Director of Public Prosecutions v Yu (Sentence)

[2024] VCC 386

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00009

DIRECTOR OF PUBLIC PROSECUTIONS

v

WEIWEI YU

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2024
DATE OF SENTENCE:	27 March 2024
CASE MAY BE CITED AS:	DPP v Yu (Sentence)
MEDIUM NEUTRAL CITATION:	[2024] VCC 386

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – sentencing                

Catchwords:              Guilty plea – trafficking in a commercial quantity of methylamphetamine – quantity was 8.19 times the pure commercial quantity and 1.99 times the mixed commercial quantity – single day trafficking – role of intermediary or agent – no prior criminal history – Chinese national – risk of deportation and isolation add to burden of imprisonment – good prospects of rehabilitation – general deterrence and denunciation

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Migration Act 1958 (Cth); Sentencing Act 1991

Cases Cited:Guden v. R. 28 VR 288; Barbaro v. The Queen [2021] VSCA 277; DPP v. Lam [2020] VCC 160

Sentence:                  Four years, six months’ imprisonment with a non-parole period of three years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C. Fairfield	Office of Public Prosecutions
Victoria
For the Accused	Mr M. Reardon	Stary Norton Halphen

HER HONOUR:

1Weiwei Yu, following a sentence indication hearing before me[1], you have pleaded guilty to the following offences:

(a) Trafficking in not less than a commercial quantity of a drug of dependence, namely methylamphetamine contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('the Act'), the maximum penalty for which is 25 years’ imprisonment (Charge 1);

(b) Possession of a drug of dependence, namely, methylamphetamine, contrary to s 73(1) of the Act, the relevant maximum penalty for which is one year’s imprisonment (Charge 2).

[1]Sentence Indication Hearing held on 27 February 2024

2You have also pleaded guilty to two related summary offences:

(a) Dealing with property suspected of being the proceeds of crime on 1 March 2022, being cash in the sum of $5,787.15 contrary to s 195 of the Crimes Act 1958 (summary charge 3). The maximum penalty for this offence is two years’ imprisonment; and

(b) Dealing with property suspected of being the proceeds of crime on 25 August 2022, being cash in the sum of $10,360 contrary to s 195 of the Crimes Act 1958 (summary charge 11).  The maximum penalty for this offence is two years’ imprisonment.

3You were born in China in January 1987, and were aged 35 and living in Australia on a bridging visa at the time of this offending.  You have no prior criminal history.

Circumstances of offending

4The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 25 February 2024, which is the agreed basis upon which you are to be sentenced.

5In January 2022, the police commenced an investigation into the importation and trafficking of methylamphetamine in north-west Victoria. As part of this investigation, the police commenced surveillance of a Mr Khar Choon Yeong.

6At 11.44 pm on Monday 28 February 2022, the police observed Mr Yeong drive to an apartment complex in Whitehorse Road, Box Hill in a blue Mercedes sedan that was registered in the name of his girlfriend.  About half an hour later, at 12.53 am on 1 March 2022, Mr Yeong was observed leaving the apartment building with you.  Residential tenancy records listed you as an occupant of one of the units in the Box Hill apartment complex.

7The two of you entered the Mercedes and Mr Yeong drove in the direction of the city.  The police intercepted the Mercedes at 1 am in East Melbourne.  You were seated in the front passenger seat.  The police located a backpack in the front passenger footwell in front of you, in which they located two plastic film wrapped bags containing off-white crystals and cash in the sum of $4,804.

8You were arrested and taken to the Melbourne East Police Station.  At the station, the police seized a further $983.15 and two mobile phones that were found in your possession.  The total cash found in your possession on 1 March 2022 is property suspected of being the proceeds of crime which forms the basis of summary charge 3.

9The police viewed an exchange of messages found on one of your mobile phones in which you had a conversation with an unknown person regarding the purchase of 500 grams of methylamphetamine.  Photographs connected to those messages depict a large bag of off-white crystals similar to that seized by police from the backpack found in the Mercedes, although the prosecution accepts that they are not the same drugs as those seized.

10Subsequent analysis of the crystals seized by police revealed the substance was 499.2 grams of methylamphetamine with a purity of 82 per cent.  The methylamphetamine found in your possession on 1 March 2022 is the subject of Charge 1 – trafficking in not less than a commercial quantity of a drug of dependence.

11You were released by police without charge on 1 March 2022, pending further enquiries after police were unable to reach a solicitor to provide you with legal advice.  Quite properly, the police did not interview you until you were afforded an opportunity to speak with a lawyer.  Police were then subsequently unable to locate you at the Box Hill address.

