The Queen v Yu
[2019] VCC 1019
•12 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00547
| THE QUEEN |
| v |
| TUNQIANG YU |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 June 2019 |
| DATE OF SENTENCE: | 5 July 2019 12 July 2019 |
| CASE MAY BE CITED AS: | The Queen v Yu |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1019 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Traffick large commercial quantity of drug of dependence methylamphetamine - Serious drug offender – Import tobacco products – defraud the revenue.
Cases Cited:Haddara v DPP (2016) VSCA 168, Dawid v DPP (2013) VSCA 64, Stephen Loftus v The Crown (2019) VSCA 24.
Sentence:Total effective sentence is eleven years and three months imprisonment with a non-parole period of eight years and six months imprisonment before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr J. Dickinson QC (Plea) Mr J. Taaffe (Sentence) | Doogue and George Defence Lawyers |
HIS HONOUR:
1Tunqiang Yu, on 27 June 2019, at the County Court in Melbourne you pleaded guilty to the following charges on Indictment No.H10309672.1:
Charge 1, importing tobacco products with the intention to defraud the Commonwealth. This charge has a maximum penalty of 10 years' imprisonment.
Charge 2, traffick in a large commercial quantity of drug of dependence. The drug of dependence was methylamphetamine. This charge has a maximum penalty of life imprisonment.
2You consented to a related summary charge which was possessing the proceeds of crime. You pleaded guilty to that charge. The maximum penalty for that offence is two years' imprisonment.
Circumstances of your offending
3The prosecution tendered the 31-page summary of prosecution opening on the plea dated 25 June 2019. This was Exhibit “A” on the plea. I have read that summary and taken the matters set out in it when considering the appropriate sentences for your offending. Mr Fisher, the prosecutor, read out sections of Exhibit “A” in the course of the plea hearing.
Charge 1 – Import tobacco products with intent to defraud the revenue
4A brief summary of your offending is as follows:
5You, Dengyao Ouyang and Shijie Liu were involved in the importation of foreign tobacco products to Australia. Dengyao Ouyang and Shijie Liu have left the jurisdiction prior to the interception by police.
6Between 28 May 2016 and 2 February 2017 you and your co-offenders imported and distributed a large quantity of tobacco products. In this period of time you sometimes lived with your former wife and children at the address in Blackburn North.
7The police monitored texts and phone conversations between yourself and Ouyang, who is referred to as “Brother Two”, and Liu, who is referred to as “Ocean”, in the period between February 2016 and January 2017. You are referred to as “Uncle Fish Fillet” or “Fat Boy”.
8The content of the texts and the phone conversations are set out in Exhibit “A”, specifically in paragraphs 103 to 129. You are the person in control of the warehousing and distribution of the cigarettes to the retail level of this illegal cigarette trade. In effect, you are at the wholesale warehouse level of involvement.
9The police executed two search warrants in respect of two suspected shipments on 4 February 2017 and 11 February 2017. On Saturday 4 February 2017, a shipping container was examined at the Customs Examination Facility. A search warrant was obtained and 750,000 illegal imported cigarettes were located inside that shipping container.
10On 11 February 2017, a separate shipping container arrived at the Port of Melbourne from China. It had been imported by VTL Trading Pty Ltd. The contents of the container were described as “kitchen cabinet” and “plastic floor”. It was examined at the Customs Examination Facility and in that container 718,000 of illegal imported cigarettes were located inside the shipping container.
11On 4 April 2017, a further search warrant was executed at the Blackburn North address. During the search the following items were located:
(a) Assorted documents in the name of Mr Tunqiang Yu and Ms Caijiao Ouyang;
(b) 10 packets of Shuang XUI (Large) cigarettes; and
(c) A packet of medium cigarettes and two packets of small cigarettes.
12In your interview with police on 18 April 201, you denied any knowledge of or involvement in importing cigarettes from China.
13During the searches that were undertaken a number of foreign cigarettes were located at the following addresses:
·A storage unit, 2007, 54 Lexton Road in Box Hill South, investigators located a cardboard box containing numerous cartons.
·At 19 Bayley Grove in Doncaster, investigators located five boxes containing cigarettes.
·In the shipping container that I have previously referred to, investigators located 750,000 cigarettes.
·In a different shipping container, investigators located 718,000 cigarettes.
·At the property in Blackburn North, investigators located 10 Shuang XUI (Large) cigarettes, one medium cigarettes and two smaller packets of cigarettes.
