R v Chan
[2013] VCC 917
•12 June 2013 & 11 July 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02231
CR-12-02230
| THE QUEEN |
| v |
| WAN HA CHAN MAN CHUN LI |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2013 | |
DATE OF SENTENCE: | 12 June 2013 & 11 July 2013 | |
CASE MAY BE CITED AS: | R v Chan & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 917 | |
REASONS FOR SENTENCE
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Subject: Criminal law – Commonwealth offences – plea – sentence
Catchwords: Import marketable quantity of a border controlled drug – heroin – possess a marketable quantity of border controlled drug – heroin – Chinese nationals –ingestion of pellets – drug mule – couriers taking drugs – young offender – cooperation with authorities – no prior criminal convictions
Legislation Cited: s.307.2(1) of the Criminal Code Act 1995 (Cth) – s.307.9(1) of the Criminal Code Act 1995 (Cth) – s.16A(2H) of the Crimes Act 1914 (Cth)
Cases Cited:Nguyen v. R; Phommalysack v. R [2011] VSCA 32 – R v. Nguyen (2010) 205 A Crim R 106 – R v. Mills [1998] 4 VR 235
Sentence: Mr Li: total effective sentence of 6 years imprisonment with a minimum non-parole period of 3 years – Ms Chan: total effective sentence of 6 years imprisonment with a minimum non-parole period of 3 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Tran | Commonwealth Director of Public Prosecutions |
For Accused Chan For Accused Li | Mr J. Loftus Mr M. White | Victoria Legal Aid Ms K. Rolfe |
HIS HONOUR:
1 In this matter Man Chun Li and Wan Ha Chan both have pleaded guilty to matters laid under a Commonwealth Indictment. The relevant references as far as this Court is concerned are CR-12-02231 and CR-12-02230. The Commonwealth indictment was signed on 1 March 2013.
2 Mr Li was represented by Mr White, and Mr Loftus represented Ms Chan. Ms Tran was the prosecutor in the matter and also appears today.
3 The first charge of which Mr Li pleads guilty to is one of import marketable quantity of a border controlled drug, in this instance heroin, which is an offence against s.307.2(1) of the Criminal Code Act 1995 (Cth). As I say, in this instance the controlled drug was heroin. The marketable quantity or range of marketable quantity is from two grams through to 1.5 under the relevant legislation.
4 In this particular matter Mr Li had ingested 60 pellets of heroin which made up 318 grams at 63 per cent purity. When converted that makes up a nett amount of heroin of 217.2 grams, or under the old language about seven and a half ounces.
5 Mr Li at the time was aged twenty-five and Ms Chan twenty-one. Both have pleaded guilty to the second charge under the indictment, Charge 1 having occurred on 5 September 2012 when they both entered Australia from Hong Kong via plane travel, and Charge 2 occurred on 9 September 2012. This is a charge under s.307.9(1) of the Criminal Code Act 1995 (Cth), and in this instance it is possess a marketable quantity of border controlled drug. Again in this instance the matter was heroin.
6 The possession, insofar as Ms Chan was concerned, involved a gross amount of 784 grams or 147 pellets, making up a pure quantity of 539.8 grams of heroin. Mr Li had 73 pellets, making up a gross amount of 360.4 grams or 246.1 grams of pure heroin. In total that made up 220 pellets which were hidden in water containers when they were apprehended, making a total gram pure weight of 785.9.
7 On the materials in the depositions the street value of that amount of heroin, based upon a sale of $50 per cap at 15 per cent purity, is a figure of approximately $1.3 million.
8 It is not surprising given those amounts and Parliament's view as to this type of criminality that the maximum penalty imposed in regard to both of these offences is imprisonment of 25 years, a fine of $550,000, or both.
9 Exhibit A was the Prosecution Summary agreed to by all counsel as to the facts. One sometimes is stunned by the simplicity of such serious criminality, the dangerousness of the importing of this type of drug into Australia and the particular danger to the youth of Australia. The danger in regard to Charge 1, to Mr Li himself, his own health where he has ingested 60 pellets of heroin and to both of them in regard to Charge 2, and most importantly the grave risks to their liberty.
10 Their apprehension in Australia came about by way of an analysis of emails and surveillance and essentially as a result of good police work, for which, Madam Prosecutor, I would like you to extend my congratulations on behalf of the community.