12It was not until 24 August 2022 that the police became aware of your whereabouts, and executed a search warrant at an apartment in Swanston Street, Carlton where you were arrested.  At that location, police located approximately 5.4 grams of methylamphetamine in Ziploc bags which forms the basis of Charge 2 – possession of a drug of dependence.  Two separate amounts of cash, in the sums of $9,700 and $660 were located; with the total amount of $10,360 being the subject of related summary charge 11.

13During your record of interview, you answered no comment to questions asked of you by investigators, in accordance with your rights.  You told police you were working on construction sites, and provided the number of your current mobile phone.  You told police you had 'no idea' about the methylamphetamine and cash that had been seized on 1 March 2022.  In relation to the cash located at the Carlton apartment on 25 August 2022, you told police that you had 'no idea' and that you 'have no money' with you.

14Subsequent forensic analysis identified both you and Mr Yeong as contributors to DNA located on the wrapping used to pack the methylamphetamine found in the backpack.

Nature and gravity of offending

15The gravity of the offence of trafficking in a commercial quantity of a drug of dependence is reflected in the maximum penalty of 25 years’ imprisonment.

16The commercial quantity of methylamphetamine is defined in two ways:

(a)   where the drug is in its pure form, an amount of 50 grams;

(b)   where the drug is present in a mixture, the commercial quantity is 250 grams of the mixture.

17The minimum threshold that constitutes a commercial quantity is relevant not only the category of trafficking offence committed, but is also highly relevant in assessing the gravity of the offending in a particular case.  Here, the quantity of methylamphetamine located in your possession on 1 March 2022 was 8.19 times the threshold where the drug is in its pure form, and 1.99 times the threshold for a 'mixed' commercial quantity. This was a significant quantity of methylamphetamine, well in excess of the threshold for a commercial quantity, that was in your possession for a trafficking purpose.

18The quantity of drugs marks the objective gravity of your offending, however it is not determinative.  While the quantity involved must be given due weight in the sentencing calculus, other factors remain relevant, including your role in the offending, the duration of your offending and the motivation for your involvement.

19

In this case, you possessed a commercial quantity of methylamphetamine for a trafficking purpose on one day only.  It is not disputed that you did so in the role of an intermediary or agent for others.  That this was your role is apparent from text messages found on your mobile phone that were subsequently translated.  These reveal that you had a pre-existing relationship with a person you identify as a 'manufacturer' and that you are agreeing to sell the drugs to pay that person. 

Mr Reardon, who appeared on your behalf, states that you were doing so under an arrangement that you would be paid between $2,000 and $3,000 for your role in the transaction.

20In an exchange of text messages between you and a person the prosecution identify as Mr Yeong, you are asked if you can obtain '500 for 75,000' and whether 'the price is flexible'. You respond, 'the price for 250, he offered me 40,000; for 500, when I get it is 80,000; 150,000 is a set' and then, 'your call, how much did you offer the customer? We can share half and half'.  You then add, 'I want to sell some tonight to make some money and send it to the manufacturer otherwise if the goods were taken away tomorrow, we won't be able to make a profit afterwards, think of a way to retain the goods first and make profit later'.

21It is abundantly clear from these messages that you were actively involved in the negotiations in performing your role as an intermediary and were motivated to undertake that role by the lure of profits.

22The demand which fuels the illicit drug market drives the very high prices and profits that may be made from trafficking in illicit drugs.  Given the societal harm caused by illegal drugs such as methylamphetamine, general deterrence is of paramount importance in sentencing you for this offence.  Others must be deterred by the sentence I impose in order to achieve the deterrent effect that Parliament intended by fixing a maximum penalty of 25 years’ imprisonment for commercial quantity trafficking.

23Here the quantity you possessed for a trafficking purpose on 1 March 2022 was in multiples of the threshold amount for a commercial quantity.  Your criminality and culpability is reflected not only by the quantity trafficked, but also the role you played as an intermediary.  Without people being prepared to play the role of an intermediary or agent, others higher up the hierarchy would be unable to achieve the enormous profits to be made from the trade in illicit drugs.

24In contrast, I accept that the small amount of methylamphetamine found in your possession on 25 August 2022 was for personal use only.  This was fairly conceded by the prosecution, and accordingly the lower maximum penalty of one year’s imprisonment applies to that offence.

Personal circumstances

25You were born and raised in the Fujian province in China.  You were cared for by your grandparents until the age of seven, when you returned to live with your parents.  You have two siblings; a sister and a brother.

26You father owned several businesses throughout your childhood, including a seafood business in Taiwan and a telecommunications business in Mongolia.

