DPP v Lye [2024] VCC 1762

1. At the time of your offending, you were living in an apartment in Queensbridge Street, Southbank, and were also known by the nickname 'Jack'. You were born in June 1985 and were 36 years old at the time of your arrest. You have no prior criminal convictions.

1. The circumstances of your offending are as follows.
2. Charge 1 relates to your attempt to traffic a large commercial quantity of 1,4- Butanediol across seven separate consignments between 10 May 2021 and 30 November 2021 totalling 74.8 kilograms, comprised as follows:
   • On 12 July 2021, the Victorian Major Drug Squad received notification from the Australian Border Force ('ABF') that a consignment from China had been seized at the Melbourne Gateway Facility on 9 July 2021. The consignment consisted of a large white container and was declared as 'Articles for daily use'. The consignment was addressed to a 'Denglong Feng' of 360 Collins Street, Melbourne. WeChat messages located on your phone included shipping details received on 12 May 2021 from an individual identified only as 'Joker' for this package. Subsequent analysis confirmed the container held 1,4-Butanediol weighing 13.0213 kilograms.
   • The police also received notification of another consignment addressed to a 'Shuyi Zhen' at 360 Collins Street, Melbourne, that was seized at the Melbourne Gateway Facility on 9 July 2021, also marked as 'Articles for Daily Use' with a mobile phone number ending 240. WeChat messages located on your mobile phone included the shipping details received from 'Joker' on 10 May 2021, followed by a further message containing the mobile phone number listed on the consignment label. Subsequent analysis confirmed the container held 1,4-Butanediol weighing 13.0218 kilograms.
   • On 10 February 2022, the Victoria Police Major Drug Squad received notification from the ABF of a consignment seized at the Melbourne Gateway Facility on that date. The consignment was declared as 'Dry foods, snacks, articles for daily use' and was addressed to 'Denglong Feng', at a parcel locker in Park Street, South Melbourne. The consignment tested positive for 1,4-Butanediol and contained 10.797 litres in total, weighing 10.116 kilograms.
   • On 16 March 2022 at approximately 8.00 am police attended an outlet of Australia Post at 100 Market Street, South Melbourne, to execute a search warrant. The police seized four parcels, each labelled as 'Dry foods, snacks, articles for daily use'. The parcels were addressed to parcel lockers in South Melbourne and Southbank with contact numbers registered in the names of others, with two of the mobile phone numbers registered to your address. The contents of the four parcels were subsequently analysed and found to contain 9.685 kilograms, 9.667 kilograms, 9.354 kilograms AND 9.954 kilograms respectively of 1,4-Butanediol.
3. On 7 December 2021, the police executed a search warrant at your Southbank apartment, where you and another male resided. An Apple iPhone was seized from your bedroom. Investigators subsequently analysed the iPhone, locating messages in Mandarin and English in the WeChat application linking you to the supplier named 'Joker'. Many of the messages contained details regarding the seven consignments which form part of Charge 1. The police also located PDF images relating to the seven consignments, together with various Australia Post applications connected to the parcel lockers on the phone.
4. Also located on the phone was an encrypted application, Signal, containing messages to a person named 'Selina' which referred to the collection of a consignment in the name of 'Denglong Feng' and related driver's licence details with you instructing 'Selina' how to collect the consignment.
5. Charge 2, trafficking in no less than a commercial quantity of 1, 4-Butanediol, arises from the analysis of the liquid substances found in a Fanta bottle, a blue plastic carboy and a glass measuring jug seized from your apartment on 7 December 2021. The liquid in each of these items was found to be 1, 4- Butanediol, with the Fanta bottle containing 1972.9 grams, the plastic carboy containing 5034 grams and the glass jug containing 3.4 grams. The total weight of the 1,4-Butanediol seized from your apartment was just over seven kilograms, which is 3.5 times the commercial quantity of that drug.
6. The police also located messages on the Signal application passing between you and a person named 'CC' on 22 November 2021, in which you discussed the sale of 1,4-Butanediol. Amongst other messages, you wrote to 'CC' stating, 'How many lit u wan to business?', to which 'CC' replied, 'Just a L'. You wrote, 'Now 1 left 2Lit only', to which 'CC' replied, 'How much'. You wrote, 'I sell them is 4k a lit'. You later asked 'CC', 'U need how many lit', to which 'CC' replied, 'Just 1'. You wrote, 'Jus say 5?' 'CC' responded, 'I have now', and you wrote, 'new parcel come'.
7. It is the prosecution case that you imported illicit substances into Victoria through a person only identified as 'Joker' using an encrypted WeChat application and that with various associates you were actively trafficking 1,4-Butanediol in Victoria. By way of context to the offending with which you are charged, you were in possession of personal identification information utilised to import illicit substances in Victoria dating back to 29 September 2020 and had sold methylamphetamine to a client on 21 October 2020.[2]