11 It is quite clear that the actual importation by way of the ingestion into Mr Li's stomach of this drug was not apprehended, that is, Mr Li got into Australia without being apprehended with this drug in his stomach. He was able over the next three days to recover those drugs and then adding those to a larger quantity partake with Ms Chan in the criminality involved in Charge 2. It is not clear on the materials precisely where the additional drugs came from. It may well have been that Ms Chan was involved, however, I disregard totally any such speculation for the purpose of sentencing. The simple fact is that as against the 60 pellets that Mr Li brought into the country in his stomach, both of them were found with a total of 220 pellets when apprehended.
12 The apprehension, as I said, came about by way of good police work and the contact fortuitously that they were to make in Australia, a Mr Ly, was indeed being surveilled by the police and it was as a result of the detection, the phone calls and emails between Mr Ly and both of the prisoners that the authorities were able then to arrest them in possession of this large amount of heroin.
13 Ms Chan entered into a record of interview. While co-operative insofar as making the record of interview, she made no admissions whatsoever. Mr Li was co-operative. He made admissions in the record of interview, indicated and named others involved and indicated he was prepared to give evidence on behalf of the Crown. He also indicated that the reasoning or basis for him taking such grave personal health risks and risks as to his liberty was a question of economic reward.
14 Again it staggers one that given the commission of two crimes which warrant each a maximum penalty of twenty-five years imprisonment, Mr Li was to receive the sum of between 3,000 and 4,000 Australian dollars. The balance just does not seem correct. However, it is very easy to say that from an Australian perspective.
15 The persons preying on people such as Mr Li and Ms Chan use persons and their economic state, and I have no doubt in accepting that you would not undertake these grave risks to obtain such an amount of money unless you come from a very low economic base, and indeed it has been put to me by both counsel that such was the intent in this matter. It staggers one when you look at the youth of the people involved. Ms Chan, in particular, has only just turned twenty-one.
16 This Court sees far too often people in similar circumstances, young people economically deprived with no priors whatsoever, who, by way of economic deprivation enter into these schemes on behalf of organised criminals and criminal gangs and chains to bring drugs into Australia and traffic drugs within Australia and in circumstances where they are the ones facing grave consequences. One only has to look at the facts in this case. At all times the drugs were in the possession of both of these prisoners, certainly in regard to Charge 1 of Mr Li when he brought the drugs in, and certainly in regard to Charge 2 in regard to both of them. At no time did the intermediaries or the persons they worked for take any risk whatsoever in possessing the drugs.
17 It is noted that insofar as Ms Chan is concerned the criminal proceeds legislation has led to the sum found on her of $1,205 being claimed by the Commonwealth.
18 Both Ms Chan and Mr Li have been in custody now for two hundred and seventy-six days and in circumstances where clearly it would not be easy. Neither of them speak English, neither of them have been able to be visited by family, and indeed as I understand, given the seriousness of these offences their incarceration has been in somewhat strict conditions.
19 The role of each person played, insofar as Charge 1, clearly, as I understand the phraseology, Mr Li can be simply described as a drug mule, that is, a person carrying within him drugs on behalf of others. Both prisoners in regard to Charge 2 can simply be described as couriers taking drugs. They were about to get on a bus, seen as a more secure means of not being detected, and take that bus from Victoria through to Sydney.
20 The sentencing in regard to both matters must be done in accordance with Part 1B of the Crimes Act 1958, and in particular s.16A(2) thereof.
21 The particular factors spoken about and relevant to these sentences have been referred by counsel, and in particular I have been referred to Nguyen v. R; Phommalysack v. R [2011] VSCA 32, and also the New South Wales Court of Appeal case of R v. Nguyen (2010) 205 A Crim R 106, where the various principles relevant to sentencing in such circumstances are detailed.
22 Clearly, objectively this is a serious matter based upon its weight. Albeit both amounts are lower than half of the marketable quantity it must be pointed out that the marketable range begins at two grams. Charge 1, therefore, concerns a quantity a hundred times larger than the minimum quantity of a marketable range. Charge 2 concerns a quantity two hundred and seventy-five times the marketable quantity.
23 It is to be noted that clearly the object here was one of economic gain. The authorities point out that at whatever level a person is, a person must, because of the principles of general deterrence, when caught, expect severe punishment. The authorities are adamant that at whatever level a person is involved in offences of this sort there is a warrant for a significant sentence. The only regret that Courts have is that all too often the persons we are sentencing are persons who perform the role of mules or couriers.
24 The authorities also point out that the fact of prior good character in circumstances such as this where such persons are picked for this sort of role must have less significant than it normally has.
25 Against that, as I have already remarked, is the chilling youth of the persons who are prisoners before this Court. Neither has any priors. Both are clearly here as products of their community and as victims of poverty. Both are young and the principles relevant to the sentencing of a young person set out in R v. Mills [1998] 4 VR 235 are obviously of great importance.
