R v Lin
[2015] VCC 777
•9 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case Nos. CR-14-02111
CR-14-01954
CR-14-01953
| THE QUEEN |
| v |
| JIE LIN and ORS |
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JUDGE: | His Honour Judge Jordan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial – 27 April 2015 to 5 May 2015 | |
DATE OF SENTENCE: | 9 June 2015 | |
CASE MAY BE CITED AS: | R v LIN and ORS | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 777 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Commonwealth Director of Public Prosecutions |
| For the Accused Chen | Mr I. Barker | Turnbull Lawyers |
| For the Accused Wang | Ms A. Wilson | Doogue O’Brien George |
| For the Accused Lin | Mr D. Sala | Lethbridges |
1 HIS HONOUR: I will direct some general sentencing remarks to you three offenders, Mr Lin, Mr Chen and Mr Wang, and then I will address some remarks specific to each of you.
2 MR PIRRIE: Your Honour, could the interpreter just take a position.
3 HIS HONOUR: There is no need to reswear her, is there?
4 MR PIRRIE: No, I don't think so,
5 HIS HONOUR: Yes, you can attend. I will direct some general sentencing remarks to you three offenders, Mr Lin, Mr Chen and Mr Wang and then I will address some remarks specific to each of you.
6 Regarding the respective roles you played in the attempt charge, I am of the opinion there is little material difference between you. Initially the Crown submitted the roles of Mr Chen and Mr Wang resulted in more major offending. Different aspects of your respective conduct have been pointed out. Defence counsel made various submissions. In my view, you were all necessary links in the chain of attempt to get 380.5 grams of methamphetamine from China into Australian society. That amount is just over the halfway mark of the marketable quantity range.
7 Mr Lin was active towards the start of the exercise and Mr Chen and Mr Wang were active as later links in the chain. Each link was necessary. For purposes for sentencing you three, I am of the opinion that your roles are principally equal in culpability.
8 In sentencing, I take into account a number of factors common to you all. You are all from China. You were all young offenders in your early 20s when offending. You were all illegally in this country when you offended in September 2013. You had been so for a number of years after visas expired. You were all free of any prior convictions. You all had no matters pending.
9 You have all spent your time in custody productively. You have all pleaded guilty, though at very different stages. You all have some prospects of rehabilitation. You are all at risk of deportation that I accept is probable, even if not entirely certain, but that risk is due to your illegal stays as much as any offending. You all have some support from family, friends and, in one case, a wife. You were all free of any drug addiction at the time of offending.
10 On the evidence, the proper inference is the amount of drugs went beyond personal use quantity and you stood to gain financially in some way, although there is no evidence in the sense of enrichment from your offending.
Mr Jie Lin
11 Mr Jie Lin, I will now direct some sentencing remarks specifically to you. You were charged with importing a marketable quantity of a border-controlled drug contrary to s.307.2(1) of the Criminal Code (Commonwealth), Charge 1 on the trial Indictment. You were also charged with attempting to possess a marketable quantity of an unlawfully imported border-controlled drug contrary to s.307.6(1) and s.11.1(1) and by virtue of s.11(2A)(1) of the Criminal Code (Commonwealth), Charge 2 on the trial Indictment. You pleaded not guilty to both charges.
12 On the seventh day of the trial, you sought leave to change your plea. I granted leave. The prosecution then filed a notice of discontinuance to Charge 1. You then pleaded guilty to Charge 2, the attempt charge, which is really the base charge now on the plea and sentence. The maximum penalty is 25 years' imprisonment. A verdict of not guilty on the importing charge, Charge 1 was entered in the records of the court.
13 While I will more fully deal with mitigation later, I do not accept your plea is any evidence of any real remorse. The prosecution case had become overwhelming. Your very late plea still saved the community some time and expense in regard to a trial initially given a three-week estimate when you were on trial with your co-offender, Mr Chen. In my opinion, only a very modest discount for utilitarian benefits is warranted on your sentence for your plea of guilty.
