DPP v Xiao
[2021] VCC 2018
•3 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-02330
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PEIWEN XIAO |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2021 | |
DATE OF SENTENCE: | 3 December 2021 | |
CASE MAY BE CITED AS: | DPP v Xiao | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2018 | |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: Pleaded guilty to 1 charge trafficking in large commercial quantity -ephedrine, 1 charge trafficking in commercial quantity - methylamphetamine, 1 charge trafficking in a drug of dependence cocaine - drug dealings with covert operative over 5 month period – 30 year old at time of offending – distant relationship with parents – no criminal history – isolated in prison - facing inevitable deportation to China - parity with 3 co-offenders – serious drug offender
Cases cited: Verdins v R [2007] VSCA 102
Sentence: 8 years 3 months imprisonment 5 years 3 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Regan | OPP |
| For the Accused | Mr J Saunders Mr J Valos (at sentence) | Valos Black |
HER HONOUR:
1Peiwen Xiao, you have pleaded guilty to three charges as follows:
· Charge 1, trafficking in a large commercial quantity of a drug of dependence, namely, ephedrine, the quantity being 2959.247 grams.
· Charge 2, trafficking in a commercial quantity of a drug of dependence, namely, methylamphetamine, the quantity being 1061.10 grams.
· Charge 3, trafficking in a drug of dependence, namely, cocaine, the quantity being 154.5 grams.
Background
2A drug investigation in 2017 identified you as a person who openly stated that you were involved in large scale trafficking to men you thought were criminal associates, but who were in fact undercover police. It was arranged that a covert operative known as “Sammy” would be your principal point of contact. Through intercepted phone calls and text messages, the police obtained details of your involvement. Your two principal associates were Xiao Guan with whom you collaborated in trafficking ephedrine and methylamphetamine and Nick Jiang with whom you trafficked methylamphetamine and cocaine. A fourth person Jack Wi Heng was the principal supplier of ephedrine to you via Guan. I sentenced Heng and Jiang in May 2020 and Guan in September 2020[1].
[1] Heng was sentenced to 10 years and 8 months’ imprisonment, with a non parole period of 6 years; Jiang was sentenced to 6 years and 8 months’ imprisonment, with a non parole period of 4 years and 6 months; Guan was sentenced to 7 years and 6 months’ imprisonment, with a non parole period of 5 years.
3By your plea you have admitted to trafficking 2949.25 grams of ephedrine to police covert operative on four occasions between 5 June and 21 November 2018, being 3.94 times the large commercial threshold quantity. Indeed, the first and last of these transactions exceeded the large commercial quantity. You also admitted to having trafficked 1061.1 grams of methylamphetamine mixture to either a covert operative or other customers between the same dates, being 4.24 times the commercial quantity threshold.
4Although the total amount of methylamphetamine trafficked was over the threshold limit for large commercial quantity, that is, 750 grams, the prosecution has acknowledged that there is no evidence of your intention to traffic the drug in that amount and so you are charged with trafficking in the commercial quantity. Finally, you have admitted to trafficking 154.5 grams of cocaine mix to customers between 16 August and 21 November 2018, being 51.5 times the traffickable threshold quantity of three grams.
Details of the offending
Charge 1 – Ephedrine trafficking
5Covert Operative “Sammy” had established a link with you in August 2017. You agreed to supply drugs but nothing was heard from you for some months. The police operation did not become resourced until May 2018, at the time when you contacted “Sammy” and asked to meet him. At a meeting on 5 June, you gave “Sammy” some samples of methylamphetamine and ephedrine. You told him you would sell him ephedrine in one kilogram quantities for $32,000 a kilogram at 85% purity. In August, “Sammy” contacted you, resulting in the meeting and further discussions. The three resulting transactions and one agreement which never eventuated are set out in the table [2], showing Guan provided the ephedrine on three occasions, two of which involved Heng as the initial supplier.
[2] page 8 of the prosecution summary, Exhibit A
6Transaction 1 took place on 3 September with you and Guan supplying a kilogram of ephedrine to “Sammy” in exchange for $35,000 cash. The drug was analysed and found to be pure quantity of 800.847 grams. The drug had been supplied to Guan by Heng. In the following days, you and Guan discussed your ongoing trafficking and you made further arrangements with “Sammy” to supply more ephedrine.
7
Transaction 2 was on 24 September when you met “Sammy” and supplied
500 grams of ephedrine in exchange for $13,000 cash. The drug was analysed and was found to be 346.34 grams pure weight.