26 In the plea Mr Loftus provided the Court, and I thank him for it, with substantial written submissions. He noted that insofar as Ms Chan was concerned hers was an operational role. She is not charged in regard to Charge 1, but clearly was involved in a sense of assisting Mr Li. Clearly, once in Australia she was apprehended and acted as a courier.
27 I note in particular the plea for Ms Chan in Exhibit C1, which is a letter from her mother. As Mr Loftus pointed out she has now been in prison for a period of over nine months. As I noted, such as been considerably difficult for her, she has suffered considerable anguish and guilt from the circumstances she has found herself in. She has been isolated, she has no family and it has been quite difficult for her.
28 Mr Loftus was at pains to stress the operation of the case of Mills that I have already mentioned and that such operates, albeit a full recognition of the serious role that his client has played as a courier and despite the comments as to priors by the authorities, the fact cannot be gainsaid is that she is a person before the Court without any priors whatsoever.
29 Insofar as the Crown range that was ultimately put, Mr Loftus did not essentially object to that range. However, he said that any sentence involved must be, insofar as his client, at the lower end. He submitted that there were no aggravating factors, that this was a single act as far as his client was concerned. He stressed her youth and submitted that there was no harm effected. While that is literally true, the fact is that when one understands the potential street value, it is a relevant sentencing matter to take into account, the potential harm that may have been wrought on the community had this drug got into the community.
30 Mr Loftus compared the two roles. He conceded the somewhat higher role played by his client insofar as Charge 2 is concerned, the co-operation not given by his client, which clearly has been given by Mr Li, and was of the view that balancing all of those matters and the Mills' principles, which should have greater application to his client, that essentially the sentence should be one of parity.
31 Mr White, insofar as Mr Li was concerned, spoke of his role, which I have already described. He submitted there should be no great cumulation in the circumstances. I must say I take a different view upon consideration. These are two separate and serious offences. His client has, acting as a mule, brought in a significant amount of heroin into this country. Not content with that he has then partaken, for gain, in moving a much higher quantity of drugs, of which the original quantity makes up a part, so there is clearly a need for an understanding and a comprehension of that, but he has involved himself within Australia of another very serious offence.
32 Mr White pointed out the challenging childhood undertaken, the lack of parental guidance from a very early age and the fact that Mr Li was required to leave home at a very early age. As I say, as an indication of his poverty is the reference to where he lived at his home. He had no home at all to sleep in, he was a person who was essentially residing at an internet café and was allowed to sleep there overnight at a desk. He was not working at the time this plan was put to him, he had no income, was homeless and was impoverished. He took this opportunity, as he said, as an opportunity to change his circumstances. The change that he has now got and is about to get is not the circumstance that he envisaged. It was put by Mr White that his client now realises the grave and fool-hardy risk in this matter. However, it was submitted that the Court is really dealing with someone who was economically vulnerable.
33 It was put that Mr Li was co-operative, he did not seek to minimise his offending in any way and that he was remorseful, that the plea could not have come at any earlier time. Again it was stressed that insofar as his period in gaol he had spent approximately nine months in maximum security. In the circumstances I was asked to give particular weight for the utility of this plea and the fact of no priors was stressed.
34 The fact was, however, that in looking at the particular circumstances of Mr Li that he has made full admissions and this needed to be taken into account and does in fact differentiate him from his fellow prisoner.
35 The learned prosecutor submitted that in regard to both, upon the principles that I have earlier rehearsed, both prisoners warrant a term of immediate and substantial imprisonment. She stressed the fact that these were persons on a pre-planned, opportunistic mission. She submitted that their behaviour was highly culpable and for financial reward. In those circumstances Ms Tran said that the authorities stress the importance of a sentence which effects general deterrence for the reasons that, as demonstrated in this case, this type of criminality is very difficult to detect. It also, she submitted, should act as a signal to others. I think in reality economic deprivation overcomes any signals to others but at any rate we must try.
36 She also noted that there needed to be a discount in this matter for the remorse shown and effected by way of the assistance given to investigators. I have specifically read pp.172 through to 176 in which Mr Li has named three persons and indicated that he was prepared to assist in those matters, s.16A(2H) of the Crimes Act 1914 (Cth), requires this Court to take such matter into account. It is also significant, it seems to me in regard to Mr Li, that his own disclosure led to the charge insofar as the first offence is concerned and is an indication of significant remorse.