14In total, 1, 644, 112 cigarettes were seized in these searches. The total of the duty evaded was calculated at $1,000,298.32. The prosecution and defence agree on this amount.
Charge 2 – Traffick in a drug of dependence – large commercial quantity
15Your offending in respect of Charge 2, is separate from your tobacco offending. There is an overlap of time for the period 22 January 2017 to 2 February 2017, a period of 10 days. You are not charged with nor is it alleged that you were involved with the importation of the methylamphetamine.
16The prosecution allege Wesley Ng, Hing Mak, Ka Chun Ng and Dengyao Ouyang (your brother-in-law), were responsible for the importation of the drugs. Each of them have left the jurisdiction prior to being arrested by police. I note your brother-in-law was also involved in the cigarette importations.
17The offending is that between 22 January 2017 and 2 February 2017, as part of your involvement with the syndicate, you were involved in the preparation of a large commercial quantity of methylamphetamine. The methylamphetamine was largely hidden within a wax substance concealed in laminated floorboard which had been imported from China. The prosecution do not allege that you, were involved in the importation of the floorboards.
18This charge relates to methylamphetamine located at two addresses, totalling 6.1052 kilograms as follows:
(a) A total of 6.0488 kilograms was found within floorboards located at the storage facility unit No.2007 at 54 Lexton Road in Box Hill North:
(i) 168.8 grams of pure methylamphetamine which was found in residue extracted from the floorboards contained within nine of the 10 boxes;
(ii) 5.88 kilograms of pure methylamphetamine located within six remaining laminated floorboards in the last box;
(b) 56.4 grams of methylamphetamine and a plastic carboy containing yellow liquid containing methylamphetamine and water which was located at your home address in Blackburn North.
19Between 22 January 2017 and 2 February 2017 you were in possession of $10,419.80 cash suspected of being proceeds of crime. The relevant matters relied upon are set out in Exhibit “A”. The investigation resulted in the evidence being obtained by physical surveillance, telephone intercepts, listening devices and tracking devices placed into vehicles.
20On 15 January 2017, investigators began to intercept the phone calls and the encrypted messages sent by you and Ng. Ng would regularly contact you on his mobile phone and ask you to switch the encrypted communication application so that the content of your communications would be more secure.
21As at 15 January 2017, you were in Ballina, New South Wales. There were a number of telephone calls between you and others from the syndicate which the prosecution contend to refer to the process of reconstituting methylamphetamine. You returned to Melbourne on 22 January 2017, which is when your involvement in Charge 2 is said to have commenced.
22The prosecution contend that those communications reveal that those involved in the syndicate were engaged in the process of extracting and reconstituting the methylamphetamine from the wax which had been concealed within the floorboards.
23On 16 January 2017, Ng, Mak and an unknown male were observed leaving 2/8 Medway Street in Box Hill North. While the garage door was open, federal surveillance officers observed at least six boxes which were between 15 centimetres and 2.5 metres in length were stacked in the garage. The prosecution contend that those boxes contained the laminated floorboards that were imported from China.
24You arrived at Tullamarine Airport on 22 January 2017. Your brother-in-law drove you to the address in Blackburn North, where your former wife and children lived.
25Shortly after you were in Ng's vehicle. At 3.20 pm on that day a listening device in Ng's vehicle captured a conversation between you and him in which you discussed packing up the items currently being used to manufacture the methylamphetamine which are stored at 2/8 Medway Street in Box Hill North.
26Mak is also in the vehicle and explained that when he first came into the country he was asked why he was travelling in Australia and why he had now rented a house. Ng advised that he was planning to destroy everything or move it to another location and provided the instructions on how the items were to be packed. Ng stated that “Brother Seven”, that is you, 'will fix everything'. He directed that the personal items will need to be kept separate and all the manufacturing items are to be kept together.
27A number of telephone conversation intercepts between yourself and other offenders were set out in Exhibit “A”. These conversations were for you to organise the removal of the items and the floorboards. You organised a van to move the contraband and find a new premises to store it. You drove the rented van with its contents to storage unit 2007 at 54 Lexton Road in Box Hill North. You unloaded the van and locked the storage unit. You returned the rented van to Budget and paid for the hire of the van.
