Zhou v Director of Public Prosecutions (Cth)
[2021] VSCA 118
•11 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0219
| DOUGLAS HONG YUN ZHOU | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGE: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 April 2021 |
| DATE OF JUDGMENT: | 11 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 118 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1933 (Judge Hampel) |
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CRIMINAL LAW – Application for extension of time to file application for leave to appeal against sentence – Applicant convicted of one charge of importing a commercial quantity of a border controlled precursor (ephedrine) – Criminal Code (Cth) s 307.11(1) – Sentenced to 5 years’ imprisonment with a non-parole period of 2 years and 6 months – Whether judge erred in rejecting submission that it was not open to find that, at the time of the importation, the applicant had any knowledge of an intention to use the ephedrine to make methylamphetamine – Whether sentence manifestly excessive because insufficient weight given to certain mitigating factors – Application for extension of time granted – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G A Coghlan QC | Melasecca Kelly & Zayler |
| For the Respondent | Ms K Breckweg | Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions |
NIALL JA:
On 6 August 2019, a jury in the County Court found the applicant guilty of one charge of importing a commercial quantity of a border controlled precursor (ephedrine) contrary to s 307.11(1) of the Criminal Code (Cth). The maximum penalty for the offence is 25 years’ imprisonment, 5,000 penalty units, or both.
On 21 November 2019, a judge in the County Court sentenced the applicant to 5 years’ imprisonment with a non-parole period of 2 years and 6 months.
The applicant has applied for an extension of time within which to file an application for leave to appeal his sentence on the following proposed grounds:
1. [Ground abandoned.]
2. The learned Sentencing Judge erred at law in rejecting the submission that it was not open to find that, at the time of the importation, that the applicant had any knowledge of an intention to use the ephedrine to make methylamphetamine.
3. The sentence imposed is manifestly excessive, in that insufficient weight was given to the following mitigating factors, individually or in combination:
(a) prior, and subsequent, good character;
(b) delay;
(c) prospects of rehabilitation;
(d) youth;
(e) PTSD; and
(f) burden of imprisonment.
Although the delay is a relatively lengthy one, the respondent does not oppose the extension of time. In those circumstances, I propose to grant the extension.
Summary of offending
On 1 December 2016, Australian Border Force officers examined a DHL express consignment which was addressed to Jianlun Yu (‘Yu’) at an address in Box Hill. The parcel contained 118 men’s belts, each of which concealed a plastic sheath containing ephedrine, with an aggregate weight of 3.343 kg.[1] The mobile phone number on the consignment belonged to the applicant.
[1]The pure weight (2,052.99 g) was just over 1.7 times a commercial quantity.
The applicant and Yu were friends who had met through online gaming. Sometime in late 2016, via WeChat, the applicant asked Yu to help him accept a parcel and Yu provided his full name and address.
On 2 December 2016, the applicant sent a series of messages to Yu, advising him that an express parcel was to be delivered to his home and asking whether he would be home to accept delivery. When Yu advised he was not home, the applicant messaged that he would have to go to the house to take delivery himself.
The parcel was not delivered. An associate of the applicant contacted DHL to inquire about when the parcel would be delivered, only to be told that the parcel was with customs for inspection. On 4 December 2016, the applicant sent the first of a sequence of messages to Yu telling him not to take the parcel if it was delivered, to deny any knowledge of it if he were asked questions about it and warning him that, otherwise, he would be in trouble.
The following day, Yu messaged the applicant, asking what was going on and the applicant again told him to say the parcel was not his and that they could not talk about it over the phone. That prompted Yu to ask, by message: ‘could it be white …’ and the applicant replied: ‘no. White raw materials.’
Three months later, the applicant messaged Yu, saying: ‘remember to delete the record.’
In May 2017, the applicant was arrested and questioned. He denied asking Yu to accept delivery of the parcel and said that his phone had been stolen.
By the time of the trial, the applicant acknowledged that he had lied to police and had asked Yu to receive the parcel and had sent the messages from his WeChat account. He acknowledged that, by the time he sent the messages of 4 and 5 December 2016, telling Yu not to take delivery of the parcel, and describing the contents of the parcel as ‘white raw materials’, he knew, believed or was aware that there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor. His defence was that the prosecution could not prove that he knew, believed or was aware that there was a substantial and unjustifiable risk that the parcel contained a border controller precursor at the time of importation, that is by 2 December 2016, when he made arrangements to receive the parcel from DHL at Yu’s home in Box Hill.