27Your father retired after failed investments, and at the beginning of this year, underwent triple bypass heart surgery.  You are aware that your father is in debt arising from his medical expenses, with no means of repaying the debt.

28You also have two children, aged 10 and 12 years of age, who are cared for by your mother.  You have no contact with your former partner, who is the mother of your two children.  Your two children are solely reliant upon the care your mother is able to provide to them.

29Your sister, now in her 30s, is married to a factory owner.  Your brother, now 31, runs a packaging factory where he sleeps.  Both your sister and brother live two hours away from your parents’ home, and are unable to assist your mother in the care of either your father or your two children.

30You were educated to the equivalent of Year 9 in China.  You left secondary school to work for your father in Mongolia, and remained there for approximately two to three years.  You then worked as an electrician in the Fujian province for a year, while you saved money to purchase a clothing store in Guangzhou.  You ran this store for two to three years, but it was not successful.  You then returned to work for your father in Mongolia for a further two to three years.  Following this, you worked in your brother-in-law’s factory until moving to Australia to study in August 2018.

31You report that you began a business course at Clinton Institute in Melbourne upon your arrival in Australia, however you ceased studies after one month due to your poor English.

32Your student visa expired after one year following your withdrawal from the course.  You then applied for a protection visa, and were placed on a bridging visa in the interim.  You do not have a precise recollection of the basis of your application for a protection visa, but you report safety concerns regarding your religious beliefs and arising from the debts owed to creditors who funded your travel to Australia.  You have since paid off these debts.

33After ceasing study, you began work as a Gyprock plasterer, first in Sydney where you remained until mid–2021, and then in Melbourne.

34In Sydney, you worked up to 12 hour days between August 2018 and December 2019 and then, following a pay rise, were able to work 10 hour days.  Over this period you would remit between $3,000 to $4,000 a month to your parents in China.

35You continued working in as a plasterer in Melbourne, although in the two to three months prior to your arrest, you worked less frequently due to a lack of work opportunities in the construction industry.

36

You are now 37 years old.  You have no history of drug use while living in China.  However, you were introduced to methylamphetamine by a co-worker while you lived in Sydney, and by the time of your arrest you were using approximately

0.5 grams of ice daily.

37You have no prior criminal history and are to be sentenced as a person who is otherwise of good character, the relevance of which I return to later in my reasons.

Matters in mitigation

38Having discussed the objective gravity of your offending, I now turn to the various matters raised on your behalf in mitigation of your sentence.

Guilty plea

39First and foremost, you pleaded guilty to these offences and in doing so, you facilitated the course of justice.  Although yours was not an early guilty plea, by pleading guilty prior to trial, you saved the court and the community the time and resources associated with a trial, including those associated with a foreshadowed legal argument about the lawfulness of the vehicle search.  You are entitled to, and will receive, a significant sentencing discount to reflect the utility of your guilty plea.

Risk of deportation and the burden of imprisonment

40Under the Migration Act 1958 (Cth), a non-citizen is liable to deportation where they receive a term of imprisonment of 12 months, or more.  In those circumstances, visa cancellation is mandatory, although a non-citizen may apply to have the revocation reviewed by the Minister.

41Recalling that you are a non-citizen on a bridging visa in Australia, the prospect of deportation following sentence is a relevant sentencing factor.  The courts recognise the risk of deportation may be relevant in two ways: first, that the expectation of being deported following release may mean the burden of imprisonment will be greater for that offender than for someone who faces no such risk; and secondly, in an appropriate case, it will be proper to take into account the fact that the sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.[2]

[2]Guden v. R. (2010) 28 VR 288

42On your behalf only the first limb, being the added burden of your imprisonment, is relied upon in mitigation of sentence.  On your behalf, Mr Reardon argues that the risk of deportation is of particular importance due to your Chinese nationality, in light of 'the severity in which it views drug offences, including the availability of the death penalty' and the prospect that a bar on double jeopardy may not apply to offences committed overseas. 

43Mr Reardon relied upon extracts of a DFAT Country Information Report regarding China dated 22 December 2021 in support of this argument.  However, as canvassed in the course of oral argument during the plea hearing, the references in the Report to the treatment of drug offenders clearly relates to offences committed in China.  As to the risk of double punishment, the Report is no more than equivocal, stating that 'whether or not this practice occurs is unclear'.

