Director of Public Prosecutions v Zheng
[2024] VCC 773
•29 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00062
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LITAO ZHENG |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2024 | |
DATE OF SENTENCE: | 29 February 2024 | |
CASE MAY BE CITED AS: | DPP v Zheng | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 773 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Drug Trafficking – Commercial Quantity – Proceeds of Crime – Consignments – Comparable Cases – Offending confined to one day - Small but critical cog – quantity based sentencing regime – abnormal burden of imprisonment – language difficulties – lack of support network – risk of deportation – early plea – insufficient evidence of remorse – rehabilitation must give way to general deterrence – strong denunciation – mandatory imprisonment.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991
Cases Cited:Ellis v The Queen [2018] VSCA 221; Gregory v The Queen (2017) 268 A Crim R 1; Sharbell v The Queen [2018] VSCA 324; Chong v The Queen [2019] VSCA 216; R v Olbrich (1999) 199 CLR 270; Director of Public Prosecutions v Leach [2003] VSCA 96; Dao v The Queen (2014) 240 A Crim R 574; Lau v The Queen [2021] VSCA 162; Director of Public Prosecutions (Cth) v KMD [2015] VSCA 255; R v Wong (2001) 207 CLR 584; Quy Nguyen v R [2017] VSCA 127; Director of Public Prosecutions (Cth) v Estrada (2015) 45 VR 286; Guden v The Queen (2010) 28 VR 288; Baroch v The Queen; Ater v The Queen [2022] VSCA 90; R v Howard [2009] VSCA 281; Worboyes v The Queen (2021) 96 MVR 344; Barbaro v The Queen (2012) 226 A Crim R 354; DPP v Thomas [2016] VSCA 237; Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162; Lim v The Queen [2018] VSCA 64; Kao v The Queen [2019] VSCA 84; Arico v The Queen [2018] VSCA 135; Nguyen v The Queen [2011] VSCA 32; Director of Public Prosecutions (Cth) v Aisbett [2009] VSCA 172.
Sentence: Total Effective Sentence of 2 Years 6 Months Imprisonment; Non-Parole Period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Danos | Office of Public Prosecutions |
| For the Accused | Mr J. Mortley | Emma Turnbull Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1Litao Zheng, you have pleaded guilty to one charge of attempting to possess a drug of dependence, one charge of trafficking in a drug of dependence in a commercial quantity and one summary offence of dealing with the proceeds of crime.
2The maximum penalties for these offences are as follows:
· Attempt possess a drug of dependence, five years' imprisonment.[1]
· Trafficking in a drug of dependence, commercial quantity, 25 years' imprisonment.[2]
· Dealing with the proceeds of crime, two years' imprisonment.[3]
[1] Drugs, Poisons and Controlled Substances Act 1981, s 73(1)(c) (‘the Act’)
[2] Ibid, s 73AA(1).
[3] Crimes Act 1958 (Vic), s 195.
Summary of Offending
3On 6 January 2022, a consignment of eleven boxes of goods declared as 'Essence' arrived in Melbourne. The consignment details were:
a. Consignee: Litao Zheng;
b. Address: 23 Prospect Hill Drive, Bundoora VIC 3083;
c. Supplier: Lyne Lai, No.30, Jianan Road, Baoan Fuyong Street, Shenzhen;
d. Total weight: 199.5 litres.
4The shipment was examined by Australian Border Force staff on 18 January 2022 and testing returned a positive reading for 1,4-Butanediol. The shipment was subsequently held back, and Victoria Police were notified.
5On Tuesday 26 April 2022, the Major Drug Squad executed a search warrant at 23 Prospect Hill Drive, Bundoora.
6That house was sublet and had numerous occupants. Each room was locked and contained personal effects belonging to different people. Two occupants were found in different rooms there, Jiarui Zhang and Wei Lin.
7No drugs were found in either room or on either person. Investigators forced entry to a room which has been identified as your bedroom. Five boxes were found, each a different consignment containing beauty products.
8Each package contained thirty-two 500 millilitre bottles packaged and labelled as ‘Skin Intensive Repair Essence’. The packaging was similar to the items seized by the Australian Border Force in March 2022.
9Inside the boxes was a single 500 millilitre bottle labelled with Chinese writing. The contents were sealed by a capped lid.
10Preliminary testing returned an inconclusive result, however based on the viscous nature of the liquid, the packaging similarities and evidence of other items located inside the residence, the contents were believed to be 1,4-Butanediol.
11Investigators also located in the ground-floor lounge room a plastic shopping bag containing twenty 500 millilitre ‘Mount Franklin’ water bottles. Random testing of some of the bottles returned a positive reading for 1,4-Butanediol.