37 Insofar as Ms Chan was concerned the prosecutor made the point that there was no evidence of contrition, no admissions, and indeed, her record of interview in fact contained falsehoods.
38 Ms Tran noted the pleas at the first opportunity, they were both young offenders and the hardship in the prison community. She submitted essentially that a sentence of parity should apply.
39 I have considered these matters and the sentencing materials provided by the Commonwealth. I have taken the view that because of the effect of the discount for co-operation, the importance to the community of persons assisting investigators, that total parity is not appropriate in this case. A range was then put by counsel in the matter.
40 Would you both rise please.
Sentence
41 Doing as best I can and taking into account all of those matters, in regard to Charge 1, Mr Li, you are sentenced to a period of imprisonment of three and a half years.
42 In regard to Charge 2, Mr Li, you are sentenced to a period of imprisonment of four and a half years. Ms Chan, you are sentenced to a period of imprisonment of six years.
43 The difference in penalty needs to be significantly marked because of Mr Li’s co-operation with authorities.
44 Insofar as Mr Li is concerned, to the four and a half years sentence imposed in regard to Charge 2 will be cumulated the amount of eighteen months for the sentence in regard to Charge 1, making a total effective sentence of imprisonment of six years.
45 I order pursuant to the provisions of s.19AB of the Crimes Act 1914 (Cth) that the minimum period that should be served before you, Mr Li, are eligible for parole is a period of three years.
46 Insofar as Ms Chan is concerned, the total effective sentence obviously is a period of imprisonment of six years, and I order that the minimum period that must be served by Ms Chan before she is eligible for parole is a period of three and a half years.
47 I declare that the period served of two hundred and seventy-six days for each of the accused is to be deemed as service of this sentence imposed individually this day, and a declaration to that effect be noted in the records of this Court.
48 A declaration under s.6AAA is particularly difficult in a case like this, to try to concentrate on what the Court may well have done had the accused both not pleaded guilty when you have such a multitude of factors that have to be considered. However, doing as best as I can in the circumstances to comply with the requirement of Parliament, the sentence I would otherwise have imposed on you, Mr Li, would have been a period of eight years with a minimum of four, and Ms Chan, the period I would have imposed upon you is a period of imprisonment of eight years with a minimum of four and a half.
49 It is important, Madam Interpreter, to explain to each that the total aggregate that they have to serve, each of them, is a period of six years, with a minimum period, insofar as Mr Li is concerned, of three years, and in regard to Ms Chan of three and a half years and the two hundred and seventy-six days they have already served comes off that sentence.
50 Are there any issues from either counsel at this stage?
51 MS TRAN: Your Honour, you just simply have to announce that the sentences commence today.
52 HIS HONOUR: Yes, the sentences of course commence today.
53 MS TRAN: And also there's a forfeiture order to be made in relation to Ms Chan - - -
54 HIS HONOUR: I've already made that, haven't I? Didn't I sign that?
55 MS TRAN: It's probably with your associate.
56 HIS HONOUR: Have I signed it? Yes, I have.
57 MS TRAN: Thank you. They are the matters, Your Honour.
58 MR LOFTUS: No issues arising from that.
59 MS ROLFE: Nothing, Your Honour.
60 HIS HONOUR: Do you want to check with your clients in the circumstances?
61 MS ROLFE: If we may approach - - -
62 MR LOFTUS: Thank you, sir. Thank you, Your Honour.
63 MS ROLFE: Yes, thank you, Your Honour.
(Prisoners removed.)
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11 JULY 13
64 HIS HONOUR: Good morning all.
65 MS TRAN: Good morning, Your Honour.
66 HIS HONOUR: Ms Tran, with Mr Li, is the interpreter in court or with him?
67 MS TRAN: Your Honour, there is no interpreter in court. There is a Mr Wong at Fulham Correctional Centre, who's an inmate, who is able to provide assistance and has been this morning to Mr Li.
68 HIS HONOUR: Good, good. That's good.
69 MS TRAN: And Your Honour, Mr Li is content for that to proceed, and Ms Rolfe - - -
70 HIS HONOUR: All right. Since these matters are essentially administrative and don't really make any difference, just recorded, as we should have recorded it, I 'm happy with that.
71 MS TRAN: As Your Honour pleases.
72 HIS HONOUR: So the gentleman is Mr?
73 MS TRAN: Mr Wong, Your Honour.
74 HIS HONOUR: Mr Wong, if there's any queries that you have, just ask, all right?
75 MR WONG: Yeah, yeah, no problem.
76 HIS HONOUR: All right. Ms Tran, what you've said in regard to Chan, I need to specify the sentence on Charge 2 commences today.
