R v Wang
[2013] VCC 487
•12 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00304
| THE QUEEN |
| V |
| YOUXIAN WANG |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 April 2013 | |
CASE MAY BE CITED AS: | R v Wang | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 487 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth DPP | Ms M. Curmi | |
| For the Accused | Mr I.G. Crisp |
HER HONOUR:
1 Youxian Wang, you have pleaded guilty to one rolled up charge of importing a border-controlled precursor chemical, pseudoephedrine. The maximum sentence for this charge is 25 years' imprisonment or a fine of $550,000.
2 The charge covers two separate importations occurring on two consecutive days in early September 2011.
3 An analysis of text messages found on the iPhone that was in your possession when you were arrested shows that between 4 August and 14 September 2011 you were in frequent contact with a number of telephone numbers registered in China. They show that you were playing an active role in arranging the importation of the pseudoephedrine. In addition, a number of the messages indicate that you were taking steps to avoid detection or monitoring, in particular by suggesting that communications be conducted through QQ.
4 On each of 8 and 9 September 2011 customs officers intercepted packages imported from China through Singapore. The sender was the same on each occasion. The packages were addressed to two different recipients at two different addresses. Both addresses were in Preston. The first package contained stainless steel double-sided bowls and the pseudoephedrine had been secreted in the hollow between the two separate bowls. The second package contained two DVD players and graphic equalisers. The pseudoephedrine was concealed in small packages inside one of the DVD players and one of the graphic equalisers.
5 The first package contained just under 4 ½ kg of ContacT, a cold and flu medication sold in China that contains pseudoephedrine. It was just under 30 per cent pure, so yielding about 1.3 kg of pure pseudoephedrine. That in turn is capable of yielding between ¾ to 1 kg of methyl amphetamine or just under 1 kg to just over 1.3 kg of methyl amphetamine hydrochloride.
6 A slightly larger quantity of ContacT was obtained from the second package. There was just over 1.8 kg of pure pseudoephedrine in the second package, capable of yielding between 1.1 and 1.6 kg of methyl amphetamine or 1.4 to 2 kg of methyl amphetamine hydrochloride.
7 The only evidence before me as to the value of that was provided in respect of the pseudoephedrine in the second parcel. Taking the lowest figure for the yield of methyl amphetamine hydrochloride, on what was contained in the second package, that is 1.426 kg, it was estimated that that would bring between $150,000 and $325,000 wholesale or between $2.6 and $3.8 million at street level. Therefore it can be estimated that the total value of the two importations is somewhere between $300,000 and $600,000 wholesale or between $5 and $6½ million roughly at street level.
8 A Customs and Australian Federal police operation led to controlled deliveries being made in respect of each of these importations. You were eventually arrested in your car, a black Lexus with New South Wales registration, near the house where the second delivery was taking place. Surveillance evidence showed that you were in company with other men at and around the house in circumstances where you were clearly involved in and waiting for the delivery.
9 A search of you and your car revealed the iPhone with the text messages to which I have already referred, another telephone, an amount of cash and a piece of paper containing the consignment numbers, names and addresses for the packages that had been sent to each of the two addresses in Preston.
10 In the prosecution summary, which I am told you accept, it was said that the text messages were consistent with you having ongoing dealings with people in China regarding the importation of the packages containing the ContacT, including dealings regarding the imported packages seized by Customs. The text messages and other circumstances establish that you played a proactive and significant role in the importation of the two packages. In particular, you engaged with the suppliers in China, solicited the importation of the packages, made or undertook to make payment for the contents, and enlisted others to participate in the collection of the packages. You travelled with others from your home in New South Wales to assist in the process and you made arrangements to deliver and sell the pseudoephedrine to others. The prosecution asserts and you accept that you intended to make a profit and that you knew that the pseudoephedrine would be used to manufacture methamphetamine.
11 It follows that your role is a significant one and at the higher end of the scale.
12 When interviewed you gave a patently false account, in which you portrayed yourself as an innocent agent doing no more than driving a car at the request of a friend, and ferrying your friend and an unknown person to destinations directed by them. By your guilty plea you have clearly disavowed this account.
13 A committal hearing was held five months after your arrest. When committed, you entered pleas of not guilty to the charges then laid against you, and it was not until the final directions hearing in December 2012 that you indicated that it was your intention to plead guilty to a rolled up charge which covered both importations.
14 You spent two days on remand before being released on bail immediately after your arrest. You have no previous convictions and I am told there are no charges pending against you. You come before the court, therefore, as a 24-year old with no criminal history but facing a very serious charge warranting a serious punishment.
15 On your plea the following matters were relied on: your guilty plea: your youth; you were only 22 at the time and are now 24; your personal circumstances and the hardship which the imprisonment, which has been accepted inevitably flows, will cause to your family; and your psychological condition and the likely impact of imprisonment on that.