28On Thursday 2 February 2017, a search warrant was executed at the address in Blackburn North. Numerous persons were present. At approximately 6 am you were arrested as you came out of a bedroom at the premises. During the search of the bedroom occupied by you the investigators located the following items:
(a) A brown wallet containing a quantity of cash which was $1,919.80 and various cards in your name; and
(b) A quantity of Australian currency which was $8,500.
29These two amounts constitute the amounts of the possessing proceeds of crime. Police located other drug-related items at your home address.
30On Tuesday 18 April 2017, investigators conducted a further interview with you. During the interview you stated as follows:
31(a) You worked in the kitchen at a restaurant in Yamba, New South Wales, and earned between $950 and $1,100 a week and that was the only income that you were earning;
(b) You had a house loan with the Commonwealth Bank for $400,000;
(c) You had paid living support for your daughters;
(d) You paid rent to live at 11 William Avenue in Yamba, New South Wales;
(e) You could not remember whether you had been to a factory in Nunawading, Victoria;
(f) You did not know if you knew anyone that was involved in the importation of goods;
(g) You denied knowing Dengyao Ouyang, who was your brother-in-law, and denied that you attended his business in Norcal Road in Nunawading, and you denied any involvement in the importation of the floorboards.
32That is a summary of your offending in this case. Your counsel described your role as that of a garbage man. At the least, your role was that of removing the contraband from one place, transporting it to another storage place for recovery or preservation for the future. Your role was that of a trusted intermediary who was higher in the scheme of the syndicate than a mere courier.
Personal Circumstances
33You are now 55 years old. At the time of the offences you were between the ages of 52 and 53 years old. You were born in Guangzhou, China. Your immediate siblings live in China and your mother, who I understand is 80 years old, still lives there. You were educated to the equivalent of Year 12. In your school years you worked part-time to support your family. From 1984 until 1989 you completed an apprenticeship as a chef. In 1991, you met your wife, Candy. In 1997, you were married. In 2003, your first daughter Yinghua was born. Late in 2007, you migrated to Australia with your wife and daughter.
34In 2008, you started working as a chef in Yamba, New South Wales. In 2010, your wife became pregnant with your youngest daughter, Yuhua. Your wife was concerned about the level of medical care available to her in Yamba and moved to Melbourne where Yuhua was born in February of 2011.
35Due to the tyranny of distance and other matters, you divorced Candy. You remained working as a chef in Yamba until the time of your arrest for these offences. You maintain contact with your former wife and provide financial support for your daughters. You have been in custody before this plea for a total of 883 days pre-sentence detention.
36Whilst in custody you have engaged in courses in English classes to improve your prospects upon release from prison. You have had visits from your former wife and two daughters. You have had a long wait to learn of your fate as a result of the sentencing process for these offences. Initially you were charged with other matters that were going to trial. After settlement to the present charges you pleaded guilty. The delay and time in remand custody would be more burdensome for you and I take that matter into account when sentencing you ultimately.
Sentencing Considerations
37Your offending is both Commonwealth and state offending. Charge 1 is a federal offence. I will set out the considerations for sentencing a federal offender.
38The most significant consideration in sentencing a federal offender such as yourself in s.17A of the Crimes Act which provides as follows:
"A court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case".
39A term of imprisonment is the only appropriate sentence for your offence under the federal law.
40Section 16A of the Crimes Act, sets out a non-exhaustive list of factors the court must take into account and consideration when sentencing a federal offender such as yourself. There are many factors I must take into account and they are set out in that section. These factors include the following:
(a) The nature and circumstances of your offending;
(b) If your offending formed part of a course of conduct consisting of a series of criminal acts. In this case there is one charge of importing tobacco and one charge of trafficking a large commercial quantity of methylamphetamine which is a state charge;
(c) Any loss or injury or damage resulting from the importation offence. In this case there is a loss to the Commonwealth revenue of approximately $1m;
(d) The degree to which a person has shown contrition for the offending;
(e) You have pleaded guilty to the offence;
(f) That the deterrent effect of any sentence or order under consideration may have on you personally, that is, specific deterrence;
(g) That the deterrent effect that any sentence under consideration may have on other persons - that is, general deterrence. In a case such as this general deterrence is of prime consideration;
(h) The need to ensure that you are adequately punished for your offending;
(i) Your character, antecedents, age, means and physical and mental condition;
(j) The prospects of your rehabilitation; and
(k) The proper effect any sentence or order under consideration would have on your family.
