Director of Public Prosecutions v Zhou
[2019] VCC 1933
•21 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-00241
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS HONG YUN ZHOU |
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| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29-31 July, 1-2, 5-6 August 2019 (trial) 15 November 2019 (plea) |
| DATE OF SENTENCE: | 21 November 2019 |
| CASE MAY BE CITED AS: | DPP v Zhou |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1933 |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – importing a border controlled precursor – commercial quantity – ephedrine – arranging delivery of parcel – precursor concealed within belts – serious drug offence – substantial street and wholesale value – emotionally neglectful childhood – significant trauma in young adulthood – post-traumatic stress disorder – Verdins not applicable to assessment of moral culpability – applicable to burden of imprisonment – young offender – good prospects for rehabilitation – recognizance release order not within range – non-parole period
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J. Saunders (for trial and plea) with Mr D. Sagnelli (for sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr C. Mandy S.C. | Melasecca Kelly & Zayler |
HER HONOUR:
1. Douglas Hong Yun Zhou, on 6 August 2019, a jury found you guilty of one charge of importing a commercial quantity of a border controlled precursor, namely ephedrine, contrary to the Criminal Code (Cth).
2. The ephedrine was found by Australian Border Force on 1 December 2016 in a parcel brought in to the country by a DHL express consignment. The parcel contained 118 men’s belts. The belts were in effect lined or stuffed with ephedrine. The total weight of the ephedrine concealed in the belts was 3.343 kg.
3. The parcel was addressed to Jianlun Yu at his home address in Box Hill. The mobile telephone number for the consignee, appearing on the consignment, was yours.
4. You were a friend of Mr Yu. The two of you had met through online gaming. Sometime in late 2016, using the messaging service WeChat, you had asked Mr Yu to help you accept a parcel. He agreed and, at your request, in November 2016, provided his full name and address to you for that purpose.
5. On 2 December 2016, you sent a series of messages to Mr Yu, advising that an express parcel was to be delivered to his home and asking whether he would be home to accept delivery. When Mr Yu advised he was not home, you messaged that you would have to go to his house to take delivery yourself.
6. The parcel was not delivered. Four days later, an acknowledged associate of yours contacted DHL to inquire about when the parcel would be delivered. The information provided by DHL indicated the parcel was with customs for inspection. Within moments of that call, you sent the first of a sequence of messages to Mr Yu telling him not to take the parcel if it was delivered, to deny any knowledge of it if he were asked questions about it and warning him that, otherwise, he would be in trouble.
7. The following day, Mr Yu messaged you, asking you what was going on and you again told him to say the parcel was not his and that you could not talk about it over the phone. That prompted Mr Yu to ask, by message, “could it be white …” and you replied, “no. White raw materials.”
8. Three months later, you sent a further message to Mr Yu saying, “remember to delete the record.”
9. It was not until May 2017 that you were arrested and questioned, that is about five months later. At that time you told police that you knew Mr Yu and that you knew the Box Hill address, as you had been there for a party. You denied having asked Mr Yu to receive a parcel from overseas and, when shown the WeChat messages that I have detailed, you admitted that they had been sent using your WeChat identification but denied that you were the sender. You acknowledged the mobile telephone number on the parcel belonged to you and that you had previously used that number. You asserted however that your phone had been stolen some months earlier.
10. An examination of your mobile telephone, the one that you had at the time of arrest, revealed that, although you were using a new number, the IMEI number was the same for both the telephone number on the consignment and your new telephone number. This indicates that your phone had not been stolen and had not been misused by somebody other than you.
11. By the time of trial, you acknowledged that you had, in fact, asked Mr Yu to receive the parcel and that you had sent him the messages from your WeChat account. It was also acknowledged that, by the time you sent the messages of 4 and 5 December to Mr Yu telling him not to take delivery of the parcel and in describing the contents of the parcel as “white raw materials”, you knew, believed or were aware there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor. Your defence, however, was that the prosecution could not prove that you knew, believed or were aware that there was a substantial and unjustifiable risk that the parcel contained a border controller precursor at the time of importation, that is by 2 December, when you were making arrangements to receive the parcel from DHL at
Mr Yu’s home in Box Hill.
