Director of Public Prosecutions v Zhang
[2022] VCC 527
•1 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZHANLIANG ZHANG |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 March 2022 | |
DATE OF SENTENCE: | 1 April 2022 | |
CASE MAY BE CITED AS: | DPP v Zhang | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 527 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Provide a false foreign travel document – Importation of goods with the intention of defrauding the revenue – Guarded prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1914 s 16A(2); Sentencing Act 1991 s 6AAA.
Cases Cited:Barakat v DPP [2020] VSCA 185; R v Saleh [2015] NSWCCA 288; Tran v The Queen [2021] VSCA 292; Worboyes v The Queen [2021] VSCA 169
Sentence: 24 months imprisonment. Released on Recognisance Release Order after serving 13 months for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Wilson | Office of Public Prosecutions |
| For the Accused | Mr Nikakis | Haines and Polites |
HER HONOUR:
1You have pleaded guilty to the following charges: Charge 1: on 29 July 2019 provide a false foreign travel document; and Charge 2: between 19 July 2020 to 19 February 2021 importation of goods, namely tobacco products, with the intention of defrauding the revenue. Both charges have a maximum sentence of 10 years imprisonment.
Circumstances of the offending
2Your offending is detailed and outlined in an agreed prosecution opening, dated 8 March 2022 and marked as Exhibit A. The factual basis upon which I sentence you is as outlined in this document and the following is only a brief overview.
3On 15 August 2019 the Australian Border Force (‘the ABF’) received a referral via Border Watch, alleging that you were importing tobacco into Australia and using false identity documents to register Post Office boxes to facilitate delivery of the importations.
4In the course of the investigation, the ABF identified a number of mobile phone numbers, email addresses and aliases linked to you. The ABF also executed a warrant on 19 November 2020 at a company called Mail Box Etc (‘MBE’) at 17 Coleman Parade, Glen Waverley VIC 3150.
5MBE has numerous branches in Melbourne, and provides private mailbox “suites”. The ABF seized a lease for Suite #117 at 17 Coleman Parade, Glen Waverley VIC 3150, in the name of Jinqiang Yu. The lease was dated 29 July 2019, and included a copy of the identification presented on the lease application, namely a false People’s Republic of China Passport number G46334371, in the name of Jinqiang Yu and bearing your image. Charge 1 arises from you providing this false Chinese passport as an identity document when you applied to lease MBE Suite 117 at 17 Coleman Parade, Glen Waverley VIC 3150. This passport was later located and seized from your home on 3 February 2021.
6In relation to Charge 2, during the investigation, the ABF detected and seized numerous parcels containing tobacco products which had been sent from China to addresses associated with you. The detections relevant to the charges on the indictment occurred in the period from 19 July 2020 to 19 February 2021.
7The prosecution allege that between 2 March 2020 and 19 February 2021, you, together with local and overseas associates, were involved in an ongoing business of importing tobacco products into Australia and performed conduct directly related to the importation of 50 parcels (consignments) containing illicit tobacco. The details of the 50 parcels (consignments) the subject of this rolled-up charge are set out in a table at Annexure A. The parcels were addressed to various Melbourne and Geelong addresses and PO Boxes. Those consignments arrived in Australia and were seized by the ABF between 19 July 2020 and 19 February 2021.
8Throughout the period of offending, you procured addresses and PO Boxes in Australia to which parcels containing tobacco products (mis-declared as legitimate goods) were sent from overseas. You imported tobacco products to the various addresses, by directing (or otherwise providing the details of such addresses to associates to enable) your associates to send parcels containing tobacco products to those addresses. You did so with the intention of defrauding the revenue, in that you intended dishonestly to deprive the Australian revenue of customs duty that you knew or believed was payable in respect of the tobacco products upon their importation.
9The total revenue defrauded was $437,465. This figure is derived from duty evaded, plus 10% GST payable on that duty. The individual amounts of duty evaded in respect of each of the consignments the subject of the rolled-up charge are set out in the table at Annexure A, along with the quantities of the commodity imported.