12A further search of your room yielded the following:
a.Five clear 500 millilitre ‘Mount Franklin’ water bottles, the contents of which appeared to be frozen. They were located in the bottom of the clothing wardrobe. Testing returned a positive reading for 1,4-Butanediol;
b.A Chinese passport in your name in the top drawer of the bedside table;
c.Photographic identification cards in your name including a Victorian Learner's Permit, a Chinese licence, and a Boral worksite induction card;
d.Various documents in your name, including bank documents, VicRoads vehicle registration forms, work forms, permits and other financial documents.
13In total, Australian currency with a value of $26,300 was found in your room. That forms the basis of summary Charge 7 – dealing with proceeds of crime.
14You were not present at the time of this search. Investigators tried to get you to return to the address and surrender yourself, but you refused.
15Attempts between April and June 2022 to locate you determined that you did not return to the Bundoora address. You remained at large in metropolitan Melbourne.
16On 16 June 2022 at approximately 4.10 pm, police intercepted you in Blackburn after observing you driving whilst operating a mobile phone. You were then arrested. A search of your car yielded a mobile phone and Australian currency totalling $1,760.
17You were taken to the Melbourne West Police Complex for interview. You denied any knowledge of the attempted imports, you denied living at the Bundoora house, and you denied knowing of any of the items located at that address.
18In total, investigators seized approximately 199.5 kilograms or litres of 1,4-Butanediol. This is the subject of Charge 1. It is not alleged by the prosecution that you were aware of the total amount of the consignment the subject of Charge 1 – attempt to possess a drug of dependence.
19Approximately 82.5 kilograms or litres of 1,4-Butanediol was found in your bedroom and this is the subject of Charge 2. It is not alleged by the prosecution that you were aware of the real or significant chance that you were trafficking more than 20 kilograms of this substance. These facts form the basis of Charge 2 – trafficking in a commercial quantity of a drug of dependence.
Counsel Submissions
20Mr Mortley, on your behalf, submitted that you had a modest involvement in the overall trafficking scheme. It was conceded by the prosecution that there was no evidence to suggest that you were aware of the quantities of drugs involved, nor of how their importation was effected. Further, there was no evidence to suggest that you handled the payment for or distribution of the drugs and, the fact that the consignment was in your name, suggests that you were a disposable cog in the operation.
21It was submitted that you continued to work between the execution of the warrant and your eventual arrest. I was told that whilst on remand you have continued to work in the kitchens.
22You have also endured a particularly onerous time whilst on remand. It was submitted that because you are unable to speak English, you are effectively unable to engage with other prisoners and correctional officers. You have kept to yourself in prison. You have not informed your family about your whereabouts, and you have had minimal contact with others outside gaol other than infrequent visits from an old work colleague. Your time on remand has been spent aware that you are likely to be deported upon completing your sentence.
23You have no diagnosed mental or physical ailments which could be said to influence my sentencing exercise.
24It was submitted that your plea should be regarded as an early plea of guilty, albeit one delayed by the provision of incomplete depositions and disclosure, the blame for which cannot be sheeted home to you.
25Mr Mortley accepted that a term of imprisonment involving the fixing of a head sentence and a non-parole period is inevitable.
Comparable Cases
26I was not referred to any comparable cases, but I have had regard to the helpful summary provided by the court in Ellis v The Queen.[4] I note that pursuant to appellate commentary on the matter, I am bound to consider only those sentences which post-date the case of Gregory.[5]
[4] [2018] VSCA 221, [29].
[5] Gregory v The Queen (2017) 268 A Crim R 1 (‘Gregory’). See Sharbell v The Queen [2018] VSCA 324, [5]; Chong v The Queen [2019] VSCA 216, [68].
Personal Circumstances
27You were born in September 1991 in Fuzhou City, Fujian Province in China. You have one younger brother who is currently 29 years old. You completed high school in China and have no tertiary qualifications. Following high school, you commenced working with computers. In early 2018, you obtained training in plastering. In mid-2018, you travelled to Australia on a student visa to study English. Mr Mortley submitted that your plan was to study, learn English, earn money and eventually obtain a valid visa to continue working in Australia. However, you found studying difficult and subsequently quit your studies to work full-time in plastering.
28Your visa expired in 2021. I was told that you were not aware of your visa lapsing because you were preoccupied by the ailing health of your maternal grandmother back in China and the pressure of work as a plasterer.
29Mr Mortley noted that you have no drug, alcohol or substance abuse issues. You occasionally consume alcohol and you occasionally gamble. You have a very limited social network and very few friends, all of whom are described as casual friends, co-workers and ‘drinking buddies’ in the community.