12.
By its verdict, the jury rejected your defence. It was satisfied beyond reasonable doubt that, at the time of importation, that is, by no later than the time you messaged Mr Yu to arrange for the receipt of the parcel on
2 December, you knew, believed or were aware that there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor.
13. As ephedrine is a border controlled precursor, its importation (without lawful authority) is a criminal offence under the Criminal Code (Cth). It is punishable by a maximum penalty of 25 years’ imprisonment, 5000 penalty units or both.
14. The pure weight of the ephedrine sought to be imported was just over 1.7 times a commercial quantity and it was valued as a chemical at between $63,000 and $165,000. Ephedrine is also used as a precursor in the manufacture of methylamphetamine and the prosecution, in their helpful submissions on the plea, identified the evidence that estimated that, if the ephedrine had been used to manufacture methylamphetamine and the manufactured methylamphetamine derived as a result had been sold in kilogram lots, that is, wholesale, it would have been valued at somewhere between $184,000 and $230,000. Its street level value if it was sold in grams was estimated to have been between $965,000 to $1.3m. That is an indicator of the seriousness of the offending and the significance of the amount that was imported.
15. Importation of a commercial quantity of a border control precursor is by definition a serious drug offence and a further measure of that, apart from Parliament's declaration that it is a serious drug offence, is the maximum penalty prescribed by Parliament, namely 25 years’ imprisonment.
16. On the evidence that the jury by its verdict must have accepted, your role was to provide a safe address for the delivery of the ephedrine once it had arrived in Australia. You did so by placing somebody between you and the receipt of the parcel, thereby enabling you to distance yourself from physical connection with it in relation to its importation and delivery into Australia.
17. This was no spontaneous act. You had asked Mr Yu sometime earlier to accept the parcel and you had asked him to provide his full name and address earlier also. The name and address that he gave you were faithfully recorded as the consignee on the parcel when it came into the country. You were clearly aware that the parcel had been dispatched and was due to be cleared and delivered on 2 December. The clear inference is that you were then going to take possession of the parcel and its contents once it had been safely delivered into Australia and to Mr Yu's address. It can be inferred therefore that you were trusted by those who had dispatched the parcel and those to whom you were to hand it on. The evidence does not permit me to make a finding that your role involved more than this. Nor, however, does it permit me to make a finding that your role involved no more than this. All I can say is what the evidence permits me to affirmatively find and that is what I said earlier.
18. What the evidence does reveal is that you were prepared to perform that important role in the importation and supply chain of a significant quantity of ephedrine, a precursor chemical. It is clear that those involved in the venture stood to derive substantial profit as the figures that I have already quoted indicate.
19. In the course of his helpful plea submissions, Mr Mandy submitted that the importation of drugs by post is an offence of immaturity and that older and wiser heads would reflect on taking that course. Although the plea submissions were generally helpful, I disagree with that proposition. Importation of drugs or precursor chemicals by express parcel delivery is all too commonly seen in these courts and it is common knowledge that the balance the authorities seek to achieve between the cost and time of scanning items being brought into the country in order to detect illicit drugs and allowing an easy and timely flow of legitimate goods imported by legitimate businesses, means that not all, indeed not even a majority of imported goods, are subjected to screening. The drugs were concealed in a sophisticated way in the parcel. The ephedrine was in a plastic sheath which fitted into and was stitched into the belt, along its whole length. This had been done for a total of 118 belts. All of them had ephedrine packaged in the plastic sheaths, stitched into the belts in that way.
20. This is not an indicator of immaturity but it is an indicator of the size and sophistication of the overall operation in which you played a part.
21. It is clear from the WeChat messages that you sent to Mr Yu immediately after it was discovered that the parcel was with customs for inspection, that you knew that the ephedrine was a precursor chemical because you described it as white raw materials. I do not accept that, as Mr Mandy submitted, it was not open to find that you had any knowledge of an intention to use the ephedrine to make methylamphetamine. What you said in that WeChat exchange indicates that you had a clear awareness that ephedrine or that the substance in the belts was raw material for making a drug.