16 You are entitled to a reduction in the sentence otherwise to be imposed as a result of your guilty plea. The weight to be given to your guilty plea is not as great as the weight which would be given to an earlier plea of guilty. Mr Crisp told me on the plea that from the time he came into the matter shortly before the final directions hearing you had been advised that it was in your interests to plead guilty and you considered and accepted that advice. You were legally represented by other lawyers before Mr Crisp came into the matter and I do not consider the fact that new counsel came into the matter and provided you advice, which you accepted, indicates that your plea of guilty should be given the weight which would have been afforded to an plea of guilty entered at an earlier stage. Clearly though, you are entitled to a reduction in the sentence for the utilitarian benefits of your plea of guilty and, although it was not entered at the earliest stage, the timing of it before or at the time of the final directions hearing meant that there was a considerable saving to the community because the time and expense of preparation for the trial which would have been incurred in the two months between the final directions hearing and the trial was saved.
17 The mere fact of the entry of a plea of guilty does not of itself indicate remorse, although at times it, together with other circumstances, does demonstrate remorse. There is no evidence before me that would enable me to make a finding that you are remorseful. I accept that you are sorry for the position you now find yourself in and sorry for the hardship that will be caused to your family, but the evidence goes no further than that. As the Court of Appeal pointed out recently in the case of Barbaro[1], that is not evidence of remorse in its proper sense.
[1]Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288
18 You were born in China and you speak very limited English. You came to Australia in 2008 and you are now a permanent resident. I was told that you obtained permanent resident status in June 2011, that is just three months before the commission of this offence.
19 The biographical material I was given was a little conflicting. There appeared to be some differences between what Mr Crisp told me and what was related by the psychologist, Dr Grech, in his report.
20 It is unclear whether you arrived here on a student visa or a spousal visa. I was told that you undertook some studies initially, but stopped studying and started working in order to support your family. You married in Australia, a woman also of Chinese origin, and you now have three children under five, with a fourth on the way. It would appear that at the time of the commission of the offence you had two children and your wife was pregnant with the third. I have been provided with a medical certificate indicating your wife is due to give birth to your fourth child in late October this year. That means she must have become pregnant at or about the time you entered your guilty plea to this charge.
21 When interviewed you told the police that you and your wife had a toy shop, and that you also sold toys at a Sunday market. You said that provided a good income for you, about $60,000 between the two of you. You had driven from Sydney to Melbourne to commit the offence in a new Lexus, which you said you had paid $67,000 cash for some months earlier. Mr Crisp told me you have been working in building and construction, and testimonials were produced on the plea indicating that that appears to be your current employment. According to what you told Dr Grech, you were under severe financial pressure at the time that you engaged in this venture.
22 It is hard to work out from the material before me what your history was from the time you arrived in Australia in terms of study and work, and even less clear what your financial circumstances were. What is clear is that the evidence about your conduct in respect of the commission of the offence does not appear to have the hallmarks of youthful immaturity. On the contrary, the text messages on your iPhone show you to be well organised and business minded. This was clearly a commercial venture for you, and in those circumstances I do not consider your youth carries particularly strong mitigatory weight.
23 I accept that imprisonment will cause hardship for your wife and your children. That hardship is something that is entirely of your own making as a result of your choices, your conscious choices to engage in large-scale importation of precursor chemicals for gain.
24 A report from the psychologist Dr Paul Grech was provided. There are many unsatisfactory features of the report, and when I raised my concerns about some of them a supplementary report was obtained from him. That did little to allay my concerns.
25 Although Dr Grech said he was in receipt of "relevant court materials" he recounted a history provided by you which is at odds with the prosecution summary and the account you gave in your interview. He makes no reference to those differences and does not appear to have taxed you with them, or to have given any indication about whether his report or his opinions are qualified by reason of those differences. He expresses opinions that go well beyond his expertise as a psychologist. Some of his opinions are factually based on your account to him. Others of his opinions are expressed without identifying the factual basis for them, and his second or supplementary report makes it clear that the test he relied on to support his opinion that you suffer from clinical depression is not designed to enable such a diagnosis to be made.
26 He recounted that you had told him that you had to abandon your studies to make ends meet as a result of the demands of your growing family. He reported you as telling him that you had taken manual jobs and had ultimately found regular work as a subcontract plasterer, as well as selling toys at Sunday markets. He expressed the opinion that what he described as your descent into criminal activity was understood to have been motivated by extreme financial pressures and the additional stress associated with your immigration status and possible ramifications. He said that you acknowledged having made disastrous choices in a desperate attempt to make ends meet.
27 I have already referred to what you told the police about the toy shop business you own with your wife and the income you derived from that. I have also referred to your ownership of the Lexus and your account to the police that you had paid $67,000 cash for it only months before the offending. The text messages on your telephone to which I have referred indicated amongst other things that you had access to the significant sums of money required in order to pay for the imported pseudoephedrine, and I have referred to the fact that I was told you had already obtained permanent resident status before the commission of this offence. No attempt was made in the report to reconcile these accounts or to indicate that the opinion expressed by Dr Grech about your motivation and the stress you said you were under was based on your account but that he was aware there was evidence to the contrary.
