Director of Public Prosecutions v Zhang

[2015] VCC 282

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02402

DIRECTOR OF PUBLIC PROSECUTIONS

V

ZHONG JIE ZHANG

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 March 2015
CASE MAY BE CITED AS:	DPP v Zhang
MEDIUM NEUTRAL CITATION:	[2015] VCC 282

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Piechutowska
For the Accused	Mr J McLoughlin

HIS HONOUR:

1Zhong Jie Zhang, you pleaded guilty to an indictment charging you with an offence of attempt to possess a drug of dependence, namely pseudoephedrine.  The offence took place on 20 April 2012.  You have no prior convictions.  The maximum term of imprisonment for that offence is five years.

2The prosecution tendered and relied upon a plea summary.  I will mark that Exhibit A.  It was read yesterday.  I shall not read it again.  Suffice to say that the offence arose out of an importation of a package from China, addressed to 12 Union Grove, Springvale, which was an address at which you had previously lived.  It was then and perhaps still is a residence that is occupied by a number of different persons.

3The package had a declared weight of 27.2 kilograms.  it contained, amongst other things, six vacuum flasks, each containing a quantity of small, pink and yellow granules in foil packages, secreted in their bases.  The package was intercepted by Customs.  The contents of the vacuum flasks was retained by Customs and six vacuum flasks of similar type were substituted, of course not containing any of the pink and yellow granules, or indeed any other substance.  The package was reconstituted to give the appearance of its original form, and delivered to the address to which it was consigned, namely 12 Union Grove, Springvale. 

4The delivery was made on 20 April during the morning.  About two hours or so later, you arrived at the premises, collected the parcel and drove back to your residence at Unit 3, 67 Regent Avenue, Springvale.  The small pink and yellow granules in the six vacuum flasks, imported from China, were analysed and found to be 30.8 per cent pure pseudoephedrine.  The total weight of 3,473.8 grams, yielding a total of pure pseudoephedrine of 1,069.9 grams.  That is, as a matter of fact, well above the large commercial quantity for pseudoephedrine. 

5You were not spoken to by police until Customs executed a search warrant upon your premises at Unit 3, 67 Regent Avenue on 3 July 2012.  On the following day you participated in a taped interview with Customs, using a Mandarin interpreter.  Passages from that are summarised in the plea summary, Exhibit A. 

6From my reading of those passages and indeed by looking at the original text of the transcript of that interview in the brief of evidence, with which I was also supplied, the explanation which you gave to Customs was along the lines that on the day of the delivery of the package to 12 Union Grove, Springvale, that is Friday 20 April 2012, ordinarily you would have been working, but it happened that you received a telephone call from your friend, a Mr Ming Qiu, with whom you had been in primary school from about the age of five, and who had also come to Australia.  He was apparently then living in Sydney.  He rang you, apparently out of the blue, on a day when you happened not to be working, even though you had been a plasterer for about three years and worked six days a week, and said that a parcel had already been delivered to your former residence at 12 Union Grove, Springvale. 

7No explanation as to why it would have been delivered there.  No explanation as to why he was ringing you out of the blue, and no explanation given to Customs as to the extraordinary coincidence that you happened not to be working on that day and were available to go and collect the package, which was his request, that you should collect it and look after it for him.  That I regard as an incredible explanation.  You repeated that sort of explanation, but elaborated to some extent upon it in the course of evidence which you gave during the plea hearing.

8I was unimpressed by you as a witness.  I regard the evidence you gave as false, and I regard the explanation you gave to Customs as false.  I am satisfied beyond reasonable doubt about that.  That is not to say that aggravates your criminal conduct. 

9I note also that during the course of the interview with police, you claimed, in terms, not to have inspected the items contained in the package.  However when your mobile telephone was later examined and photographs of the vacuum flasks that had been planted in the package by Customs, of course empty, were shown to you, you changed your story and said that Mr Qiu had called you shortly after you had taken possession and advised you to open the consignment to see what was in it.  You then opened the consignment, took photographs of the consignment and its contents and sent the photographs to Mr Qiu.