8Transaction 3 was on 16 October. “Sammy” asked you for another kilogram of ephedrine and you called Guan to arrange this. Guan met with “Sammy” in the city and handed him a bag containing one kilogram of ephedrine in exchange for $35,000 cash. The drug was analysed and it was found to be 516.41 grams pure weight.
9The low purity of the drugs was the subject of discussions between you and “Sammy” over the following month or so. Eventually, on 19 November, “Sammy” ordered two kilograms of ephedrine for $60,000. This led to Transaction 4 which commenced on 21 November and ended in your arrest. You had arranged for Guan to bring the drug to a meeting place in the city. Before the meeting took place, you were arrested with 25.5 grams of ephedrine in your possession. Shortly afterwards, Guan was arrested as he drove to the proposed meeting place at Victor Harbor. Police found bags of the substance in the car which was later found to be 1295.65 grams of pure ephedrine.
10As a result of these transactions, you were found to have trafficked a total of 2959.247 grams of ephedrine. Guan trafficked 2621.494 grams and Heng's involvement shows that he trafficked 1650 grams of ephedrine.
Charge 2 - Methylamphetamine
11Charge 2 deals with five instances of you selling methylamphetamine directly to “Sammy” and two further instances when you arranged for Guan to do so. These seven instances between 8 August and 13 November 2018, resulted in the trafficking of 357.7 grams of the drug. They are set out in Table 2 in the prosecution summary.
12Guan pleaded guilty to the two instances of trafficking on 15 and 23 August, compared with the five instances of your involvement, all set out in Table 2. The transactions in August involved you and Guan discussing the sourcing of the drug and its supply to “Sammy” and the role of Jiang in the supply. The prosecution relies on this evidence to indicate the similarity of your role and that of Guan. The telephone intercepts in September, October and November disclosed this continuing relationship.
13At about the same time, there were 19 telephone intercepts between you and Jiang when you made 12 agreements of transactions to jointly traffick a total of 673 grams of methylamphetamine mix to third parties. This is set out in Table 3. Guan was not involved in these agreements to sell or transactions.
14When you were arrested you had 25.5 grams in your pocket and 4.9 grams in your car. These three groups amount to 1061.1 grams. Although that exceeds the large commercial quantity threshold, the charge was resolved to one of commercial quantity because, as I said earlier, the prosecution had no evidence to establish you intended to traffick a large commercial quantity over this period.
Charge 3 – Cocaine trafficking to 3rd parties
15I now come to Charge 3. There were seven instances of trafficking cocaine during 12 telephone intercepts, involving agreements to sell or transactions agreed to between you and Jiang on two occasions, to which you and Jiang have now pleaded guilty. There were also five other occasions involving others. The total quantity of cocaine trafficked by you was 154.5 grams of which 56 grams was supplied by Jiang.
Your interview
16When interviewed by the police, you made some admissions but denied drug trafficking and denied knowing Jack Heng. You admitted doing some delivering and when asked if you had agreed to sell two kilos of drugs to “Sammy” that day, you denied it, saying it was organised by someone else.
Objective gravity of offending
17The gravity of your offending is to be assessed not only objectively but also in relation to the co-accused. This is in order for the principle of parity in sentencing to be taken into account and it is convenient to consider it at this stage in these remarks. It need hardly be said that the offending was very serious. It took place over some five months and involved large amounts of two types of illicit drugs and smaller amounts of cocaine. It was part of an operation involving others and using relatively sophisticated methods.
18
The prosecution submission is that your role was greater than that of Guan, with whom your involvement has the greatest similarity. For example, on
24 September, you trafficked 346 grams to “Sammy” and there was no evidence that Guan was involved. You were said to have been coordinating the trafficking operation with Guan acting at your direction and that this is the main distinction between the two of you.
19In so far as ephedrine was concerned, it is said by the prosecution that you were operating at a higher level than Guan. I am satisfied that this is borne out by the evidence but the difference is slight. It follows that you should be sentenced similarly to Guan but to a slightly higher sentence in respect of Charge 1. It is also put by the prosecution that you were trafficking separately with Jiang without Guan. Table 3 sets this out. This is a distinct point of differentiation relevant to objective seriousness and parity.
20Mr Saunders submitted on your behalf that you and Guan had similar roles, despite the differences in transactions and he also conceded that parity is not exact. He submitted that your role and that of Guan were the same in respect of the trafficking in methylamphetamine, despite small differences. Mr Saunders characterised your role as being at the bottom of a pyramid with Guan, as a facilitator relying on Jiang to supply the drugs. However, it can be discerned from Table 2, which sets out the methylamphetamine sales, that you asked Guan to contact Jiang regarding supply and price but you gave directions for Guan to follow.