22. In R v Carey [1998] 4 VR 13 at 17, Winneke P made it clear that those who engage in the illicit drug trade, no matter what their status in the enterprise is, must expect heavy sentences in which general deterrence will be the principal purpose of punishment. That is not just because importation of prohibited substances is a criminal offence. Illicit drugs cause great harm to the community, to those reckless or vulnerable enough to use and become addicted to them, to the victims of the crimes that they commit whilst under the influence of drugs or in order to obtain money to purchase more, to the families of the addicts whose lives are changed and often harmed significantly by reason of their substance abuse and to those who, for the lure of enormous profit, engage in such activity. Importations are also often difficult to detect, which again points to the need to impose a sentence that will deter those who think that it may be worth taking the gamble, by reason of the lure of the profit that could be derived.
23. Although I can draw no conclusions as to the actual dollar amount that you stood to gain once the ephedrine had been delivered, the inescapable inference is that you did this for gain. That too therefore bears on your moral culpability and the weight to be given to deterrence, not only general but specific and the weight to be given to denunciation and just punishment.
24. Before dealing with matters personal to you which would mitigate the sentence otherwise appropriate, I note that you are not entitled to any reduction in the sentence that would flow had you pleaded guilty to the charge. You were convicted by a jury. You are not to be punished, of course, for exercising your right to plead not guilty, but you do not, as a result, get any benefit of a reduced sentence by reason of a saving of the time and cost of trial, of advancing the interests of justice or indicating remorse.
25. Turning then to matters personal to you. You are a young offender. You were only 20 at the time of the importation. You are now 23 years of age.
26. You have no previous convictions. That is, up to the age of 20, at the time of the commission of this offence, you had not been charged with or convicted of any other offence. That is a matter proper to take into account in your favour but I note also it is a feature that may well have borne on the question of your suitability to perform this role. A person without convictions, that is somebody who has not previously come to the attention of the police, is a more desirable candidate for playing a role such as the one you played in facilitating the movement of substantial quantities of precursor chemicals along the supply chain.
27. You have had this matter hanging over your head unresolved for nearly three years. That in itself, I accept, has been a burden for you. You have been on bail until the verdict and, in the time between the commission of the offence and your conviction by the jury, you have not been charged with or convicted of any other offending and I understand there is nothing pending between the time of the verdict and today. You have been in steady employment since being charged as a plasterer and later as a cook. Engaging in steady employment post-offence, the absence of previous convictions and of any subsequent offending are all significant matters to take into account in your favour when assessing your prospects for rehabilitation.
28. You have been in a stable relationship since before the commission of this offence. I am told that your wife is standing by you and is supportive of you. Although the relationship with her did not stop you from being involved in this offending, I treat the continuing support from your wife and the prospect of her support whilst in custody and on your release, again, as a positive factor counting in your favour when assessing your prospects for rehabilitation.
29. A large bundle of testimonials was tendered on the plea hearing. They speak of a well-liked, kind, generous, supportive, respectful, hardworking, diligent and caring young man, with a wide circle of friends. The writers expressed shock at the discovery that you had been involved in this activity. They all expressed the view it is out of character.
30. You are a man, it would appear, of average intelligence. You were born in China and completed your primary schooling there. You were brought to Australia at the age of 13. Despite cultural and language differences, you successfully completed secondary schooling in Australia and then enrolled in and commenced a commerce degree at Deakin University in 2015.
31. For reasons I will detail shortly, you did not complete that course. Since being charged, as I have noted, you have undertaken and maintained full-time work. You clearly have employable skills and have demonstrated a capacity to work and to hold down stable employment. These matters too count in your favour when assessing your prospects for rehabilitation.
32. Your studies were interrupted by a serious life-threatening attack. At the age of 17 or 18, in your first year of university, whilst working at the fish and chip shop where you had been working part-time for some years, you were stabbed in the chest. The assailant was a work colleague who you had thought of as a friend. He suddenly pulled a knife on you and stabbed you for no apparent reason, apart from apparently a minor rebuke about his working too slowly or making mistakes.