Reasons for sentence
After setting out the circumstances of the offending, the judge assessed its gravity and the matters personal to the applicant which were advanced in mitigation.
The judge noted the amount of ephedrine imported (just over 1.7 times the commercial quantity); its value;[2] and the maximum penalty.[3] The judge observed that the offending was not a spontaneous act; the applicant performed an important role in the importation and supply chain and those involved stood to gain a substantial profit.[4]
[2]The estimated value was $63,000 to $165,000 (as a chemical); $184,000 to $230,000 (if used to manufacture methylamphetamine which was sold in kilogram lots, ie wholesale); and $965,000 to $1.3m (street value if sold in grams.
[3]25 years’ imprisonment.
[4]DPP v Zhou [2019] VCC 1933, [17]–[18] (‘Reasons’).
The judge rejected a submission that the method used, including using his own name, reflected immature and unsophisticated offending with a high risk of detection.[5]
[5]Ibid [19]–[20].
The judge noted that the applicant, who was 20 years of age at the time of the offence and 23 at the time of sentence, had no previous convictions or involvement with police, there had been a significant delay in the resolution of the matter and during that time, the applicant had obtained steady employment and was in a stable marriage with a supportive spouse.[6] The applicant tendered a large number of supportive references.[7] In this context, the judge gave ‘significant weight’ to the applicant’s youth and appears to have viewed his prospects of rehabilitation favourably.[8]
[6]Ibid [26]–[28].
[7]Ibid [29].
[8]Ibid [46].
The judge also addressed two very significant incidents suffered by the applicant. As a university student, the applicant was employed part-time in a fish and chip shop where he was stabbed by a co-worker in a serious life-threatening attack following a minor altercation.[9] The applicant was hospitalised, underwent major chest surgery and sustained obvious scarring and post-traumatic stress disorder (‘PTSD’) symptoms that led him to withdraw from his university studies.[10]
[9]Ibid [32].
[10]Ibid [33]–[37].
Then, in 2016, when working part-time in a convenience store, the applicant was the victim of a life-threatening armed robbery.[11]
[11]Ibid [38].
These two incidents were obviously, and understandably, very traumatic for the applicant. However, the judge rejected a submission that the after effects of the incidents contributed to the offending. She said:
I accept the evidence therefore that this offence occurred at a time when you were suffering the consequences of two serious life-threatening incidents, that you had become isolated from old friends and that those you kept contact with were, by and large, ignorant of what had happened to you and the impact it had on you. Although I do not accept there is any causal connection between the post-traumatic stress disorder symptoms which you were experiencing in the aftermath of the stabbing which would enliven any of the first four limbs in Verdins (and I note that is a matter Mr Mandy ultimately conceded), I accept that your youth, these two significant life-threatening events and your subsequent isolation or withdrawal from your social circle do provide a context to explain the circumstances prevailing in your life at the time and the contrast between that unsettling period in your life and the more stable and supported life that you appear to have lived before that and resumed since being charged.[12]
[12]Ibid [42] (citations omitted).
The judge accepted that the applicant’s custody will continue to be more burdensome for the applicant by reason of this history and the exacerbation or the re-enlivening of the PTSD symptoms, and that the fifth and sixth limbs of Verdins[13] were applicable.[14] The judge also took into account the applicant’s ‘dependent personality style’ which would make custody more burdensome.[15]
[13]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[14]Reasons [43]–[44].
[15]Ibid [45].
The judge noted the ‘general need to give predominance or paramountcy to general deterrence’ but said that she would balance that against the applicant’s prospects of rehabilitation.[16] The judge rejected a submission by the applicant that the sentence should allow for release on a recognizance release order, which would require a head sentence of less than 3 years’ imprisonment. She observed that notwithstanding the applicant’s youth, previous and subsequent good character and the positive matters counting in his favour, the seriousness of the offence, the quantity of ephedrine imported, his role and the circumstances of the offending generally, all pointed to the need to impose a sentence which would be greater than one which would allow release on a recognizance release order.[17]
[16]Ibid [46].