28 No history given by you was recounted in either of Dr Grech's reports which would support what Dr Grech described as his clinical impression that you had depressive symptoms of reasonably long-standing duration. Dr Grech’s first report, misleadingly in my view, described the test that he administered to you as a "reliable self-report scale of depression". He did not name or identify the test or indicate its limitations. It was not until I asked what the test was that further instructions were sought from Dr Grech and his supplementary report was provided. That revealed that the test used by him and on which he relied to express the opinion that you suffered clinical depression was the Beck Inventory. The Beck Inventory does no more than provide a snapshot of a person’s feelings over the two-week period immediately before the administration of the test. It is a well regarded and reliable test for that purpose, but it is not held out to be an accurate means of assessing whether a person suffers from clinical depression. The authors of the test make that very clear. The test is strictly limited to a self-report of feelings experienced in the two weeks before the test is undertaken. It is a checkbox test, not one that asks a person to express in their own words what they are feeling. It is also significant that the test was administered at the time that you came down to Melbourne and entered your guilty plea at the final directions hearing, and according to what Mr Crisp had told me, it was in the weeks immediately before that that you had received the advice from him that led to you accepting it and deciding to enter a plea of guilty to the charge.
29 No allowance was made by Dr Grech for the effect on that test, that snapshot, in those two weeks of the impact on you of having to face entering a guilty plea and face the consequences of the inevitability of a substantial term of imprisonment flowing from the plea.
30 It is of little assistance to a sentencing judge to be provided with a report beset with flaws such as those. If an expert report is to carry weight it must, as the rule of court governing expert reports make very clear, set out clearly the information provided to the expert and the facts upon which the opinions are based. If there is a conflict between the account given by the person being interviewed and the agreed sentencing facts, that should be identified so the basis upon which the opinion is expressed can be clearly understood. The tests which are administered should be identified, and their strengths and limitations relevant to the issues at hand should be identified. An opinion based on a test that expressly disavows its capacity to be used to support a finding should not be proffered, and the opinion giver must confine him or herself to expressing opinions within their expertise. It is not their role to make a plea or make excuses for the conduct of a person they assess.
31 None of these flaws are to be laid at your feet, Mr Wang. However, what it means is the report provides no factual foundation or expert opinion to enliven any of the six Verdins principles or to support the assertion that imprisonment would be more burdensome for you than for other prisoners by reason of any mental condition. There is no evidentiary support for a finding that you suffer from depression. The burden on your family is not, as Mr Crisp acknowledged, such as to fall within exceptional circumstances, but I accept that imprisonment will be difficult for you as you have to face the fact that it is your choices that have led to your family being burdened. Imprisonment will be more difficult for you than for prisoners who speak fluent English, but then I would imagine life in the broader community in Australia can also be difficult for a person who does not speak good English. I do not consider the weight to be put on your limited command of English to be high.
32 I was told that you do not disagree with the prosecution opening and characterisation of your role. I accept that you are not at the very top of the ladder but you were well up in the hierarchy. On the material before me this was offending committed solely for the purpose of personal gain. It is clear therefore that considerations of denunciation, punishment and deterrence, both general and specific, all must carry considerable weight. Those who import drugs or precursor chemicals for the making of drugs for gain must understand that they will face substantial punishment when caught. The harm caused by the drugs that can be made from the substance you imported is pervasive. Apart from your relative youth, your absence of previous convictions and your plea of guilty there is little by way of mitigating feature in the circumstances of the offending. It was conceded by your counsel that no sentence other than a substantial term of imprisonment was open to me. I am satisfied, making my independent assessment, that is correct.
33 Mr Wang, could you now please stand. Youxian Wang, on the charge of importation of a border-controlled precursor drugs namely pseudoephedrine you are convicted. You are sentenced to be imprisoned for a period of eight years. I fix a period of six years as the time that you must serve before being eligible for parole.
34 I declare pursuant to section 6AAA of the Sentencing Act (Victoria) that but for your plea of guilty I would have sentenced you to a term of imprisonment of 12 years, and I would have fixed a period of nine years as the time you must serve before being eligible for parole Let me make it clear that the sentence I have passed on you is one of eight years' imprisonment with a minimum term or non-parole period of six years. Whether you are released at the end of that six years upon parole will be a question for the parole authorities and not for this court.
35 I have also been asked to make a forfeiture order in respect to the amount of $1470 which was found in your possession. I propose to make that order and note that it was not opposed.
36 In my view the terms in which I have pronounced these orders are sufficient to comply with the requirement to explain the sentence to you in accordance with section 16 F of the Commonwealth Crimes Act . Your counsel will no doubt visit you and explain further the effect of the orders I have made.
37 Any further orders required to be made?
38 MS CURMI: Did Your Honour make a declaration of the two days served?
39 HER HONOUR: Thank you. You have served two days in pre-sentence detention and I direct that that be counted and reckoned as part of the sentence already served. Anything else?
40 MR CRISP: No, Your Honour.
41 HIS HONOUR: Thank you. Could you remove Mr Wang, please.
42 MR CRISP: I was wondering, Your Honour, in the circumstances if I could speak to my client here in court with the interpreter.
43 HER HONOUR: No, I am sorry, I cannot do that because I must stay on the bench while the prisoner is in the dock and I cannot. I have got other matters I must do before my trial at 10.30.
44 MR CRISP: I see. Thank you.
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