41I am required to take into account current sentencing practices in respect of the charge of defrauding the Commonwealth by smuggling of tobacco products. In 2012, Parliament increased the maximum sentence to the current maximum of 10 years' imprisonment. The penalty also applies equally to importing or possession charges. You are charged as an importer of tobacco products.
42Each of your tobacco syndicate members have left the jurisdiction prior to your arrest. You are the only member of this syndicate to face justice for your offending.
43In respect of the sentencing considerations for Charge 2, they are set out in the Sentencing Act in Victoria. There is significant overlap between the relevant sentencing considerations in respect of Charge 1 and Charge 2.
44In respect of the state offences the basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
45I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society which will not be this society.
46I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of the sentences. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed from one another.
47You have pleaded guilty to these charges on this indictment. Once the charges were agreed between the prosecution and your legal advisers you did plead guilty. Your charges were resolved on 15 October 2018. Your plea was formalised on 27 June 2019.
48Your plea does have the utilitarian value for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issue is raised by your offending. Your plea also allows for the preservation of court and investigative resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
49Your plea is also a clear indication and acknowledgment by you that you accept your responsibility for your criminal behaviour. Your plea also recognises that you are willing to facilitate the course of justice in this community, and I accept that your plea to this charge demonstrates some remorse on your part. Your plea of guilty is significant in this particular case because of the number of witnesses that would be required to attend at trial and prove the charges against you.
50In respect of the importation of tobacco your offending extended over a period of some eight months. You were an integral part of a syndicate of fellow offenders in this criminality. The telephone intercepts reveal your role was that of a warehouseman and person trusted with the checking on the collection of money at the Australian end of the syndicate. Your brother-in-law Dengyao Ouyang, known as “Great Ocean” in the intercepts, was giving your orders and directions. Your activity was critical to the syndicate. The total of the fraud on the Commonwealth revenue was $1m.
51The charge of trafficking a large commercial quantity of amphetamine occurred over a period of two weeks. This period of offending overlapped the period of offending in relation to Charge 1. I assess your role in this offence as a trusted intermediary who was higher than a courier in its criminal enterprise such as this offending.
52The quantity of the drugs is 6.244 kilograms of pure methylamphetamine. On my calculation that is 8.3 times the quantity for large commercial quantity under the legislation. In a quantity-based sentencing regime this is a very significant amount of the drug of methylamphetamine.
53In the case of Haddara v DPP reported at [2016] VSCA 168 at paragraph 66 to 67 the Court of Appeal stated the following when referring to sentencing offenders for trafficking in methylamphetamine. The Court said as follows:
“The prevalence of trafficking in ice is so great, the Director submitted, that general deterrence must be given even more focus in the case of that drug than in others. To afford general deterrence greater prominence in cases of trafficking in ice than in cases involving the trafficking of other drugs, the Director submitted, does not offend the principles in Pidoto. It was submitted that Pidoto rests on the foundation that by determining a 'quantity-based' relativity between different drugs, the legislature excluded the possibility of a 'harm-based gradation'. Nothing in that reasoning, however, requires a sentencing judge to exclude from consideration other relevant aspects of an offence unrelated to the harmful characteristics of the drug. For that reason, so the Director submitted, given that the available evidence demonstrates that trafficking in ice is prevalent, it is permissible for a sentencing judge to apply the 'ordinary approach' to prevalence, and give additional weight to general deterrence and denunciation.
In our view, the Director's submissions as to how trafficking in ice ought now be approached should be accepted. In Pham, French CJ, Keane and Nettle JJ recognised that although the court in Adams rejected any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances, nothing said in Adams displaced the holding in Wong that to treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represented a departure from fundamental sentencing principles”.
54The general principle of sentencing offenders for drug trafficking was set out by Kaye JA in Dawid v DPP [2013] VSCA 64 at paragraph 35.
“The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs”.
54You have been resident in Australia since 2007. From 2008, you had legitimate employment as a chef in a restaurant in Yamba, New South Wales, until your arrest and imprisonment for these matters. Your former wife and your children live here in Melbourne. Your youngest daughter was born in Melbourne in 2011. The three of them are well settled here to live in Australia.
55The sentence I will impose upon you will either trigger a discretion or, alternatively, a duty to deport you at the completion of your sentence.
56In the case of Stephen Loftus v The Crown reported at [2019] VSCA 24, the Victorian Court of Appeal said as follows:
“The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.
