Director of Public Prosecutions v Yuen

[2014] VCC 1759

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00709

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON YUEN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2014
DATE OF SENTENCE:	22 October 2014
CASE MAY BE CITED AS:	DPP v YUEN
MEDIUM NEUTRAL CITATION:	[2014] VCC 1759

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:            Trafficking in a commercial quantity of methylamphetamine - trafficking in cannabis and cocaine

Legislation Cited:    Sentencing Act 1991

Cases Cited:

Sentence:4 years and 6 months' imprisonment, non-parole period of 2 years and 8 months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Office of Public Prosecutions
For the Offender	Ms A-M. Stephanides	Doogue O’Brien George

HIS HONOUR: 

1Jason Yuen, you have pleaded guilty to one charge of trafficking in a commercial quantity of methylamphetamine.  This offence carries a maximum penalty of 25 years' imprisonment. 

2You have also pleaded guilty to trafficking in cannabis and cocaine.  These offences each carry a maximum penalty of 15 years' imprisonment.

3You were born on 15 January 1988 and were aged 25 at the time of offending.  You are presently aged 26. 

4You have no criminal history. 

5The detailed circumstances of your offending are set out in the prosecution opening tendered on your plea, and may be briefly stated as follows.

6Between 29 October and 18 December 2013 you maintained a regular supply of amphetamine, together with some cocaine and cannabis, to next-level dealers, Gutsell and Yu.  You also offered for sale other amounts of those drugs, including a significant amount of cannabis.  You sourced your drugs from a man named Andrew Tran.  You also introduced another offender, Milton Mok, to Gutsell.  Mok was identified as Gutsell and Yu's supplier of cannabis and ketamine.  You also sold and offered for sale various amounts of methylamphetamine to two other persons on several occasions. 

7In total, the items and quantity trafficked by you has been calculated as follows: 

·   982.2 grams of methylamphetamine sold and 147 grams and other unknown amounts offered for sale;

·   9 kilograms of cannabis sold and approximately 58.74 kilograms offered for sale;

·   28 grams of cocaine sold and a further 28 grams offered for sale. 

8You and others had been the subject of surveillance and telephone intercepts, and you were eventually arrested on 18 December 2013.  Further investigation following the seizure of your mobile phone confirmed the trafficking relationships and that your supplier was a man named Tran. 

9Further investigation and analysis revealed that you paid Tran between $227,200 and $243,200 for the drugs of dependence.  The purity of the methylamphetamine has been assessed as high, the covert transactions being analysed at between 70 and 90 per cent purity with the high majority recording 80 per cent purity. 

10I now turn to your personal circumstances. 

11You have had the benefit of a close, supportive and loving family and attended private school until completing year 12.  Throughout your school years you assisted in your family business, a Chinese restaurant.  You were regarded as intelligent but not academic at school.  Upon leaving school you tried a variety of courses but did not complete them.  You worked full-time for a while in the family business but discovered that the game of poker interested you, and it became a passion.  You were very successful and were making a lot of money, playing approximately six hours per day and making $6,000-10,000 a week.  You played at Crown Casino and met other gamblers, some of whom introduced you to the high-roller lifestyle. 

12You began playing baccarat and enjoyed the heady world of the Teak and Mahogany Rooms, where stakes were high and the entertainment lavish.  You lost heavily and, at one time, lost over $100,000 in one week.  You became distressed and an associate introduced you to the use of methamphetamine.  You began to believe that this gave you an edge in your gambling.  In particular, you found it assisted you in maintaining energy whilst other players fatigued.  The next step, of trading in the drug, supplied your own use and also provided the means of making a substantial amount of quick money.  You had remained living with your parents throughout this period. 

13

The psychological report tendered from Dr Aaron Cunningham confirms your intelligence and the absence of any mental illness or personality disorder.  There was no evidence of long term drug dependence and no suggestion of either drug or gambling addiction as an explanation for your conduct. 

Dr Cunningham regarded you as motivated to improve your education and employment prospects whilst in prison.  You had adjusted to your time in prison and had insight into the wrongfulness of your behaviour. 

14A number of written references were submitted which attest to your previous good character and the shock the referees felt at your acts, which they expressed as being completely out of character.  Several have spoken to you since your incarceration and have mentioned the embarrassment you feel towards your family, your deep regret and your recognition of how the drugs you have trafficked may have impacted on the lives of others. 

15You have also written a personal letter of explanation and regret, expressing insight and remorse.  I regard your account as refreshing for its directness and apparent honesty, encouraging for its appreciation of the circumstances that led you down this path, the shame which you have experienced and the understanding it expresses as to the consequences of your acts on others. 

16Your expressions are consistent with the report of Dr Cunningham and the character references received.  You have not sought to excuse yourself with fanciful claims, and recognise the very hard work your parents have performed to provide the very privileged life that you have enjoyed and the opportunity you had to develop your own legitimate business. 

17In mitigation, I have taken into account the matters submitted by your counsel.  In particular, I accept:

·   your plea of guilty and the early stage at which it was entered;

·   your previous good character;

·   your genuine expressions of shame and remorse;

·   the time already spent by you in remand custody;

·   that the trafficking was for a relatively short period, approximately two months;

·   your age, whilst at 25 at the time of offending and 26 now, is moving away from the chronological youthful category, but remains a consideration in the context of likely immaturity.  I note your mother's reference to you having acted as a "naïve little adolescent". 

·   significantly, your very good prospects of rehabilitation which, in addition to the matters already referred to, are indicated by your previous good character, your insight into your offending, the realistic way in which you have accepted and adjusted to the difficulties of incarceration, your close family support, your future prospects of purposeful employment, your intelligence and the measures you have already taken to seek reformative programs. 