1. I turn now to your personal circumstances.
2. You were born in Malaysia and are now 39 years old. You have two younger sisters, one of whom works as a sales manager and the other as an accountant. Your mother cared for you and your siblings as you grew up. Your father was a building manager who worked in construction. Your father passed away two years ago.
3. You completed the equivalent of Year 9 when you were 17 years old and then left school to commence an apprenticeship as a mechanic, qualifying when you were 24 years old. You lived for a period in Singapore where you started a car detailing business. It was in Singapore that you met the mother of your four children. Your relationship ended when your partner met someone else. After a period, your business also failed, leaving you with debts exceeding $1m.
4. You have four daughters living in Malaysia aged between 12 and 18 years. The eldest lives with your mother in Malaysia to care for her, the remainder live with their mother.
5. You came to Australia for a holiday in 2017 and stayed. You unsuccessfully applied for a student visa, then applied for a refugee visa approximately four years ago due to physical threats you report receiving from people in Malaysia that you owe money to as a result of your failed business venture. You have not received notice of the outcome of that application and are currently on a bridging visa.
6. In Australia you initially worked as a fruit picker in Shepparton, then as an Uber Eats delivery driver. At the time of your arrest, you were also cleaning houses.
7. You have a girlfriend who lives in Melbourne. You hope to become a permanent resident to remain with her.
8. At the time of your arrest, you were an occasional user of methylamphetamine and had a problem with alcohol and gambling.

1. A number of matters were raised on your behalf in mitigation of your sentence.
2. First and foremost, you pleaded guilty to these offences and in doing so acknowledge responsibility for your offending. The matter resolved on the first day scheduled for trial after accepting the sentence indication given by me on 6 August 2024. Notably, you were not legally represented at the time of the committal hearing. Fairly, the prosecution accepts that yours is an early guilty plea that was entered once you were afforded an opportunity to obtain appropriate legal advice and upon other charges being withdrawn.
3. There is significant utility in your guilty plea as it saved the court and the community the resources associated with a reasonably complex trial.
4. You are entitled to a significant sentencing discount for having pleaded guilty to these offences.
5. Secondly, at the time of the offending you had no prior criminal history and are entitled to have your previous good character reflected in the sentence I impose.
6. Thirdly, your time in custody since your arrest has been difficult for a number of reasons. Firstly, you have little family in Australia and your personal visits are limited. Your daughters had regular video contact with you until you went into custody. As a non-citizen, you face the realistic prospect of deportation as a result of your offending. I accept that your experience of custody is made more onerous by a sense of isolation, loss of contact with your children and a concern about your risk of deportation. I have taken the added burden of your imprisonment into account in moderation.
7. Finally, you are entitled to have some of your previous time in custody recognised in a broad way under the principles enunciated in the case of R v Renzella[3].
8. You were remanded on these matters on 9 December 2021 before being granted bail on 15 December 2021.
9. You were subsequently remanded on other Indictable and summary dishonesty offences on 23 March 2023. On 30 June 2023 you were sentenced to 60 days' imprisonment, being time already served for this subsequent offending. You were then subject to a warrant on other indictable charges on 1 July 2023 before being released under that warrant on 15 December 2023. The prosecution accepts that you spent 201 days detained in custody under that warrant charged with offences for which you were not sentenced. I have taken this additional time in custody into account in further moderating your sentence.