Gravity of Offending and Moral Culpability
30I turn now to the gravity of your offending. As the Court of Appeal observed in Gregory v The Queen,[6]
'As with any other category of offending, there is wide variation in the seriousness of commercial quantity trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offenders, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range...variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence'.
[6] Gregory v The Queen (2017) 268 A Crim R 1, 23 [95] (‘Gregory’).
31It can, in certain circumstances, be useful for a sentencing court to differentiate the sentences of ‘principals’ or ‘ring leaders’ of trafficking operations from those who might be described as couriers or crop sitters.[7] It should nonetheless be recognised that even people who acquit marginal roles are 'very important, if not in many instances, essential to the conduct of the illicit drug trade'.[8]
[7] E.g., R v Olbrich (1999) 199 CLR 270, 279 [19]-[20] (‘Olbrich’).
[8] Director of Public Prosecutions v Leach [2003] VSCA 96, [3].
32Rather than attaching a label to your offending and sentencing you on that basis, the more fundamental task I have is to assess the extent of your conduct in light of all the relevant facts. If I am to satisfy myself that you maintained a lesser, or minor, role in the trafficking operation, I must satisfy myself that there is a sufficient evidentiary basis for doing so.[9] An absence of evidence of greater involvement is insufficient.[10]
[9] Olbrich (n 7) 291 [25].
[10] E.g., Dao v The Queen (2014) 240 A Crim R 574, 582 [17], 587 [38].
33Participating in an elaborate drug trafficking operation, at whatever level, is serious offending. There is no dispute that you were low on the totem pole in the operation. I was told that you were given petty cash in return for having packages delivered to your house. There is no evidence of undue enrichment, and your living arrangements were exceedingly modest. Likewise, the fact that you continued working as a plasterer until you were arrested, grounds the inference that your reward was insufficient to maintain your modest life. These packages were collected from your house by others.
34On one view, you were a critical cog. Without someone to receive the consignments, there could be no distribution. However, your involvement was artless. The packages were addressed to you and any interception of them by the authorities exposed you to detection, arrest, prosecution and detention. You were, therefore, dispensable in the eyes of those overseeing the operation.
35Your counsel’s characterisation of your role as low level was accepted by the learned prosecutor at your plea. I am satisfied on the balance of probabilities that your role was confined to receiving the consignments and storing them for collection by others.
36In pleading guilty to Charge 1, you accept that you possessed approximately 199.5 kilograms or litres of 1,4-Butanediol. However, the prosecution does not assert that you were aware of the size or weight of that consignment.
37The charge of commercial trafficking is confined to one day and relates to the 82.5 kilograms or litres found in your bedroom. The prosecution does not allege that you were aware of the real or significant chance that you were trafficking more than 20 kilograms, hence the commercial trafficking charge.
38In considering the gravity of your offending, the weight of the drugs involved in your trafficking is a relevant consideration.[11] As the Court of Appeal noted in Gregory, the sentencing regime for trafficking offences in quantity based.[12]
[11] E.g., Lau v The Queen [2021] VSCA 162, [31]; DPP (Cth) v KMD [2015] VSCA 255.
[12] Gregory (n 6) 7-8 [23].
39The amount you are said to have trafficked is 41 times the threshold for a commercial quantity of 1,4-Butanediol. Quantity, however, is not necessarily the sole consideration and the facts in this case are unusual.[13]
[13] R v Wong (2001) 207 CLR 584, 609 [69]-[70]; Quy Nguyen v R [2017] VSCA 127, [25]-[26].
40Charge 2 is a category 2 offence for which a prison term is mandated under Division 2 Part 3 of the Sentencing Act 1991 unless the criteria under s 5(2H) are met. No submissions were advanced suggesting that a disposition other than gaol was warranted here.
Circumstances in Prison
41Given the accepted inevitability of a gaol term, there are two relevant factors which mitigate the sentence I am to impose.
42You are a Chinese national, having come to the country on a student visa in 2018 without any friends or relatives. You are likely to find imprisonment more burdensome. You will undergo incarceration without the comfort and support of friends or family[14] You are unable to speak English and this prevents you from communicating with the majority of other prisoners or prison staff. You are likely to experience a considerable degree of social and linguistic isolation. Gaol will be more burdensome for you. I have moderated your sentence to account for this additional hardship.
[14] E.g., Director of Public Prosecutions (Cth) v Estrada (2015) 45 VR 286, 296 [38].
43You do not have a valid visa. You are at risk of being deported once you have served your sentence. The sentence you serve will be spent in the expectation that your life in this country will cease with your sentence. This expectation will weigh on you whilst you undergo your sentence. I accept that imprisonment is likely to be more burdensome for you as a consequence and I intend to apply the principles enunciated in Guden.[15] A notable reduction in sentencing requires evidence to demonstrate the likely impact of deportation based on the personal characteristics of the offender.[16] I have not been provided with such evidence, but I am nevertheless prepared to accept that deportation is sufficiently probable to moderate my sentence to some extent.