21My conclusion is that while your role in relation to Charges 1 and 2 was slightly higher than that of Guan and you trafficked a slightly greater amount of drug, the difference has only a slight bearing on parity which can rarely be defined precisely.
Personal background and circumstances
22Turning now to your personal background and circumstances. You are now aged 34 and you were aged 30 at the beginning of the offending period. You were born in China, the only child of parents who did well materially from their origins in poverty stricken families. Because of their focus on their work, you were raised by your grandparents, all of whom had died by the time you were aged about 13. You had a distant relationship with your parents who had little experience in caring for you. You were sent to a boarding school where you were severely bullied and your academic progress declined. You were withdrawn from that school and after some further attempts at education, your parents sent you to Australia to attend university.
23You left university after one semester and enrolled in a mechanics course. You completed this course and worked for four years in a workshop where your working visa was sponsored. You began a course in management at TAFE, financially supported by your parents and you planned to open your own garage and bring your parents here to live with you. Meanwhile, you met your wife while studying. Together, you have two children aged seven and four. The younger child was born while you were in custody and you have been unable to meet her in person. Your wife left Australia and went to live in Malaysia for support from her parents and because of COVID restrictions she had been unable to return here to visit you. Your wife knows about your situation and you have maintained contact through Zoom calls. She supports you but you believe your actions have irreparably damaged the relationship and your wife has said she is uncertain as to whether she wants the marriage to continue.
24In 2017 your parents fell on hard times in that their business was defrauded and they were facing civil proceedings, resulting in a large debt. This brought to an end your dependence on them financially, causing you stress and anxiety both for their welfare and that of you and your family. At this time, your wife was in Malaysia and you had been sending her money with your parents also needing financial help from you.
25You started using cocaine as self-medication and you were gambling which led to an accumulated substantial debt. You began abusing alcohol as well. You became depressed and realised that your friends were avoiding you but you have acknowledged that you were in a state of denial about your problems. You recently saw the psychologist Ms Carla Ferrari who provided a report in which she set out your circumstances. You told her that you are remorseful and regret the impact of your actions on others. She thought you displayed good insight and judgement into your mental health problems and their link to your offending. She concluded that you were suffering from an adjustment disorder at the time related to your early childhood experiences of attachment difficulties and sense of abandonment owing to your parents' absence from your life.
26She stated that there is potential for this disorder to develop into a major depressive episode if the symptoms do not abate[3].
[3] Report of Carla Ferrari dated 17 Nov 2021 at [71]
27Ms Ferrari thought your criminal behaviour can be partly attributed to your untreated psychological conditions at the time in the context of, and here I quote from her report:
'… significant overwhelm and distress which caused mood disturbance and impacted [your] decision making and judgment….'[4]
[4] Ibid [82]
28At the time, you had no previous history of criminal behaviour or illicit substance use and no association with antisocial peers. Ms Ferrari described your offending as a marked deviation from your usual pro-social character[5].
[5] loc cit
29For these reasons, she regarded your risk of reoffending as low and she noted your motivation to abstain from illicit substances, to address the existing family problems and to return to working as a mechanic. She noted your shame and disappointment in having let your family down, knowing you will be deported to China. Your depression and anxiety symptoms remain in the severe range and you do not have access to adequate treatment, other than pharmacologically.
30You have written a letter to the court in which you explain the background of the last few years and said you were deeply remorseful. Your mother has written a letter on behalf of herself and your father, describing their sadness at your situation and confirming your regret and shame. Your friend Ms San, who lives in Melbourne and is also a friend of your wife's, knows you well and has high regard for you, despite your offending, which she sees as bad decision making. She is aware of your shame and remorse.
Mitigating circumstances
31The opinion offered by Ms Ferrari form the basis for several powerful mitigating circumstances which I take into account.
32Your remorse and shame are important indicators of your good prospects for rehabilitation, together with your motivation to change. Your plea of guilty is also important because, although it was not early in time, it was at the first available opportunity, taking into account the final form of the indictment.
33The plea is of great value at this time of the COVID-19 pandemic. The court has a very serious backlog of trials and your plea helps to alleviate that. It has also avoided a potentially complex trial with significant saving of time and expense. The discount on your sentence should reflect those matters. The fact that you have no prior convictions also indicates a reduced risk of recidivism and underscores reliance on your former pro-social behaviour.