10That supports my conclusion that I have not been provided with a true explanation for your involvement in this criminal venture.  The criminal venture itself was a substantial one.  You claim not to have expected any reward.  That, too, I find difficult to accept, however I can make no findings as to precisely what your role in this venture was or what your reward might have been, because no explanation that I could regard as credible has been provided to me, either in the form of answer given in your record of interview or in the evidence that you gave during the course of the proceedings. 

11I am left to sentence you on the basis of the bare facts, and the bare facts are that you engaged in a criminal venture, by attempting to possess a package which you knew or believed contained a drug of dependence, and that you were part of a criminal venture which involved other people.  I cannot find that your role was more than a courier, a minder, a relatively low-level gofer, if you like, in the proceeding.  I cannot be satisfied beyond reasonable doubt that you were the organiser or an organiser or principal beneficiary in the criminal venture, and I do not proceed to sentence you on any basis that your role was higher than that, which I have endeavoured to identify. 

12Your counsel provided me with an outline of plea submissions, along with a chronology, and I mark that document Exhibit 1 on the plea.  I incorporate both Exhibit A and Exhibit 1 in their entirety into these reasons for sentence. 

13

The chronology shows that you were born in Fujian Province in China on

7 October 1990.  You were 21 years of age at the time of the offending conduct.  You are 24 years of age now.  It seems that you had a fairly normal childhood and came from a decent, working family in China and were educated in China until you came to Australia in 2007, in order, apparently, to study English and improve your prospects.  You had, apparently, nearly finished Year 10 and were class president at the time you left to come to Australia.

14You left the language school after six months and you took up full-time work thereafter, first as a painter and then as a plasterer, and you have, apparently, consistently worked as a plasterer since about April 2008.

15

You moved to Melbourne in 2009, met a young lady also from Fujian Province.  Your visa expired in March 2010.  You apparently lived at 12 Union Grove, Springvale in 2011 and up to February 2012, with the young lady,

Ms Wen.  Your son was born to Ms Wen in July 2011.  He is now three years and nine months old. 

16You were charged with this offending conduct on 24 July 2013, in other words a period of about 15 months after the offending conduct took place, and more than 12 months after you were interviewed by the police.  Thereafter it seems your intention was to contest the hearing, because you conducted a contested committal proceeding and the matter was fixed for trial on 1 December 2014.  You pleaded guilty at the door of the court, so to speak, and the matter was then set down for a plea hearing. 

17You, in more recent times, have been living with another young lady of Vietnamese origin. 

18You apparently have no history of drug or alcohol abuse and no subsequent offending.  I have already indicated that you have no prior convictions or criminal history. 

19You have pleaded guilty, I cannot give you credit for an early plea, but you are entitled to the utilitarian value of your plea of guilty.  It is consistent with remorse, although I have not seen or heard any convincing evidence of remorse on your part. 

20You are still a young man and you have led a trouble-free life, apart from this offending conduct and it would seem that your prospects of rehabilitation and staying out of trouble in the future must be regarded as good. 

21Your counsel rightly drew my attention to the delay of almost three years since the offending conduct.  That is clearly a mitigating factor in this case.  The matter has been hanging over your head for a long time.  There was what seems to me to be a rather lengthy delay between the offending conduct and you being charged.  It may well be that there was a Customs investigation in progress which involved a number of lines of enquiry, but nevertheless it is a particularly lengthy delay, given the relative simplicity of the facts relating to this matter. 

22The totality of the delay has not only involved a stressful period for you, but has also given you the opportunity of demonstrating that you are indeed a person who has good prospects of staying out of trouble in the future, because you have not offended again in the intervening period and apparently have been working, albeit without a visa, which would ordinarily entitle you to do so. 

23My attention was invited to a number of other cases involving young men in similar activities and I was invited to consider the relative similarities in the factual situations and the sentences imposed in those cases.  I note, of course, that every case has to be decided on its own facts and this is certainly no exception. 