[17]Ibid [47]–[50].
The offence provisions
The applicant was found guilty of importing a commercial quantity of a border controlled precursor in breach of s 307.11 of the Criminal Code Act1995 (Cth), which is in the following terms:
(1)A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
(2)The fault element for paragraph (1)(c) is recklessness.
(3)Absolute liability applies to paragraph (1)(d).
Reckless is defined as follows:
(1)A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
...
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Ground 1
The applicant abandoned proposed ground 1.
Ground 2
The nub of the argument lies in what was said by the applicant to be an irreconcilable tension between paragraphs [12] and [21] of the reasons for sentence. In paragraphs [11] and [12], the judge said:
By the time of trial, you acknowledged that you had, in fact, asked Mr Yu to receive the parcel and that you had sent him the messages from your WeChat account. It was also acknowledged that, by the time you sent the messages of 4 and 5 December to Mr Yu telling him not to take delivery of the parcel and in describing the contents of the parcel as ‘white raw materials’, you knew, believed or were aware there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor. Your defence, however, was that the prosecution could not prove that you knew, believed or were aware that there was a substantial and unjustifiable risk that the parcel contained a border controller precursor at the time of importation, that is by 2 December, when you were making arrangements to receive the parcel from DHL at Mr Yu’s home in Box Hill.
By its verdict, the jury rejected your defence. It was satisfied beyond reasonable doubt that, at the time of importation, that is, by no later than the time you messaged Mr Yu to arrange for the receipt of the parcel on 2 December, you knew, believed or were aware that there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor.
A short time later in her reasons, she said:
It is clear from the WeChat messages that you sent to Mr Yu immediately after it was discovered that the parcel was with customs for inspection, that you knew that the ephedrine was a precursor chemical because you described it as white raw materials. I do not accept that, as Mr Mandy submitted, it was not open to find that you had any knowledge of an intention to use the ephedrine to make methylamphetamine. What you said in that WeChat exchange indicates that you had a clear awareness that ephedrine or that the substance in the belts was raw material for making a drug.[18]
[18]Ibid [21].
The point that arises can be briefly stated. As the provisions make clear, the fault element for the circumstance that the substance imported is a border controlled precursor is recklessness. That fault element will be satisfied if the applicant knew there was a substantial and unjustifiable risk that the parcel he imported contained a border controlled precursor. Equally, as paragraph (4) of the definition of recklessness makes clear, it will also be satisfied if the applicant knew that the parcel contained a precursor.
For present purposes, it may be accepted that, although either state of mind would satisfy the fault element of the offence, if the applicant knew that the parcel contained the precursor, rather than was aware of a substantial and unjustifiable risk that it did, that would render his conduct more serious for the purpose of sentence. For that reason, trial counsel for the applicant was keen to draw the distinction on the plea.
In paragraph [12] of her reasons, the judge made a clear finding that the jury accepted that, at the time of importation, the applicant knew, believed or was aware there was a substantial and unjustifiable risk that the parcel contained a border controlled precursor rather than having knowledge of that circumstance.
In substance, the applicant submits that the judge must have sentenced on the different, and more serious basis, that he knew the parcel contained ephedrine, in light of what she said in paragraph [21]. The applicant submits that the judge’s observations in paragraph [21] take their complexion from the submissions of the applicant referred to by the judge in that paragraph.
As noted, the applicant was keen to emphasise that the jury verdict was based on recklessness rather than knowledge. To make that submission, the applicant had to deal with the WeChat messages sent by the applicant on 5 December 2016.
To recapitulate the chronology, the conduct of the applicant in the importation was completed no later than 2 December 2016 when he messaged Yu to arrange for the receipt of the parcel. On 5 December, he messaged Yu and referred to the parcel containing ‘white raw materials’. It was accepted by the applicant that, on 5 December 2016, he knew that the parcel contained a precursor. However, the applicant submitted that the judge could not be satisfied beyond reasonable doubt that he had that knowledge at the time of the commission of the offence because she could not exclude the reasonable possibility that he acquired that knowledge after 2 December but before the message was sent on 5 December.