14 In summary, the facts which found the charge you have pleaded to are set out in the prosecution plea opening, Exhibit A. This is in addition to the evidence led before the jury up to your change of plea. These facts do not require any detailed elaboration.
15 Briefly, you had provided an address in Melbourne of a girl known to you. In China, a package was addressed to her in Melbourne. After interception, a controlled delivery was made to Melbourne at that same address. You arranged to pick up the package. It had contained 380.5 grams of pure methamphetamine when discovered in China. The drugs were hidden amongst other items in the package inside a cardboard box. You took the package and arranged a meeting time and place. You then passed it to Mr Chen at a shopping centre carpark in Burwood, across the road from your home. Mr Chen was driven by Mr Wang in his vehicle to the handover.
16 I regard this as a serious example of this type offending. A number of factors support this view. While the charge is attempt, it was only the interception by law enforcement officers that kept the drugs from getting into the Australian community. You provided the girl's address to assist getting the drugs into this country and you arranged a meeting in a shopping centre. The amount of drugs was considerable. I have already commented on my view of the roles of each of you in the offending. You played a role in the planning. I reject your counsel's submission you were merely a courier.
17 Turning to matters personal to you, you are 25 years of age. You came to Australia in 2007. You were 23 years old when the offending occurred. Your personal circumstances are set out in the summary of matters relied upon in mitigation, Exhibit L1. Your counsel submitted a number of matters in mitigation, also set out in that exhibit. I have taken these into account.
18 In addition, there are some 15 references that were tendered on your behalf that speak of some remorse now and your prospects of rehabilitation, Exhibit L2. Certificates of courses you have completed in prison are Exhibit L3. No evidence of enrichment was before the court.
19 Some other comments have to be made about the defence submissions. It was initially submitted you "did not really know" of the presence of the drugs in the package. That submission was ultimately withdrawn on the second day of the plea. I reject the submission that the very late plea of guilty on day 7 of the trial is of itself evidence of any real remorse. I accept you have prospects of rehabilitation given your age, work history and support. Also, your time in prison has been productive.
20 I am not satisfied there has been any inordinate delay sufficient to be a sentencing factor. The delay in your case in my opinion should not materially alter what is just punishment. Deportation must to some extent at least weigh on your mind but you probably faced it anyway for unrelated matters regarding visa expiry years earlier. The burdensome aspect of it while you are in prison is limited in its connection to your offending. The state of the evidence is such that it is more probable, if not entirely certain, that you will be deported.
21 Your counsel's submission as to sentence was that your time in custody is sufficient to satisfy sentencing principles. I do not agree. Counsel pointed to the substantial number of character references, Exhibit L2. These references describe, amongst many characteristics, your work ethic, personality, good character, your youthful naivety and regret you now have for your offending.
22 The Crown's submission as to sentence was contained in the prosecution's sentencing submissions, Exhibit B. I have taken them into account. I will make some further general sentencing remarks applicable to you all after directing remarks to each of your co-offenders.
Mr Shi Hoa Chen
23 Mr Shi Hoa Chen, I will now direct some sentencing remarks specifically to you. You were charged with attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, contrary to s.307.6(1) and s.11.1(1) and by virtue of s.11(2A)(1) of the Criminal Code (Commonwealth). The maximum penalty is 25 years' imprisonment. You were also charged with possessing a controlled drug contrary to s.308.1(1) and by virtue of s.11(2A)(1) of the Criminal Code (Commonwealth). The maximum penalty for this is two years' imprisonment. You pleaded not guilty to both.
24 On the sixth day of the trial, you were served with copies of photos taken from your mobile phone of the contents of the substituted package sent from China. Your defence was overwhelmed by this additional evidence. You then sought leave to change your pleas. Leave was granted and you pleaded guilty to both charges. I do not accept these pleas as any evidence of real remorse. Your very late guilty plea still saved the community some expense when you were on trial with the other offender, Mr Lin. The trial had been given a three‑week estimate. You are entitled to a very modest discount in my opinion on your sentence for the utilitarian benefits.