24It was submitted on your behalf that a sentence which did not involve an immediate custodial sentence was an appropriate sentence in all the circumstances and that I should consider a Community Corrections Order. 

25My attention was also drawn to the fact that your immigration status is at best uncertain, that you apparently have no valid visa, although I find that somewhat surprising.  But I accept entirely that now and probably for some time previously, your immigration status has been a matter of concern.  You have a young child in Australia and apparently a relationship with another young woman and a wish to stay.  If I was to sentence you to a term of imprisonment, that would be a matter weighing on your mind and it would make serving your time harder.

26I cannot predict what the outcome of any request you may make to stay in Australia will be, but I do accept that it is a matter of some concern to you and will weigh upon you over the period of the next several months until that becomes clearer.

27The prosecution drew my attention also to a number of sentencing principles, which are set out in a document headed "Sentencing submissions", and I mark that document Exhibit B, and incorporate that into these reasons for sentence in its entirety.  I do not think there was any controversy about the sentencing principles set out in that document, although Mr McLoughlin, on your behalf, invited me to view parts of it with some caution. 

28I am, of course, wary about comparing one case with another.  However my particular attention was drawn to sentences imposed upon Mr Ming Qiu and also upon two other persons, one of whom is Wei Wei Qiu and a Quin Long Lin, who are apparently referred to in the course of the interview conducted by Customs with you in July 2012. 

29I take note of those matters, although they are not co-offenders in this offence, strictly.  I think Ming Qiu was sentenced for his part, was he not, in this matter?

30MS PIECHUTOWSKA:  No, Your Honour. 

31HIS HONOUR:  No, he was not?  No.  So he is not a co-offender in relation to this matter.

32MS PIECHUTOWSKA:  No. 

33HIS HONOUR:  However, each of those persons received terms of imprisonment for their part in offending of a not dissimilar nature.

34I am bound to consider a number of sentencing principles, one is to impose a sentence that expresses the denunciation of this court of offending conduct of this kind.  Secondly, to punish you adequately for your offending.  Thirdly, to deter you from committing further offences.  I do not regard that as being a particularly important consideration in this case, because you have demonstrated a capacity to stay out of trouble since this offending conduct. 

35I am also required to give proper effect to the principle of general deterrence. That is a matter of particular importance in cases like this, and supports the need to impose sentences of the kind that were imposed on a number of the offenders whose cases were drawn to my attention during the course of the plea. 

36I am also bound to impose a sentence which facilitates your rehabilitation, consistent with balancing the other sentencing considerations.  I am bound also not to impose a term of imprisonment if there is another suitable alternative sentence. 

37My attention was drawn to the case of Boulton & Ors v R, and the principles that are set out therein.  I take those into account and also the way in which that case has been applied in other cases, in the early part of this year.  However, I am satisfied that this is a case where I am required to impose a term of imprisonment.  It is only by doing so that the court can properly denounce this kind of conduct, and properly impose a sentence that has the capacity to deter others.  Unless the courts impose terms of immediate imprisonment for this kind of offending, even for offenders who are at the low end of the scale, there is little hope of reducing the instances of offending of this kind.

38For that reason, I have determined that a sentence of imprisonment is the only sentence that I can properly impose.  However, given the various mitigating factors, your age, in particular, the fact that you have pleaded guilty, the delay and the relatively low level of the role that you played in the criminal enterprise to which you attach yourself, I do regard the appropriate sentence as being towards the very low end of the scale of sentences for this type of offending.

39Would you please stand now.  Zhong Jie Zhang, for the offence of attempting to possess a drug of dependence, I convict you and sentence you to imprisonment for a period of five months. 

40I declare one day of pre-sentence detention as time served under that sentence and to be deducted administratively from the sentence that I have imposed. 

41But for your plea of guilty, I would have sentenced you to imprisonment for a period of 15 months, with a non-parole period of ten months. 

42Are there any other orders? 

43COUNSEL:  No, Your Honour.

44HIS HONOUR:  Thank you.  Thank you,  Mr Interpreter.  10.30.

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