10The summary of prosecution opening outlines in detail your various conduct in relation to several addresses, where you entered service agreements and then supplied the addresses and related contact details to unknown associates, thus enabling them to send the parcels containing tobacco products to the address. The relevant Victorian addresses were: suite 275, 17 Coleman Parade, Glen Waverley VIC; Suite 158, 283 Glenhuntly Rd, Elsternwick Vic; Suite 292, 45 Glenferrie Rd Malvern; Suite 297, 16 Cotham Rd Kew Vic; and 21 Charles Street, Brunswick. Packages were also sent from China, addressed to various PO boxes in the greater Geelong area. On 21 October 2020 you sent several instant messages to three separate unidentified associates, in which you provided the details of the series of PO boxes in the Geelong area.
11On 13 November 2020, you used WeChat to leave a series of voice messages for an unknown associate, stating: Post offices, places like that are quite alerted now, damn! It is better to send to smaller cities, it is quiet…[unclear] Big cities such Melbourne, Sydney won’t work, we need to send to small cities.
12The ABF later found that your mobile phone contained spreadsheets with numerous PO box numbers including each of the Geelong area PO Boxes in the table at Annexure A where relevant imports were detected. The spreadsheets also included specific consignment numbers linked to particular names and PO Boxes. Several of these consignment numbers, names and PO Box addresses matched precisely with the details of parcels sent to the various Geelong addresses.
13The prosecution allege that during the charged period, you provided each of the Geelong area PO Boxes to an unknown associate/s overseas, to enable the associate/s to send each parcel containing tobacco products to the respective addresses.
14On 3 February 2021 the ABF executed warrants at your home at 9 Pindari St Glen Waverley, where you lived with your wife and daughters. During the search a number of items were located and seized including: two mobile phones; laptop computer; PC towers, a small quantity of loose tobacco, a NSW driver licence laminates and a card printer.
15Following the execution of the search warrant you were interviewed through a Mandarin interpreter. During the interview, you denied the offending and suggested that you had at some point lost your passport and licence and someone else may have used them to open the MBE boxes that were traced to you.
16You have been in custody since the date of your arrest which totals a period of 422 days in pre-sentence detention.
Nature and gravity of the offending
17The seriousness of Charge 1 is reflected in the maximum penalty. It is alleged that the false travel document was used in the application to lease MBE Suite 117 at 17 Coleman Parade, Glen Waverley. I note that you later leased a different suite at the same address in connection with the tobacco importation. However, in relation to this charge, it is not alleged that your provision of the document was connected to any further criminal offending, beyond of course that associated with providing a false travel document in support of the lease application.
18In relation to Charge 2, which is a rolled up count, taking into account the relevant considerations as outlined in the Court of Appeal case of Tran v The Queen [2021] VSCA 292 I do regard your offending as serious and, in all the circumstances, as warranting an immediate term of imprisonment. Your offending occurred over a 7 month period. You were involved in a number of different consignments and undertook a number of acts, including procuring private mail box addresses, using false identity documents and then providing the addresses to associates to enable illicit tobacco products to be imported to those addresses. As conceded by the prosecution, your precise role is somewhat unclear and they do not contend that you were the only person involved in this venture or in making decisions. However, I accept the submission that you appeared to hold a position of influence and authority over the business operations, as indicated by your possession of spreadsheets relating to a large number of addresses, together with your specific advice to an associate that ‘Big cities such [as] Melbourne, Sydney won’t work, we need to send to small cities’. I also accept that there was a degree of sophistication and planning involved in the offending, illustrated by the keeping of spreadsheets, the use of other people’s names, the use of false identities and the use of a portfolio of different addresses, as a likely means of avoiding detection.
19I was provided with a table of comparative cases, and also specifically the case of Barakat.[1] I have taken these cases into account, particularly as to their pronouncement and application of relevant legal principles. What does appear to distinguish your case however from the majority of these other cases, is the amount of the total revenue defrauded. While the amount defrauded is substantial, when looked at in comparison to other cases, I accept the defence submission that it does fall at the lower end. I take this matter into account in the assessment of the objective seriousness of your offending.
[1] Barakat v DPP [2020] VSCA 185.