25 In summary, the facts which found the charges are set out in the prosecution plea opening, Exhibit A. In addition, evidence was led before the jury. These facts do not need any detailed elaboration. Briefly, you received the substituted package following the controlled delivery from Mr Lin. The quantity involved at interception was 380.5 grams of pure methamphetamine.
26 The second charge relates to possession of 8.7 grams of pure methamphetamine found at the Southbank apartment you and Mr Jian Wang rented. It was found after a police raid. Paraphernalia relevant to drug offending was also found and seized at that time. Included in the equipment were scales and deal bags.
27 I regard this offending in relation to the attempt charge, the base charge, as serious. There are a number of features that support that view. On the attempt charge, it was only the interception of law enforcement officers that kept the drugs from getting into the Australian community. The amount of drugs was considerable and beyond a personal use quantity. I have already commented on my view about the respective roles involved. You received a package from Mr Lin by arrangement at a shopping centre carpark. You were driven there by Mr Wang. You were the next link in the chain that required you to pass the drugs on so as to ultimately get them into Australian society. The facts surrounding the possession charge included equipment found at your apartment, as well as the 8.7 grams of drugs.
28 Dealing with matters personal to you, you are now 25 years old. You were 23 years when offending. You came to Australia from China in 2007. You have been here illegally since March 2010, having overstayed your visa. You were introduced to ice usage but were said not to be addicted. You have a wife and two young children, three years and one year old. Your partner has been supporting you throughout your time in prison. She attended your plea hearing. You also have some support from others, Exhibit C3.
29 Your counsel submitted a number of further matters in mitigation. I have taken these into account. You have done two courses in prison which you have usefully completed now, Exhibit C1. A clear urine sample of 1 October 2014 was tendered, Exhibit C2. A letter from you was also tendered and has been taken into account, Exhibit C3.
30 In your case, I accept some delay is relevant. You have been in custody some 631 days with these matters hanging over your head. I accept your period in custody has also been difficult for you. This is not only due to your limited English but you were also assaulted in prison. You spent two weeks in hospital after your jaw was broken.
31 I accept you have rehabilitation prospects given your age and the support of a partner and family life. Your time in prison has been productive, in spite of the difficulties. The limited utilitarian benefit of your plea that shortened the trial requires a very modest discount on your sentence.
32 Deportation must have weighed heavily on your mind in prison, particularly with two young children born in Australia. However, you face the risk of deportation for unrelated matters regarding visa expiry years earlier, apart from any offending. I accept that your deportation is certainly probable, if not entirely certain.
33 Your counsel submitted that general deterrence must be to the forefront for your type of offending. I agree. He submitted an immediate custodial sentence was appropriate but that it should be close to the time served already. I do not agree. In my view, further imprisonment is warranted. Some limited cumulation was sensibly conceded by defence counsel and I agree. The Crown submitted as to sentence some prosecution sentencing submissions, Exhibit B. I have taken them into account.
Mr Jian Wang
34 Mr Jian Wang, I will now direct some sentencing remarks specifically to you. You have pleaded guilty to one charge of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug contrary to s.307.6(1) and s.11.1(1) and by virtue of s.11.(2A)(1) of the Criminal Code (Commonwealth). The maximum penalty is 25 years' imprisonment.
35 You have also pleaded guilty to one charge of possession of a controlled drug contrary to s.308.1(1) and by virtue of s.11.(2A)(1) of the Criminal Code (Commonwealth). The maximum penalty is two years' imprisonment.
36 The quantity of pure methamphetamine involved in the base charge of attempting to possess was 380.5 grams at interception. The quantity involved in the charge of possession was 8.7 grams found at the apartment at Southbank you rented along with Mr Chen. I take into account your plea as indicating remorse. You made it clear you were pleading over a month out from trial in discussions in March. As well as indicating remorse, your plea saved the community time and expense. The utilitarian benefits also entitle you to a discount on your sentence for the plea as you faced a lengthy trial involving numerous witnesses from both China and Australia.