77 MS TRAN: Your Honour, Mr - - -
78 HIS HONOUR: Now, that's so, but I did say that, but I notice in the order that we didn't type it.
79 MS TRAN: Your Honour, Ms Chan had one count, so her sentence is correct. It's Mr Li, because he's got two charges - - -
80 HIS HONOUR: I know that, but the order that was done was total effective sentence is six years' imprisonment. What I think I should add to that is that such sentence is to commence today. I said that in Paragraph - as you said - in Paragraph 52, but I didn't put it on the order.
81 MS TRAN: Yes, Your Honour.
82 HIS HONOUR: Or we didn't put it on the order. See, in Paragraph 52 in your letter, "The sentence of Chan is to commence today."
83 MS TRAN: Yes.
84 HIS HONOUR: But that actually isn't on the order.
85 MS TRAN: No, Your Honour.
86 HIS HONOUR: Have you got the copy order? See that?
87 MS TRAN: Yes, Your Honour.
88 HIS HONOUR: So, "Total effective sentence is six years' imprisonment, such sentence to commence today."
89 MS TRAN: Yes, Your Honour, that is correct.
90 HIS HONOUR: Okay?
91 MS TRAN: Yes.
92 HIS HONOUR: And then Mr Li, again with your advice, Charge 2 should read, "Convicted and sentenced to 54 months' imprisonment, such sentence to commence today."
93 MS TRAN: Yes, Your Honour.
94 HIS HONOUR: Charge 1, convicted and sentenced to 42 months' imprisonment, such sentence to commence in two years and six months.
95 MS TRAN: That's correct.
96 HIS HONOUR: From today.
97 MS TRAN: That's correct, Your Honour.
98 HIS HONOUR: And that will make us comply with the Commonwealth Crimes Act.
99 MS TRAN: That is so, Your Honour.
100 HIS HONOUR: Excellent. All right. Mr Wong, can you just tell Mr Li that there's really no difference in what I've just done to his sentence. All that it made clear is when they're Commonwealth sentences, you've got to detail when they actually commence, and there's no difference in these alterations being made. His total effective sentence is still six years, and the period that he has to serve before being eligible for parole is three years, less the 276 days he's already served.
101 MR WONG: Okay.
102 HIS HONOUR: Mr Wong is just going to detail that. Yes, Mr Wong.
103 MR WONG: I explain to him.
104 HIS HONOUR: Yes. Okay? Yes, Ms Tran.
105 MS TRAN: Thank you, Your Honour. Just for completeness, would Your Honour revise the remarks on sentence and make those amendments to Paragraph 52, Your Honour.
106 HIS HONOUR: Yes, I'll do them in the order, and I'll revise it in Paragraph 52 as well.
107 MS TRAN: I'd be grateful, thank you, Your Honour.
108 HIS HONOUR: What we'll do, we'll add to the sentencing remarks the remarks from today. I think that's the only way I can do it. I can't actually revise Paragraph 52. What we do, we add another - - -
109 MS TRAN: Yes.
110 HIS HONOUR: We just add the transcript from today.
111 MS TRAN: Thank you, Your Honour.
112 HIS HONOUR: And that transcript will record that I have amended the Chan order so that the order as to the total effective sentence of six years' imprisonment details that ,"Such sentence was to commence today," that is 12 June 2013, and the amendments to Mr Li, again, don't alter the six years and minimum three years that he's got, except that they detail that "Charge 2 is to commence today," being 12 June 2013, and Charge 1, "Such sentence to commence two years and six months from today," again being 12 June 2013, and I make those amendments pursuant to the provisions of s.412 of the Criminal Procedure Act 2009.
113 MS TRAN: Thank you, Your Honour.
114 HIS HONOUR: And I thank you, Ms Tran, and Ms Rolfe, you're happy with that?
115 MS ROLFE: I am, Your Honour, thank you.
116 HIS HONOUR: I thank you both for your assistance. And Mr Wong, we thank you for your assistance as well.
117 MR WONG: Yeah, no problem.
118 MS ROLFE: Your Honour, if I can just inquire via Mr Wong whether Mr Li has any questions?
119 MR WONG: No, he don't have any question.
120 MS ROLFE: Thank you, Mr Li and Mr Wong. Thank you, Your Honour.
121 HIS HONOUR: Thank you very much, and thank you Ms Rolfe and Ms Tran.
122 MS TRAN: As Your Honour pleases.
123 HIS HONOUR: We'll make those amendments. Thank you.
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