[15] Guden v The Queen (2010) 28 VR 288, 295 [25]-[27].
[16] E.g., Baroch v The Queen; Ater v The Queen [2022] VSCA 90, [48].
Plea of Guilty
44It was submitted that your pleas of guilty were entered at an early stage. That submission was not contested, and I am prepared to accept that your pleas were entered relatively early in time, and that you are entitled to a discount in your sentence to account for the utility of your pleas.[17]
[17] E.g., R v Howard [2009] VSCA 281, [16].
45You offered to plead guilty in August 2023. I accept that you have pleaded guilty during a time where the court was still, to some diminishing extent, experiencing the effects of the COVID-19 pandemic. Your pleas entitle you to an additional discount in keeping with the principles enunciated in Worboyes.[18]
[18] Worboyes v The Queen (2021) 96 MVR 344, 356-357 [39] (‘Worboyes’).
46It was submitted in writing that your pleas of guilty demonstrate an acceptance of responsibility and remorse. This position was not advanced upon orally, and there is insufficient material before the court to conclude that your pleas are a sufficient indication of remorse to warrant a further reduction of your sentence.[19]
[19] E.g., Barbaro v The Queen (2012) 226 A Crim R 354, 366 [40].
Sentencing Principles
47Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
48I accept that you are unlikely to reoffend. You have no prior criminal history and you have a decent work history. You also pleaded guilty to these charges in a timely and responsible way. Your prospects of rehabilitation are therefore reasonable. However, such prospects and other matters personal to you must give way to the significance of general deterrence in cases of commercial trafficking. As the court in DPP v Thomas said:[20]
'In the case of drug importation offences, general deterrence is to be given chief weight in sentencing. Stern punishment will be warranted in almost every case in order to advance that purpose. Factors personal to the offender are thus ordinarily given less weight than might otherwise be the case'.
[20] [2016] VSCA 237, [193]. See also Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162, [9]; Lim v The Queen [2018] VSCA 64, [33]; Kao v The Queen [2019] VSCA 84, [63].
49General deterrence has a prominent role to play in cases of large-scale drug trafficking such as this one.[21] It is unacceptable for anyone in your position to allow themselves to facilitate commercial trafficking of illicit substances, however modest their role. Commercial trafficking to any extent typically attracts significant sentences.[22]
[21] E.g., Arico v The Queen [2018] VSCA 135, [321]-[325].
[22] Nguyen v The Queen [2011] VSCA 32, [34(9)].
50The role you played in the operation does, to some degree, narrow the function of general deterrence in my sentence. As the Court of Appeal said in DPP (Cth) v Aisbett:
'The contrast between persons hired to unpack drugs and load them in a van on the one hand and those who plan and arrange the importation on the other hand is marked. Labour to perform menial tasks can always be hired. The principal effect of sentencing concentrated on deterrence is likely to be an increase in the cost of that hire'.[23]
[23] [2009] VSCA 172, [12].
51The nature of your conduct calls for strong denunciation and an emphasis on the protection of the community from the insidious effects of drug trafficking, but I have not lost sight of the matters personal to you in determining your sentence.
Sentence
52Mr Zheng, please stand.
53On Charge 1, attempting to possess a drug of dependence, you are convicted and sentenced to three years' gaol.
54On Charge 2, trafficking in a commercial quantity of a drug of dependence, you are convicted and sentenced to three years' gaol.
55On summary Charge 2, dealing with the proceeds of crime, you are convicted and sentenced to three months' gaol.
56
The sentence on Charge 2 is the base sentence. I order six months of Charge 1 to be served cumulatively upon the sentence on Charge 2. I order that the period in summary Charge 2 be served wholly concurrently with the sentence on
Charge 2. That produces a total effective sentence of three years, six months. I fix a non-parole period of two years.
57I declare that you have served 623 days by way of pre-sentence detention and those days are to be reckoned against your sentence.
58Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a sentence of five years, six months with a non-parole period of three years, six months.
59Forfeiture orders have been sought by the prosecution. They are not opposed, and I will make those orders.
60MR DANOS: The forfeiture and the disposal orders.
61HIS HONOUR: And disposal?
62MR DANOS: Yes.
63HIS HONOUR: Yes.
64MR DANOS: As Your Honour pleases.
65HIS HONOUR: Very well. Anything arising?
66MR MORTLEY: No, Your Honour.
67MR DANOS: No, Your Honour.
68HIS HONOUR: All right. Mr Zheng can be taken away.
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