37 In summary, the facts which found the charges are set out in the prosecution plea opening, Exhibit A. These facts do not require any detailed elaboration. In short, you received the substituted package or consignment following the controlled delivery. Your role was to be the link in the chain that passed the drugs into Australian society. I regard this as a serious example of the type of offending involved in this base charge. There are a number of features that support that view. The fact that the drugs did not get into the community was only due to the interception by law enforcement officers. The amount of drugs was considerable and beyond a personal use quantity. I have already commented on my view of the roles of each of you in the offending.
38 Your vehicle was used and you drove Mr Chen to the handover. The possession charge involved 8.7 grams of pure methamphetamine being found at your apartment after a police raid. Paraphernalia relevant to drug offending was also found and seized at the same time. Equipment included scales and deal bags.
39 You are 24 years old. You came to Australia from China in 2007. You have been here illegally now since 2009. You have had the support of a brother here as well as family in China. You were supported in court. Further personal details are found in the outline of submissions, Exhibit W1.
40 Assay results indicating you were free of drugs were tendered, Exhibit W2. Seven Kangan Institute certificates showing the productive time you have had in prison in spite of language difficulties are in evidence, Exhibit W3. Written character evidence from your sister‑in‑law was provided, Exhibit W4. I accept in your case there has been some delay. You have been in custody some 631 days. Your counsel submitted mitigating factors set out in Exhibit W1. I have taken them into account. The ultimate submission was that your time in custody satisfied sentencing requirements. I do not agree. Sensibly, some cumulation was conceded for the separate possession offence.
41 The Crown tendered written prosecution sentencing submissions, Exhibit B. I have taken them into account. The Forfeiture Order sought by the Crown has been consented to by you and I make that order.
42 I will now address some general remarks to all three of you, Mr Lin, Mr Chen and Mr Wang before passing sentence. As well as personal matters, I must take into account other relevant sentencing considerations. General and specific deterrence must be given due weight in the sentence I impose. It has been said in regard to offences surrounding importation activities that general deterrence is to be given chief weight. I give it that emphasis. The community cannot and will not tolerate offending which so seriously assists the supply of drugs into society. The message must be clear and consistent with appropriate punishment in these circumstances. Your sentence must manifest the community's denunciation of your conduct and impose just punishment.
43 The maximum penalty of 25 years' imprisonment on the base charge is a reflection of the seriousness with which this offending is viewed. I must protect the community from any repetition of this type of offending. I must seek to deter not only you three but others from such offending. Just punishment requires further imprisonment than merely the time already spent in custody. What I propose to do is announce my sentence and the effect of it. Then the mechanics of it will need to be considered by the parties and the dates provided to me in regard to Mr Chen and Mr Wang so that I can then add them to the sentence because I need to declare start dates, it seems, under the Commonwealth sentencing system.
44 Mr Lin, on the base charge of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, I sentence you to four years' imprisonment, such sentence to commence at today's date. I fix a nonparole period of three years and I declare 301 days pre‑sentence detention. But for the late plea of penalty, I would have imposed a sentence of four years and six months' imprisonment with you being eligible for parole after serving three years and six months.
45 Mr Chen, on the base charge of attempt to possess a marketable quantity of an unlawfully imported border-controlled drug, I sentence you to four years' imprisonment, such sentence to commence at today's date. On the possession charge, I sentence you to three months' imprisonment and I order that two months of that sentence are to be served concurrently with the sentence on the base charge, the attempt charge. This makes a total effective sentence of four years and one month and I fix a period before which you will be eligible for parole of three years and one month. I declare 631 days of pre‑sentence detention. But for your plea of guilty, I would have imposed a sentence of four years and seven months' imprisonment with you being eligible for parole after serving three years and seven months.
46 Mr Wang, on the base charge of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, I sentence you to three years' imprisonment, such sentence to commence at today's date. On the possession charge, I sentence you to three months' imprisonment and order that two months of that be served concurrently with the sentence on the base charge. This amounts to a total effective sentence of three years and one month. I fixed a nonparole period of two years and one month. I declare 631 days' pre‑sentence detention. But for your plea of guilty, I would have imposed a sentence of four years and seven months' imprisonment with you being eligible for parole after serving three years and seven months.