20I accept the prosecution submission that in all the circumstances it can be inferred that you were involved in this offending for financial gain. On the evidence, I am unable to make a finding as to how much you stood to gain. Given the nature and volume of this operation, I do not accept your Counsel’s submission that you were only involved in this offending to get some cigarettes and not have to pay $50 a packet.
21I also consider general deterrence to be of importance in your case, particularly as offending of this kind is difficult to detect.[2] As the Court stated in Barakat[3] ‘offences against the revenue are not victimless crimes. They undermine the integrity of the taxation system and the ability of governments to raise revenue in a fair and accountable manner.’
[2] R v Saleh [2015] NSWCCA 288.
[3] Barakat at [53].
Plea of guilty
22I accept that you entered a plea at the earliest opportunity and you are entitled to the full benefit of this. Your plea is of considerable utilitarian value. As the prosecutor Mr Wilson indicated, your case was potentially quite a complicated matter, given the various moving parts and the nature of the evidence. You have saved the public considerable time and expense and have helped facilitate the course of justice in pleading guilty. Also, I accept that there is an additional utilitarian value to your plea of guilty due to the delays and interruptions of jury trials in the COVID-19 pandemic and you are entitled to a ‘palpable amelioration’ of sentence in these circumstances.[4]
[4] Worboyes v The Queen [2021] VSCA 169.
23Also, I accept that while there is no specific evidence as to remorse in your case, your plea of guilty does represent, on your part, an acknowledgment and acceptance of wrongdoing.
Personal circumstances
24I also take into account in sentencing you, as I am required to, your character, antecedents, age, means and any physical/mental condition.
25You are now 38 years of age, born in April 1983 in the People’s Republic of China. You were 36-37 at the time of the offending. You are the only child of parents who continue to reside in China.
26I was told that in China you were schooled and educated and had some employment as a businessman.
27You arrived in Australia in December 2018 with your wife and two young daughters, currently aged 11 and 7. Prior to arriving in Australia you had spent approximately 10 years living and working in Jakarta, Indonesia. Whilst there you engaged in mining related employment. You had intended to remain there. Your plans however were derailed with the change of the Indonesian Government’s attitude to the Chinese/Malaysian businesses in Jakarta, approximately 12 months prior to your arrival in Australia. Given this change in government and community attitude, you planned and intended to permanently relocate with your family to Australia.
28On 10 January 2019, a short while after entering Australia, you and your family applied for a protection visa on the basis that you faced a serious chance of harm by reason of your Christianity and the prejudices that flow from that.
29While pursuing this process, you and your family settled in Melbourne where you remained until your arrest in February 2021. I was told by Mr Nikakis that in Melbourne you had some work in the nature of uber driving, selling e-cigarettes and through a panel repair business in Nunawading.
30In relation to your immigration status, you were advised by letter dated 11 August 2021 that the Department of Home Affairs had rejected your protection visa application. You were in custody at the time and initially I was told that you had not pursued any appeal and that your bridging visa had since lapsed. At the plea hearing both parties agreed that you were an unlawful non-citizen and upon the completion of any sentence I was to impose, you’d be subject to deportation. After the plea hearing I was informed by the prosecution that upon further inquiry it appears that you did in fact seek a review of the primary decision and your bridging visa was therefore extended and is current. You have not yet been allocated a date by the Administrative Appeals Tribunal for a consideration of your case.
31Since your arrest your wife and daughters have returned to China. You have been advised that your wife is commencing proceedings to file for divorce. You have maintained regular telephone and video conference with your youngest daughter, however your eldest is apparently currently refusing to talk to you.
32You report no alcohol or drug related issues. You also have no physical health issues and no previous mental health history. You currently feel depressed as to your current predicament and anxious as to what your future holds. You acknowledge that this relates to the situation you now find yourself in and not to any previous mental health issues.
33You have no prior criminal history.
Matters in mitigation
34Further factors in mitigation were referred to on your behalf by Mr Nikakis, which I take into account. It was submitted that your time in custody on remand has been more onerous and harsh because of the COVID-19 pandemic and the greater restrictions that have applied to prisoners. In all the circumstances, I accept that the COVID-19 pandemic has caused you additional hardship.
35Also, it was submitted that you are more isolated in custody as a non-citizen. You are not fluent in English and all of your family and other supports are in China and you are only able to have very limited contact with them.