33. You spent six days in hospital, three of those in intensive care. You underwent major chest surgery. You will wear the obvious physical scar of the stabbing on your chest for the rest of your life. That troubles you and, although you were not at fault in this attack, you feel shamed by it and the scar that you bear as a result. Recovery from the physical effects of the stabbing were slow and so too was recovery from the emotional and psychological effects of it. I was provided with your police statement and your victim impact statement both made shortly after the stabbing. They provide eloquent, contemporaneous accounts of the attack itself and of the significant impact on your physical and emotional wellbeing in the immediate aftermath.
34. You described in your victim impact statement the pain, fear and distress experienced by you in the immediate aftermath, as you came to understand what had happened to you and how close you had been to death. And, significantly for these purposes, you described a change in your sense of safety, your view of the world and how you related to people around you.
35. I was also provided on the plea with a psychological report from the psychologist Luke Armstrong. He assessed you after the jury verdict for the purposes of this plea. The account you gave him is consistent with the accounts in your witness statement and victim impact statement.
36. As the report of Mr Armstrong describes, the feelings that you had identified and articulated in your witness statement and victim impact statement persisted and you reported to Mr Armstrong that you became isolated from your friends and fearful of the world around you.
37. You found yourself unable to return to university for the balance of the 2015 academic year. You tried to return in 2016, but found it too difficult because of the memories of the attack and you withdrew from your course after a short time. It would appear from Mr Armstrong’s report that, following the assault in 2016, you were suffering significant post-traumatic stress disorder symptoms. You did not, however, seek treatment and it would appear no assistance was offered to you.
38. In 2016, you took a part-time position working in a 7/11 convenience store and, in the middle of that year, you were the victim of a second life-threatening event: an armed robbery at the 7/11. Again, it would appear you did not seek and were not offered any support or assistance for the obvious fear and distress that follows from such an event and, although your relationship with your partner continued, you became isolated from your old friends following these events.
39. It was in this context I was told that you became involved in online gaming. You spent a considerable time in 2015 and 2016 at internet cafes gaming and that is where you apparently met Mr Yu. It was at the end of 2016 that you committed this offence.
40. Since being charged, you appear to have re-engaged with old friends, engaged in skilled and meaningful work and demonstrated a capacity to hold down a job and work full-time. It would appear that, in the period after being charged and coming up to the time of trial, your post-traumatic stress disorder symptoms appeared to have abated or become sufficiently manageable for you to engage in the sort of work that you have been doing.
41. Many of the friends who wrote testimonials expressed shock at the discovery that you had been stabbed. It would appear that you did not tell most of those people who you maintained contact with in 2015 and 2016 and those others that you lost contact with were equally ignorant of what had happened. But the testimonial writers speak, after your being charged, of a successful re-engagement by you with your friends and a gradual return to your old self, the person I described at the start.
42. I accept the evidence therefore that this offence occurred at a time when you were suffering the consequences of two serious life-threatening incidents, that you had become isolated from old friends and that those you kept contact with were, by and large, ignorant of what had happened to you and the impact it had on you. Although I do not accept there is any causal connection between the post-traumatic stress disorder symptoms which you were experiencing in the aftermath of the stabbing which would enliven any of the first four limbs in Verdins[1] (and I note that is a matter Mr Mandy ultimately conceded), I accept that your youth, these two significant life-threatening events and your subsequent isolation or withdrawal from your social circle do provide a context to explain the circumstances prevailing in your life at the time and the contrast between that unsettling period in your life and the more stable and supported life that you appear to have lived before that and resumed since being charged.
[1]R v Verdins; Buckley; Vo (2007) 16 VR 269.
43. You have been in custody since the jury verdict. I accept that your time in custody has been more burdensome for you by reason of a return of your post-traumatic stress symptoms caused by being in custody, being in a prison milieu and mixing with other prisoners. I accept Mr Armstrong’s assessment that imprisonment has triggered in you symptoms of fear, hypervigilance, stress and anxiety that relate back to the stabbing and the robbery and that those symptoms are themselves compounded by the conditions of incarceration and the nature of the prison population. It is not surprising that you feel vulnerable. It is your first time in prison and many of the people you are now mixing with are people who have committed the very sort of offences that you were subjected to. I accept that your time in custody will continue to be more burdensome for you by reason of that history and the exacerbation or the re-enlivening of the post-traumatic stress disorder symptoms and therefore that the fifth and sixth limbs of Verdins are properly invoked.