18Nevertheless, the offending is very serious.  The crime of trafficking in a commercial quantity of a drug of dependence is one of the most serious crimes that can be committed.  Its maximum penalty of 25 years' imprisonment is a reflection of how seriously the community, through Parliament, views such conduct.  In this case, the quantity of methylamphetamine that you trafficked is at the very high end of a commercial quantity, only just short of being categorised as a large commercial quantity that carries the maximum penalty of life imprisonment. 

19Many lives in our community are ruined by the pernicious effects of drugs of dependence, both directly by their ingestion and by the consequent crimes, often violent, committed by users in order to finance their addictions or simply because of the mind-altering effects of the drug.  The ingestion of methylamphetamine in particular appears to often lead to very violent behaviour.  The citizens of Victoria pay a heavy price for the acts of those who choose to enrich themselves by peddling these substances.  It is clear that the reason for your descent into these crimes was for some personal supply, not because of some long term compulsive addiction, but principally for your commercial gain to recoup the losses you had incurred in gambling.  It was about making a lot of quick money. 

20You are a young man of intelligence with a clear understanding of the serious illegal nature of what you embarked upon and its likely consequences if you were caught.  You took the risk. 

21Principles of general deterrence, that is, to make an example of your punishment as a deterrent to others who might be minded to similarly offend, punishment, denunciation and the protection of the public are of significant emphasis in balancing the sentencing discretion.  In the particular circumstances of your case, I regard the principle of specific deterrence, that is, to deter you from reoffending, can be moderated because of the matters in mitigation, in particular your prospects of rehabilitation.  Allied to that I also take the view that your decision to commit these crimes was not borne out of any general anti-social attitude or proclivity to crime, but was an extreme example of a young man's foolishness and gross, selfish immaturity. 

22I have also now had the benefit of reading the sentence of His Honour Judge Gucciardo on the offender Milton Mok.  There are a number of parallels in your respective circumstances.  Mok was known to you and was also a supplier to Gutsell and Yu of cannabis and ketamine.  Mok, like you, had no previous convictions, had a good family background, provided good character references, was 23 at the time of offending, lived with his parents, had worked in his family's restaurant, had trafficked over a short period and was a supplier and distributor at above street level.  Also like you, Mok also engaged in some personal drug use but was not categorised as a long term addict.  His offending was also motivated by a lifestyle of gambling, accumulation of debts and greed. 

23The distinction is that you were trafficking principally in the high range of commercial quantity of methylamphetamine, whereas he was trafficking principally in the low range quantity of commercial quantity of cannabis.  Mok was two years younger than you and was assessed as being intellectually average with a low self-esteem and poor social skills.  He received a total effective sentence of 23 months' imprisonment together with a 12-month community correction order with conditions including 100 hours of community work. 

24Parity with another offender, closely associated with the same circumstances including other dealers and background, whilst perhaps strictly not a co-offender, should be considered. 

25In the circumstances, I regard the gravity of your offending a distinguishing factor between you.  It is not appropriate to compare the respective dangerous effects of substance with substance; however, the fact that your trafficking embraced the very high end of the commercial quantity is, in my view, a significant distinguishing feature as to the gravity of offending.  For this reason, I do not consider that a period of imprisonment which embraces a period of attendance within a community correction order is reasonably open. 

26I accept that significant concurrency, that is, concurrency between your offending and the sentences I impose in relation to each, is appropriate reflecting the separate but largely concurrent course of conduct. 

27I have considered the current sentencing practices for trafficking in a commercial quantity and the most recent sentencing cases, as well as the snapshots available.

28It is patently clear that the deterrent effect of punishment is of primary importance in cases of this kind.  These illicit drugs are dangerous: they destroy vulnerable lives.  That is why the severe penalties apply.  If anyone is minded to peddle these substances, particularly for the sole purpose of quick financial gain, they must expect to be dealt with sternly. 

29Notwithstanding this, I have moderated the sentence I might otherwise have imposed by giving effect to your mitigating circumstances and particularly your genuine remorse and my concern that at your relatively young age a lengthy period in the prison environment might otherwise serve to compromise your good prospects of rehabilitation.

30Mr Yuen, would you please now stand. 

31On Charge 1 of trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, you are convicted and sentenced to 4 years' imprisonment

32On Charge 2 of trafficking in a drug of dependence, namely cannabis, you are convicted and sentenced to 18 months' imprisonment

33On Charge 3 of trafficking in a drug of dependence, namely cocaine, you are convicted and sentenced to 9 months' imprisonment. 

34Charge 1 is the base sentence. 

35I direct that four months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and upon each other. 

36The total effective sentence is four years and six months' imprisonment. 

37I direct that you serve a minimum period of two years and eight months' imprisonment before being eligible for parole. 

38

Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 308 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.

39Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that would have been imposed is six years' imprisonment with a minimum of four years to be served before eligibility for parole. 

40At the plea hearing the Crown sought forfeiture and disposal orders which were consented to, and I have made those orders today.  You may be seated, Mr Yuen. 

41Counsel, the Crown also mentioned an order for the retention of a forensic sample, but I believe an order from the court is no longer necessary for that; it happens automatically without a formal court order.  Is that correct?

42MR PORCEDDU:  That is correct, Your Honour. 

43HIS HONOUR:  All right.  Are there any other matters from other counsel?

44MR PORCEDDU:  Thank you, Your Honour. 

45HIS HONOUR:  All right.  If there is nothing further. 

46MS STEPHANIDES:  Please the court, Your Honour. 

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