In assessing, for the purposes of sentencing, the chance of deportation, it will be relevant to consider whether the sentence imposed would trigger a discretion, or alternatively a duty, to cancel the visa held by the offender.
Although the potential that an offender may be deported following sentence is a relevant consideration in sentencing in the way explained above, that potential cannot control or dictate the sentencing outcome. It would be an error for the sentencing judge to impose a sentence that would otherwise not be appropriate, for the purpose of avoiding the operation of the Migration Act”.
57I take into account that it is most likely that you will be deported to China at the completion of your sentence. I accept that prospect will render your incarceration more difficult and that you have the additional punishment that your prospect of settling here in this country will be destroyed.
58Further, you will be separated from your children and will only be able to see them if they travel to see you, wherever you then restart your life at the end of your sentence of imprisonment. I take these three aspects flowing from your deportation when imposing sentence upon you.
59I accept your incarceration and deportation will have a significant impact on your daughters and your relationship with them. Your daughter Alita Yu writes to the court and states as follows:
“I desire and wish my father, Tunqiang Yu, to return to our family very soon and be able to participate and be present in both my sister and my life again as we miss him very much and want him to continue to be part of our childhood”.
60You have visits from your children and ex-wife and mother-in-law on a regular basis whilst you have been in prison. I assess your prospects of rehabilitation as guarded. You have engaged in courses and training whilst you are in custody, you are learning English. You have no prior convictions; however, your crimes were in two different areas of criminality, defrauding the Commonwealth and trafficking in a large quantity of methylamphetamine. Your offending involves some common syndicate members and the period of offending overlapped.
61I have cumulated part of the sentences in Charge 1 and Summary charge 3 on the base sentence of Charge 2. I have taken into account the principle of totality so as to avoid imposing a crushing sentence upon you.
62The principles of general deterrence, just punishment, denunciation of your actions and protection of the community dictate that a substantial term of imprisonment to serve is the only just sentence.
63Will you stand please?
64On Charge 1, which is the Commonwealth importing tobacco charge, you are convicted and sentenced to two years and six months' imprisonment and that sentence is to commence today, 12 July 2019.
65On Charge 2, which is the State trafficking large commercial quantity charge, you are convicted and sentenced to nine years and six months' imprisonment. That sentence is to commence on 12 January 2021.
66On Charge 3, which is dealing with the proceeds of crime charge, you are convicted and sentenced to serve six months but three months of that sentence is to be cumulative upon the charge in Charge 2. That gives you a total effective State sentence, that is on Charges 2 and 3, of nine years and nine months.
67In respect of State sentences, I fix a non-parole period of seven years' imprisonment. I declare that you have served 890 days of pre-sentence detention in respect of all of these sentences.
68I decline to fix a recognisance release order in respect of Charge 1 on that basis that the total sentencing process here means that your sentence will exceed three years and it would be ineffective to fix any such recognisance.
69Overall, this is just a notation. Your sentence is a total effective sentence of 11 years and 3 months' imprisonment and the effective non-parole period is eight years and six months.
70HIS HONOUR: Now, was there a forfeiture and disposal order?
71MR FISHER: Just a forfeiture order, Your Honour.
72HIS HONOUR: A forfeiture order, yes.
73MR FISHER: I think that either - I handed it up or it was e-lodged on the last occasion or prior to the last occasion.
74HIS HONOUR: Yes, I have signed the forfeiture order.
75MR FISHER: Thank you very much.
76HIS HONOUR: Now, does that cover everything this time?
77MR FISHER: Yes, it does, thanks Your Honour.
78HIS HONOUR: Yes, thank you. So, Mr Yu, just to be clear, on the last occasion you were before me, I announced a sentence of 11 years and three months and a minimum non-parole period of eight years and six months. Effectively, none of that has changed. None of that has changed. All they have done is put it in the proper form to comply with the legislation. Thank you. Thanks, Madam Interpreter, you can step out of there. Thanks, you can remove the prisoner. Counsel, thanks for your assistance. Mr Taaffe, if you could pass my gratitude along to Mr Dickinson ‑ ‑ ‑
79MR TAAFFE: Yes, sir.
80HIS HONOUR: ‑ ‑ ‑ for checking this. I am sorry you all had to come back on a second occasion. Madam Interpreter, thanks for your assistance today.
81INTERPRETER: You are welcome.
82HIS HONOUR: Ms Millios, thanks for giving me the heads up on the email.
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