34The state of your mental health at the time of your offending does not enliven the principles in the decision of Verdins v R[6] but it does provide a partial explanation for your decisions and actions and somewhat reduces your moral culpability.
[6] Verdins v R [2007] VSCA 102
35You have been in custody for just over three years and that experience has already been burdensome for you, as it would be for most prisoners. But you have been and will continue to be without visits from your family and facing inevitable deportation. In the meantime, your parents are in somewhat poor health and you still have been unable to meet your four-year-old child. Your mental health remains at risk of deterioration.
36
To that extent the burden of imprisonment does enliven limbs 5 and 6 of the Verdins principles and I take them into account. I also take into account that
two-thirds of your time in remand has been spent during the pandemic environment, with limitations on time spent outside your cell and on available courses and programs. There is no foreseeable end to this at the moment. The pandemic has also contributed to the delay in hearing this plea, with much of your time experiencing the prospect of serious charges hanging over your head. Your imprisonment will also continue to be more burdensome because of the anguish in knowing you will be deported to China and will lose the opportunity to settle here.
37As already indicated, I take into account the issue of parity with your co-offenders, all of whom I have previously sentenced. As I have also said, your role is similar to that of Guan but with some differences.
Other sentencing considerations
38The maximum penalty for trafficking in a large commercial quantity is life imprisonment. That charge is subject to the standard sentencing provisions of the Sentencing Act and the standard sentence for this charge is 16 years. For trafficking in a commercial quantity, the maximum penalty is 25 year and for trafficking simpliciter it is 15 years.
39The serious offender provisions of the Act require that in relation to Charges 1 and 2 I declare you to be a serious drug offender. This brings into play s6D and 6E of the Sentencing Act but the prosecution does not seek a disproportionate sentence and I shall address orders for cumulation shortly.
40In making orders for a modest amount of cumulation, I have had regard to the principle of totality. You committed all the offending over the same period of about five months, which was also at a time when you were addicted to cocaine.
41Mr Xiao, I sentence you to the following terms of imprisonment:
42For Charge 1, six years and nine months.
43For Charge 2, four years and six months
44For Charge 3, two years.
45The sentence for Charge 1 is the base sentence. I order that one year of the sentence for Charge 2 and six months of the sentence for Charge 3 be served in cumulation upon the base sentence. That results in a total affective sentence of eight years and three months. I fix a period of five years and three months which you must serve before being eligible for parole.
46You have been in custody for 1108 days of pre-sentence detention which I declare as already served and I shall note it on the court record. And I think that translates to three years and 13 days, but I may be corrected there.
47
If you had pleaded not guilty to these charges, I would have sentenced you to
10 years and six months imprisonment with a non-parole period of eight years.
48The prosecution seeks a number of ancillary orders. They are orders for forfeiture and disposal and a pecuniary penalty order.
49
HER HONOUR: I'll come back to you in a moment to see if there's consent to any of those orders. First of all, can I come to the serious offender provisions. Are they correct,
Mr Regan?
50MR REGAN: Yes, Charge 2. Yes, it's the provisions Charge 1, conviction makes 2 and 3 liable to the serious offender provisions.
51HER HONOUR: Yes, all right. So it's Charge 2 and 3, thank you.
52MR REGAN: Or Charge 2. Charge 2 is irrelevant since they're commercial.
53HER HONOUR: All right. Now, the presentence detention, is that correct?
54MR REGAN: 1108, Your Honour. Yes, that's what we've got too.
55HER HONOUR: That's agreed, all right, thank you. And, Mr Valos, is there consent to the forfeiture and disposal orders?
56MR VALOS: Yes, Your Honour.
57HER HONOUR: Thank you. And, Mr Regan, I think a pecuniary penalty order usually comes from the prosecution for signature. Is that correct?
58MR REGAN: Yes, Your Honour.
59HER HONOUR: Yes.
60MR REGAN: Yes, there should be one available.
61HER HONOUR: All right, I'll have a look. If there isn't one, my associate will let you know.
62MR REGAN: Thank you, Your Honour.
63HER HONOUR: Now, are there any other matters?
64MR REGAN: Not so far as the prosecution is concerned, Your Honour.
65HER HONOUR: Thank you. Mr Valos, anything else?
66MR VALOS: No, thank you, Your Honour.
67HER HONOUR: All right. Thank you for your assistance in this matter. I'll leave the Bench now. I'll leave the link open so if my staff need to check anything with you, they'll do that.
68MR VALOS: Thank you, Your Honour.
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