The applicant submits that, inconsistently with what she said in paragraph [12], the judge found in paragraph [21] that the applicant knew the consignment contained a precursor at the time of importation. If, in the latter paragraph, the judge was referring to what the applicant knew on 5 December, that would have been irrelevant because knowledge acquired after the offending could not make the conduct more serious at the time it occurred.
The respondent submits that paragraph [21] does not contain a finding as to when the knowledge was first obtained, only that it was obtained by the time he sent the message referring to the ‘white raw materials’. In any event, the respondent submits that the judge was simply responding to a submission and any finding in paragraph [21] did not aggravate the offending.
In my view, the respondent’s submission must be accepted and it is not reasonably arguable that the judge made an adverse finding about the applicant’s knowledge at the time of importation, nor did she use the matters in paragraph [21] to aggravate the offending.
First, the judge unequivocally identified the basis on which the applicant was convicted. The judge did not say that she was minded to sentence on a different basis.
The reasons for sentence do not contain an express finding that the applicant knew that the parcel contained ‘white raw materials’ at the time of import. The submission, as recorded by the judge in paragraph [21], was that the applicant did not have any knowledge of an intention to use the ephedrine to make methylamphetamine. That does not reflect precisely the submission that had been made to the judge in the sense that it leaves out the question of timing. Nevertheless, the finding in paragraph [21] was that he must have known based on the message he sent. The judge did not say that the applicant knew this at the time of importation.
It is true that the after acquired knowledge would not have aggravated the offending, and might have been irrelevant, but, as the respondent submits, the judge did not say that she took this into account as an aggravating factor. The finding in paragraph [21] addressed the submission, as recorded by the judge, but did not aggravate the conduct of the applicant.
I am not persuaded the judge made the finding attributed to her or treated it as an aggravating factor.
Ground 3
The applicant submits that, having regard to the very powerful matters in mitigation, the sentence imposed was wholly outside the available range.
In his written case the applicant emphasised his prior, and subsequent, good character; the delay in the resolution of the matter; his good prospects of rehabilitation; his youth; and the increased burden of imprisonment on the applicant, including by reason of his PTSD symptoms. The applicant referred to a number of comparable cases which, he contended, demonstrated that the judge did not give proper weight to the mitigating factors.
The judge gave consideration to each of those matters. She said that she gave ‘significant weight’ to the applicant’s age at the time of the offending and accepted that incarceration would be more onerous for the applicant due to his PTSD symptoms.
Ultimately, the offence was serious. The maximum penalty was 25 years’ imprisonment and the applicant played an important role in agreeing to take delivery of the imported precursor. The use of Yu as an innocent intermediary, placing him at risk of being suspected of a significant crime, added to the seriousness of the offending.
The applicant’s individual circumstances warranted moderation, particularly his PTSD and his youth. Importantly, in respect of the former, the judge did not accept that the incidents and their aftermath contributed to his present offending.
The essential difficulty in the submission he now makes is the important role that general deterrence plays in offences concerning the importation of drugs and their precursors. Inevitably, people within the supply chain may have many factors which moderate their moral culpability. However, they have to be balanced against the need for general deterrence in respect of offending which the Parliament regards as serious and warranting a maximum penalty of 25 years’ imprisonment.
In circumstances where the applicant gets no benefit from a plea of guilty and with no evidence of remorse it is not possible to say that the sentence imposed was wholly outside the range of sentences available to the judge. A comparison with the sentences imposed in other cases[19] shows outcomes which are not dissimilar or distinguishable from that imposed in this case because in each example, the offender had pleaded guilty and was not sentenced after a contested trial.
[19]Ge v The Queen [2019] NSWCCA 41; XY v The Queen [2013] VSCA 261; R v Lamella [2014] NSWCCA 122; R v Chandler [2010] QCA 21; DPP (Cth) & DPP (Vic) v Edge [2012] VSCA 289.
The sentence is not manifestly excessive. This proposed ground is not reasonably arguable and does not warrant a grant of leave to appeal.
Conclusion
The application for an extension of time within which to file an application for leave to appeal is granted. The application for leave to appeal is refused.
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