bail conditions after your initial period remanded in custody. You have regularly consulted with a psychologist in order to obtain insight into your criminal conduct and to prevent a relapse. You have not used drugs. Negative drug screen results were provided. You have worked as a volunteer in a drug rehabilitation service and at the Sacred Heart Mission and at the Red Cross on Saturdays and Sundays. You have gained insight into the way drugs can ruin lives through this volunteer work. You have the full support of your sister, who returned from overseas after you were charged. You have been living with her on bail. You have the support of your family. Up until shortly before the plea hearing you were working full time.
32I have had regard to the character references tendered on your behalf, the evidence of your sister, the absence of prior convictions and all of the many positive things you have done since you were granted bail and I am satisfied that you have insight into your offending, you are genuinely remorseful, and your prospects of rehabilitation are extremely good.
33The sentence that I will impose will be the first time that you have been sentenced to a period of imprisonment. In my view, the sentence will weigh heavily upon you, and I have also taken this into account. You will be away from your family. Any chance of re-establishing a relationship with your wife – if there is any chance – will be severely compromised by the gaol sentence I impose. Additionally, you will serve your sentence well-aware of the damage you have done to your future employment prospects. I note in this context
Mr Newton's comments about the anxiety you have been experiencing concerned the prospect of a further period of imprisonment and the fears that you have for your relationship with your wife.
Submissions
34Mr Dunn submitted that I should impose a combination sentence of imprisonment and a community correction order. I ordered a community correction order assessment but indicated then that I thought such an order was unlikely, given the 12-month limit on the period of imprisonment remaining after the deduction of pre-sentence detention. I have reflected on this submission and I have considered the corrections assessment report. In the end, I have come to the view that this offending is simply too serious for a sentence of that type and that a proper application of sentencing principles dictates that a period of imprisonment with a head sentence and a non-parole period is the only appropriate sentence. However, given some of the strong mitigating factors in your favour, and my view that your prospects of rehabilitation are very good, a substantial gap between the head sentence and the non-parole period is justified.
Totality
35In formulating the sentence in this case, I have had regard to the totality principle, which requires me to ensure that your overall sentence remains just and appropriate for the whole of your offending. I have moderated the orders for cumulation to give effect to the principle of totality and to avoid double punishment, having regard to the overlap between the trafficking charges and the proceeds of crime offence.
Current sentencing practices
36I have had regard to current sentencing practices, including the case of Waterman[1] that I was provided by the prosecutor. I have had regard to the sentencing statistics in relation to trafficking, and in relation to the proceeds of crime offence, and I have considered the summaries of this court and the Court of Appeal in relation to trafficking cases and proceeds of crime offences. Current sentencing practices are a guide but not a controlling factor in the imposition of my sentence.
[1] Waterman v The Queen [2016] VSCA 32
Sentencing principles
37The purposes for which a court may impose sentence are just punishment, deterrence – both specific and general – rehabilitation and denunciation of your actions and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I must also seek to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society. In this case, as I have stated, general deterrence and denunciation are the primary sentencing objectives, but I have not lost sight of rehabilitation and I will impose a sentence that involves a significant gap between the head sentence and the non-parole period.
Sentence
38Mr Yee, I have balanced the serious aspects of your offending against the mitigating matters that I have accepted.
39On Charge 1 of trafficking, you are sentenced to 18 months' imprisonment.
40On Charge 2 of trafficking, you are sentenced to 18 months' imprisonment.
41On Charge 3 of trafficking, you are sentenced to 18 months' imprisonment.
42On Charge 4 of dealing with proceeds of crime, you are sentenced to three years' imprisonment.
43I order that four months of the sentence on Charges 1, 2 and 3 be made cumulative on each other, and on the sentence for Charge 4, which is the base sentence.
44That makes a total effective sentence of four years. I fix a minimum non-parole period of two years and two months.
45Pursuant to s.18(4) of the Sentencing Act I declare that you have served 40 days of the sentence I have passed upon you and I direct that this be entered into the records of the court.
46Pursuant to s.6AAA of the Sentencing Act I indicate that the total effective sentence that would have been imposed but for the plea of guilty would have been six years' imprisonment with a non-parole period of four years
47I make the disposal order sought by the prosecution in relation to Exhibits 2, 5 10, 17, 18, 21, 22, 23, 24 and 25, and I make a forfeiture order for $532,270 in cash. Were they the only orders required, Mr Sonnet?
48MR SONNET: Yes, Your Honour.
49HIS HONOUR: So that's a sentence of four years with a minimum non-parole period of two years and two months, Mr Balot.
50MR BALOT: As Your Honour pleases.
51HIS HONOUR: All right. No other matters?
52MR SONNET: No, Your Honour.
53HIS HONOUR: No? All right. Could you take Mr Yee into custody please?
54MR SONNET: Can I be excused for the day?
55HIS HONOUR: Yes. Thank you, Mr Sonnet.
56MR BALOT: Might I also be excused, Your Honour?
57HIS HONOUR: Yes. Thanks, Mr Balot.
58 MR BALOT: Thank you, Your Honour.