44In the circumstances, I am unable to speculate on what, if any action, may be taken if you were deported to China following a conviction for serious drug offences in Australia.  I do not accept Mr Reardon’s submission that I can infer from the material I have been provided, that you are at risk of the death penalty if you return to China, or alternatively, that you face the prospect of indefinite detention.  Equally, I am unable to speculate upon any action that may be taken by the executive upon the completion of your sentence in relation to your visa, other than to note that the prospect of deportation is a realistic one.  I accept that your understandable concern about the risk of deportation, and the uncertainty that entails, makes your time in custody more onerous than it would for someone who is not in the same position.

45Mr Reardon concedes that there is no evidence that you had planned to permanently reside in Australia, or had taken any steps to have any of your family, including your two children, apply for permission to reside in Australia.  There is no basis for me to conclude that you may have lost the opportunity of residing permanently in this country, noting that all of your family still live in China, including your parents, siblings and two children.

46There are, however, other matters that have added to the burden of your imprisonment.  As a Mandarin speaker, with limited English, you are unable to communicate with many people in custody, and rely on the assistance of other prisoners to translate for you.  This makes your experience of custody particularly isolating, most particularly given the fact you have not communicated with your family since August last year.

47Moreover, your family’s situation in China has deteriorated since your remand, with your father recovering from serious cardiac surgery, leaving your mother to care for him and your two children without any financial contribution from you, or assistance from other family members.  Mr Reardon submits that this is a cause of significant anguish for you, and I accept that your concern for your family’s predicament is a further matter that makes your time in custody more onerous.

Prospects of rehabilitation

48I turn now to my assessment of your prospects of rehabilitation.

49Since being in custody, despite your language difficulties, you have endeavoured to complete a number of courses, including TAFE certificates in Kitchen Operations, Horticulture, and basic English.  This is to your credit.

50As stated, you have no prior criminal history and are otherwise a person of good character, however I accept these matters are given less weight in mitigation the more serious the offending.  However, the fact that at the age of 37 you have no prior criminal history does have bearing on my assessment of your future prospects.

51Your adult life has been characterised by hard work, first in China, including many years working for your father in Mongolia, and then in Australia, working long hours as a Gyprock plasterer.  For these reasons, notwithstanding the seriousness of your offending, I assess you have good prospects of rehabilitation. The need for the sentence to specifically deter you from future offending is correspondingly reduced.

Other sentencing considerations

52The offence of trafficking in not less than a commercial quantity of a drug of dependence is a Category 2 offence under the Sentencing Act 1991 and, as such, the Court must impose a sentence of imprisonment unless an exception applies.[3]  In this case your counsel does not dispute that the only appropriate sentencing disposition is a term of imprisonment with a non-parole period fixed.

[3]Section 5(2H) of the Sentencing Act 1991

53The sentence I impose must justly punish you for this offending and mark the Court’s denunciation of offending that involves trafficking in a commercial quantity of methylamphetamine.  As stated, general deterrence is a sentencing consideration of prominence in cases such as these.  Others must be deterred from engaging in drug trafficking activity in the knowledge that if they do so, irrespective of their role, they face the prospect of a lengthy sentence of imprisonment.

54Finally, I also have regard to current sentencing practices, and in particular, I have considered the two cases to which I was referred by the prosecution, as a guide to sentences imposed for comparable offending.[4]   Current sentencing practices are only one of many sentencing considerations that I must take into account.  As always, every case ultimately turns on its own facts and circumstances, and current sentencing practices are no more than a guide.

[4]Barbaro v. The Queen [2021] VSCA 277; DPP v. Lam [2020] VCC 160

Sentence

55Balancing the matters to which I have referred, whilst having regard to the maximum penalties for each offence, I sentence you as follows:

56On Charge 1 – trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine), you are convicted and sentenced to four years, six months’ imprisonment.

57On Charge 2 – possession of a drug of dependence (methylamphetamine), you are convicted and fined $500.

58On related summary charge 3 – a rolled-up charge of dealing with property suspected of being the proceeds of crime ($5,787.15), you are convicted and sentenced to three months’ imprisonment.

59On related summary charge 11 – a rolled-up charge of dealing with property suspected of being the proceeds of crime ($10,360), you are convicted and sentenced to four months’ imprisonment.

60The sentences I have imposed on charge 1 and summary charges 3 and 11 are to be served concurrently.

61This gives a total effective sentence of four years, six months’ imprisonment.  I fix a non-parole period of three years.  This is the period of imprisonment you must serve before you are eligible for parole.

62

Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served

580 days of pre-sentence detention to be reckoned as served under the sentence I have imposed.

63I make the forfeiture and disposal orders sought by the prosecution, noting they are not opposed.

64Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of six years, six months’ imprisonment with a non-parole period of four years, ten months.

– – –