47 I will leave the Bench, lady and gentlemen. You can assist me as to how I frame the start dates of that possession charge. You understand I have not sentenced before under the Commonwealth scheme and I will be grateful for your assistance as to how the mechanics of the start date is reflected. But you understand what I have done in terms of concurrency, so I will leave the Bench in a few moments and you can assist me with the form of the order.
48 (Short adjournment.)
49 HIS HONOUR: I am grateful to counsel for their assistance in this. It is foreign territory for me. So you say the start date with respect to the possession charge is expressed as follows: in the case of Mr Chen on the possession charge, the sentence is to commence after serving three years and 10 months after the commencement of the base charge and in relation to Mr Wang, the language is the same, the sentence on the possession charge is to commence after serving two years and 10 months after the commencement of the sentence on the base charge.
50 MR PIRRIE: Which is Charge 2.
51 HIS HONOUR: Charge 2, yes. So is that agreed amongst you all, is it, as the appropriate way to pronounce the commencement date under the Commonwealth legislation?
52 COUNSEL: Yes, Your Honour.
53 HIS HONOUR: Thanks for your assistance. I have indicated I will make that forfeiture order.
54 MR PIRRIE: Your Honour, could I just have a look at the - I think the order that we drafted was slightly different to the one that Your Honour read out.
55 HIS HONOUR: Who are you talking about now?
56 MR PIRRIE: Both of them, I think, Your Honour.
57 HIS HONOUR: Yes.
58 MR PIRRIE: What we had drafted, in relation to Wang, was that the sentence on Charge 3 was to commence two years and 10 months after the commencement of the sentence on Charge 2. That is slightly different to what Your Honour read out.
59 HIS HONOUR: Yes, I just put the "attempt" and "possession" words in there to reflect the differences in the charges, but I have got the numbers there. I will read out what you have given me.
60 MR PIRRIE: Yes.
61 HIS HONOUR: In the case of Mr Wang, Charge 2, which is the attempt charge, is to commence today or 9 June 2015. Right?
62 MR PIRRIE: Yes.
63 HIS HONOUR: Charge 3, which is the possession charge, sentence is to commence after serving two years and 10 months ‑ ‑ ‑
64 MR PIRRIE: After the commencement, not after serving, after the commencement. There can be a difference.
65 HIS HONOUR: I will give it back to you then. I wanted you to settle the form of this order.
66 MR PIRRIE: Yes, we thought we had.
67 HIS HONOUR: This is how it reads, "Charge 3, sentence is to commence after serving two years and 10 months after the commencement of the sentence on Charge 2." Do you want to change that?
68 MR PIRRIE: No - sorry, if you can take out the words "after serving". It's after the commencement of the sentence ‑ ‑ ‑
69 HIS HONOUR: I will hand it back to you. You alter it how you gentlemen say should reflect how I am sentencing. I can leave the Bench or you can do it now. I just read out what you gave me. All right. The suggestion then in relation to Charge 3 that's agreed amongst you all is that the sentence should read as to Charge 3, "Sentence is to commence three years and 10 months after the commencement of the sentence on Charge 2."
70 MR PIRRIE: Yes.
71 HIS HONOUR: That is for charge 3 for Mr Chen. For Mr Wang in relation to Charge 3, "Sentence is to commence two years and 10 months after the commencement of the sentence on Charge 2," which is the base charge.
72 MR PIRRIE: Yes, that's correct.
73 HIS HONOUR: Is that how it should read?
74 MR PIRRIE: Yes, Your Honour.
75 HIS HONOUR: All right. Is that agreed by everyone?
76 COUNSEL: Yes, Your Honour.
77 HIS HONOUR: I'll make the orders in the terms that you lady and gentlemen have settled. All right. Would you take the three gentlemen, thank you.
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