Guang Chen v The Queen

[2015] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0151

GUANG CHEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2015
DATE OF JUDGMENT:	16 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 253
JUDGMENT APPEALED FROM:	DPP v Chen (Unreported, County Court of Victoria, Judge Ryan, 13 June 2014)

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CRIMINAL LAW – Sentence – Appeal – Attempting to traffick in a commercial quantity of a drug of dependence – Trafficking in a commercial quantity of a drug of dependence – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years and 6 months – Significant mitigatory factors – Whether sentence manifestly excessive – Sentence outside the permissible range – Appellant resentenced to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Vassis & Co
For the Crown	Mr K Brekweg	Director of Public Prosecutions (Cth)

PRIEST JA

BEACH JA:

Introduction

1. On 26 May 2014, following a trial in the County Court, the appellant was convicted of one charge of attempting to traffick a drug of dependence in not less than a commercial quantity, and one charge of trafficking a drug of dependence in not less than a commercial quantity.  The drug involved was pseudoephedrine.  Following a plea hearing, the appellant was sentenced on 13 June 2014 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to traffick in a commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA]	25 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA]	7 years	Base
2	Traffick in a commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AA]	25 years	5 years	2 years
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		6 years and 6 months’ imprisonment
Pre-sentence Detention Declared:		18 days
Other orders: Nil.

1. On 5 November 2014, Priest JA granted the appellant leave to appeal against his sentence on the following grounds:

1.The individual sentences of imprisonment imposed on both Charge 1 and Charge 2 are, in all the circumstances of the case, manifestly excessive.

2.The Total Effective Sentence (namely, 9 years’ imprisonment) is, in all the circumstances of the case, manifestly excessive.

Circumstances of the offending

1. The circumstances of charge 1 were as follows.  On 9 May 2011, Customs intercepted a parcel from China, addressed to ‘Tao Tang’, to be delivered to an address in Footscray.  The parcel contained 32 utensils wrapped in bubble-wrap.  Hidden inside the handles of each utensil was ContacNT, a pseudoephedrine-based medicine in the form of pink and yellow granules.  Customs removed the granules from the handles, and repacked the parcel, for the purpose of a ‘managed delivery’.

1. The removed granules weighed 1,673.7 grams and, at approximately 32.5 per cent purity, the granules contained approximately 540 grams of pure pseudoephedrine.  This quantity of pseudoephedrine was said on the plea to be worth between $47,500 and $95,000.

1. On 16 May 2011, a ‘managed delivery’ took place and the package was delivered to the Footscray address.  The parcel was handed to Tao Tang and taken inside.  That evening, the appellant went to that address and collected the parcel and a second parcel which, when later seized by Customs officers, was found to contain traces of pseudoephedrine.

1. The circumstances of charge 2 were as follows.  On 25 May 2011, a search warrant was executed by Customs and police officers at shop premises occupied by the appellant.  In the course of that search, officers found blister pack sachets containing 2,720 capsules of pink and yellow granules which, upon analysis, were found to contain 193.4 grams of pure pseudoephedrine.  This quantity of pseudoephedrine was said on the plea to be worth between $13,600 and $68,000.

Appellant’s background

1. The appellant was 54 years of age at the time of sentencing.  He had no prior convictions and, in the three years subsequent to his arrest in May 2011, had not committed any further offences.

1. The appellant was born in China, completed primary and secondary school there, and studied at a tertiary level.  He was a food bureau manager in China, prior to coming to Australia in January 1990, at the age of 29.  The appellant’s wife and children came to Australia in 1995.  In Australia, the appellant worked at various factory jobs until he had saved enough money to buy a takeaway business that he operated in Werribee at the time of his offending.

1. Since his arrest, the appellant has suffered from reactive anxiety and depression.  He has been treated with antidepressant medication as well as psychological counselling. 

Reasons for sentence

1. In his reasons for sentence, the judge expressly noted that there had been a three year delay from when the appellant was charged until the completion of his trial, and that the appellant had suffered depression and anxiety as a reaction to the predicament he faced.[1]  Additionally, the judge accepted that the appellant had very limited English, and that this would impact adversely upon him in custody.  As the judge put it:

It will make your day to day life in prison more difficult than had you been an English speaker and this will include dealing with medical personnel concerning your current psychological issues.[2]

[1]DPP v Chen (Unreported, County Court of Victoria, Judge Ryan, 13 June 2014) (‘Reasons’) [29].

[2]Ibid.

1. In sentencing the appellant, the judge said that general deterrence was a significant sentencing factor, and that the appellant’s prior good character ‘must take a back seat’ when weighing the relevant sentencing factors.[3]  As to specific deterrence, the judge said that this was relevant ‘but only in a limited way’.[4]  The judge also said that the appellant’s conduct had to be denounced and the appellant punished.[5]

   [3]Ibid [28].

   [4]Ibid [46].

   [5]Ibid.

Submissions of the parties

1. In submitting that the sentence was manifestly excessive, counsel for the appellant relied on several factors.  First, the appellant fell to be sentenced as a first offender.  Secondly, there had been considerable delay in finalising the appellant’s matter.  Thirdly, due to the appellant’s psychological condition, and his limited command of English, the burden of imprisonment would weigh more heavily on him than on others.  Fourthly, the sentencing judge had determined that only limited weight needed to be afforded to specific deterrence.  Fifthly, the two offences were related and similar in nature, so that the principle of totality was required to be given greater weight than it was in fact given by the judge.

1. Counsel for the respondent conceded before this Court that the sentence imposed by the judge was a stern one.  However, counsel for the respondent noted that the appellant’s offending was not mitigated by pleas of guilty, remorse or co-operation.  Further, it was submitted that there was no evidence that the offences were motivated by anything other than greed.  The amount of pseudoephedrine involved was more than five times the commercial quantity threshold in respect of charge 1, and almost twice the commercial quantity threshold in respect of charge 2.  Additionally, the respondent submitted that the judge had in fact taken into account all of the matters personal to the appellant and now relied upon by him.

Analysis

1. The appellant fell to be sentenced as a first offender of mature years.  It is, as Priest JA noted when granting leave, an unhappy fact that the charges against the appellant took three years to resolve.  Further, while the appellant did not plead guilty, as the sentencing judge noted, during the course of the plea hearing, credit had to be given to the appellant for making admissions that ‘shortened the appellant’s trial considerably’.  Additionally, and again as the sentencing judge noted during the course of the plea, the value of the drugs involved was, in relative terms, not great, when considering offending of this kind. 

1. As has been said many times before, questions of manifest excess do not permit of great argument.  Having examined all of the relevant matters for ourselves, we have come to the conclusion that the total effective sentence and non-parole period in this case were outside the permissible range.  While statistics can never be determinative of whether a given sentence is within the permissible range, the sentence on charge 1 was the equal highest sentence imposed (after adjusting for appeals) for trafficking in a commercial quantity of drugs between 2008–09 and 2012–13.[6]  The present case was, with respect, simply not one that required such a high sentence.

   [6]Sentencing Advisory Council Snapshot 162:  Sentencing Trends for Trafficking in a Commercial Quantity of Drugs in the Higher Courts of Victoria, 2008–09 to 2012–13.

1. We would re-sentence the appellant to a term of imprisonment of 5 years on charge 1 and a term of imprisonment of 2 years on charge 2.  We would cumulate 1 year of the sentence on charge 2 with charge 1 making a total effective sentence of 6 years’ imprisonment.  We would fix a non-parole period of 4 years.

Conclusion

1. The appeal will be allowed, and the appellant re-sentenced as we have foreshadowed.

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