36I was told that after the completion of your sentence you expect to return home to China. Your situation may have been different had you not offended and been remanded. Your Counsel did not rely on the prospect of deportation as causing additional hardship in your case. As for your immediate future, it is entirely unclear what awaits you and I make no findings in respect of this. You may immediately return home. You may remain in the Australian community. Even though you have a valid bridging visa at the moment, subject to the sentence I impose, you may be subject to the mandatory cancellation provisions under the Migration Act. If indeed you are, it is unclear if you will seek a revocation of the decision. These matters really do invite speculation and given this, and the respective position of the parties, I do not, in your case, take into account as a mitigating factor the prospect of deportation.
37In assessing your prospects of rehabilitation I take into account the matters personal to you, that I have already canvassed. In particular, I take into account that you have no prior criminal history. Against this, I accept the prosecution submission that given the calculated nature of the offending, and the lack of specific evidence, or at least limited evidence, as to remorse, the Court should be guarded in its assessment of your rehabilitative prospects.
Sentencing principles
38As a federal offender you fall to be sentenced under Part 1B of the Crimes Act 1914. Accordingly, I must impose a sentence that is of appropriate severity in all the circumstances. I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate. It was properly conceded on your behalf that a term of imprisonment was appropriate and just in the circumstances of your case.
39As previously mentioned, I was provided with a table of comparative cases and I have had regard to these and the general landscape of sentencing for such matters. While there are notable differences in the cases, and every sentence involves the exercise of a discretion and is the product of an instinctive synthesis, the cases do provide some guidance and the Court is entitled and required to consider current sentencing practices.
40By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind. I must also look at your rehabilitation and balance the mitigating factors, your personal circumstances and the non-exhaustive matters contained in s16A(2) of the Act. Bearing in mind the maximum penalty, the importance of general deterrence and the conduct involved in your offending, punishment and denunciation are critical sentencing considerations.
41In terms of charges 1 and 2 they are separate offences but I have moderated the cumulation between them so as to reflect your total criminality.
42Both parties agree that a sentence of imprisonment could be structured in your case by way of a recognisance release order that permits your release after the minimum period of imprisonment that the justice of the case requires. In your case, I consider such a sentence to be warranted, appropriate and proportionate to your offending. I also consider, taking into account all the factors I have canvassed, including my assessment of the objective gravity of your offending, that you have to date served a sufficient time in custody and the sentence I propose to impose will reflect this.
43I have also taken into account all of the submissions made by prosecution and defence, including the material in writing that I was provided with.
44Mr ZHANG you are convicted and sentenced as follows:
45On Charge 1: 10 months imprisonment
46On Charge 2: 21 months imprisonment
47I intend to cumulate 3 months of the sentence on charge 1 to arrive at a total effective sentence of 24 months imprisonment. In order to give effect to the cumulation I am intending, I will direct as follows and then I will hear parties if something different is required. The sentence on Charge 2 is to commence immediately, being the base sentence. The sentence on charge 1 is to commence 7 months prior to the expiry of charge 2, which would add the 3 months, or that is the intention.
48I order that you must serve 13 months before you may be released upon entering a recognisance release order in the amount of $1000 to be of good behaviour for a period of 2 years.
49I declare that 422 days pre-sentence detention is to be reckoned as already served under the sentence imposed this day.
50Pursuant to s.6AAA of the Sentencing Act 1991 I declare that, had it not been for your plea of guilty, I would have sentenced you to 2 years and 8 months, with an order that you serve 1 year and 8 months, or 20 months, before being released upon a recognisance release order.
51Are there any other orders that need to be made in relation to this matter?
52HER HONOUR: Mr ZHANG you have been sentenced to 24 months imprisonment but after serving 13 months you may be released upon entering a recognisance release order. The order is in the amount of $1000 but you do not have to pay the $1000 at the time of entering the recognisance release order. That $1000 will be forfeited should you breach the order which requires you to be of good behaviour for a period of 2 years. The 13 month period that you are required to serve has already been deducted from your sentence, which means that you have already served this period. Do you understand the sentence that has been imposed upon you?
53ACCUSED: (through interpreter) I do.
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