44. I therefore take that into account and, accepting that imprisonment will be more onerous for you by reason of that, reduce the sentence which would otherwise be appropriate.
45. There are other relevant factors which also would appear to add to the burden of imprisonment. Your account of your childhood and upbringing: parental separation when you were very young, being brought up in China by your paternal grandparents up to the age of 13, an absentee father who worked overseas, an absent mother, relocation to Australia at the age of 13 with your father, his new wife and cousins or stepsiblings with whom you had previously had little contact and a somewhat emotionally detached or remote relationship with your father after your arrival in Australia, led Mr Armstrong to conclude that, whilst materially your needs had been attended to, your developmental experience was one of emotional neglect and deprivation. He said that, consistent with familial neglect, you presented with features of a dependent personality style. Although you do not fulfil the criteria for a personality disorder, he says your dependent personality style will make imprisonment more burdensome. Again I take that into account as operating to reduce the sentence otherwise appropriate.
46. I also take into account and give significant weight to your youth at the time of the offending and now. You are entitled, in my view, by reason of your youth, the absence of previous convictions and the good use you have made of your time since being charged, to have the sentence structured so as to maximise and encourage your prospects of rehabilitation and to therefore give greater weight to your prospects for rehabilitation to balance against what I had said earlier about the general need to give predominance or paramountcy to general deterrence.
47. Mr Mandy submitted that, notwithstanding the quality of ephedrine, that is of a commercial quantity, the appropriate sentencing outcome was a sentence which would allow for your release on a recognizance release order. That requires the imposition of a head sentence of less than 3 years' imprisonment.
48. Mr Saunders for the prosecution submitted that such a sentence was outside the range. I was provided with a schedule setting out some comparable sentences for what were said to be offences with some similarities or offenders with some similarities to your circumstances.
49. Each case of course is to be determined on its own facts and circumstances, and no two cases are directly comparable. Save to say that the schedule showed that some offenders, in circumstances with some similarity to yours, were released on sentences of a duration that allowed release on a recognizance release order while others were sentenced to a term of imprisonment greater than three years and had a non-parole period fixed. That range of sentencing does no more than show that cases with some similarities and some differences provide a series of yardsticks which, like the maximum sentence itself, are of assistance in determining, in your case and in the circumstances of this offending, the appropriate sentence in the circumstances.
50. I have come to the view that, notwithstanding your youth, your previous and subsequent good character and those positive matters counting in your favour, the seriousness of the offence, the quantity of ephedrine, your role in it as I have described and the circumstances of the offending generally, all point to the need to impose a sentence which would be greater than one which would allow your release on a recognizance release order. Indeed, I am of the view that to impose a sentence which would allow your release on a recognizance release order, after serving some part of it, would be outside the range of appropriate sentences. It would lead me to fall into sentencing error were I to do so.
51. Having said that, it is clear in my view that there should be a considerable gap between the head sentence and the non-parole period, to reflect your youth and to encourage those positive prospects for rehabilitation that I have identified and to take into account those Verdins-related matters that make imprisonment more burdensome for you. Could you now please stand.
52. Douglas Hong Yun Zhou, on the charge of importation of a commercial quantity of ephedrine of which the jury found you guilty, you are convicted. You are sentenced to be imprisoned for a period of 5 years and I fix the period of 2 years and 6 months as the time that you must serve before being eligible for parole. That sentence is to commence today. I declare that you have spent 107 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
53. Does the way I pronounce the order reflect what I said I intended to?
54. MR SAUNDERS: Yes, your Honour.
55. MR MANDY: Yes, your Honour.
56. HER HONOUR: Correct in accordance with Commonwealth law?
57. MR SAUNDERS: It does.
58. HER HONOUR: Sufficient explanation in terms of Commonwealth law?
59. MR SAUNDERS: It is, your Honour.
60. HER HONOUR: Are any further orders required to be made?
61. MR SAUNDERS: Not from this point of view, thank you.
62. MR MANDY: No, your Honour.
63. HER HONOUR: All right, thank you. Thank you, can you remove Mr Zhou please?
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