1. The inherent seriousness of the offences of attempting to traffic in a large commercial quantity of 1,4-Butanediol and trafficking in a commercial quantity of that drug is reflected in the maximum penalties of 25 years' imprisonment fixed by Parliament for these offences.
2. The quantity of illicit drugs involved is a significant sentencing consideration, although it is not determinative. The sentencing regime for trafficking in drugs of dependence makes it clear that other things being equal the greater the quantity of illicit drugs trafficked, or attempted to be trafficked, the more serious the offence. However, that is not the only relevant sentencing consideration. The court will also have regard to other indicators including the offender's role, the duration of the offending and the motivation for the offender's involvement.[4]
3. Based on these considerations, yours is a serious example of attempting to traffic in a large commercial quantity of 1,4-Butanediol. You attempted to do so across seven separate consignments between 10 May 2021 and 30 November 2021, in a total of 74.8 kilograms. The threshold for a large commercial quantity of 1,4- Butanediol is 20 kilograms. You attempted to traffic in four times that quantity over a six-month period.
4. This was reasonably sophisticated, planned offending, aimed at avoiding detection. The consignments consisted of plastic containers declared as benign articles using false contact details. Analysis of the messages contained on encrypted applications on your iPhone are consistent with your role in arranging or facilitating these importations at the direction of the individual identified as 'Joker'. You also directed the involvement of others in the trafficking business, including arranging another person to collect the consignment and instructing them how to do so using false driver's licence details.
5. The charge of trafficking in a commercial quantity of 1, 4-Butanediol relates to your offending on a single day, 7 December 2021, based on your possession of just over seven kilograms of this drug in various containers found at your apartment when the police executed the search warrant. As stated, a commercial quantity of 1,4-Butanediol is two kilograms, and you possessed more than three times that amount. In addition, the messages located on your encrypted Signal application revealed discussions with an unknown person 'CC' in which you discuss the sale of 1,4 Butanediol for '4K a lit', which your counsel accepts is a reference to $4,000 per litre of that drug.
6. Your counsel conceded that the nature and the extent of your offending precludes a conclusion that you engaged in this illegal activity to support your own drug use. I am satisfied you engaged in this offending motivated by the lure of profits to be made from the trade in 1,4-Butanediol, which I accept is less than other drugs of dependence.
7. The principles of general deterrence and denunciation are highly relevant sentencing considerations in cases involving large scale drug trafficking or attempting to do so. The protection of the community is also a paramount consideration given the harm caused by the trade in illicit drugs such as 1,4- Butanediol, which, when ingested, is rapidly absorbed and metabolises to form GHB.
8. Those who facilitate or arrange the importation of illicit drugs play a critical role in any drug trafficking enterprise, even where they are directed by others. Others must be deterred by the sentence I impose from participating in any aspect of the drug trade.
9. Given the gravity and duration of your offending conduct and noting your subsequent conviction on 15 December 2023 for the offences of trafficking in ketamine, trafficking in methylamphetamine and committing an indictable offence whilst on bail, for which you were sentenced to seven days' imprisonment, specifically deterring you from future offending, is also a relevant consideration, although I accept that your experience of custody will have a salutary effect, particularly for a person experiencing their first time in custody.
10. Notwithstanding the seriousness of this offending and the key role you played in the importations of 1,4-Butanediol in 2021, I assess you have reasonable prospects of rehabilitation given your lack of criminal convictions until your late 30s.
11. Your counsel referred me to the sentences imposed on other offenders broadly involved in the same illicit drug trafficking business for the purpose of applying the sentencing principle of parity. However, on close analysis, the other offenders played a far less significant role in the offending than yours.
12. Zheqi Hu pleaded guilty in July 2023 to a charge of trafficking in a commercial quantity of drug of dependence arising from his role when he was captured on CCTV footage leaving your Southbank apartment with a carboy containing 10 kilograms of 1,4-Butanediol on 30 November 2021. The sentencing judge accepted that he had no knowledge of your wider trafficking operation and received no financial reward for his involvement. He was 24 years old at the time of the offending and had no prior criminal convictions and nothing pending. His admissions were important in establishing the prosecution case against him. For this offending he was sentenced to two years' imprisonment.
13. Nyett Lung Wee, who lived with you in the Southbank apartment at the time the search warrant was executed, pleaded guilty to one charge of trafficking in a drug of dependence and other offences, including possessing false documents and negligently dealing with proceeds of crime.
14. The sentencing judge accepted that Mr Wee's role was limited to transferring liquid from one container to a bottle, knowing that it was for onward sale and being paid between $150 to $300 to produce false identification documents. He did not obtain any other financial benefit from his involvement and had no knowledge of your wider criminal enterprise. Mr Wee was sentenced to 18 months' imprisonment on the charge of trafficking in a drug of dependence and a total of one year, 10 months' imprisonment on all offences.
15. Ms Rowlatt received a combination sentence of 409 days' imprisonment and a three-year community correction order for her offending, with the sentencing judge describing the sentence as 'merciful' having regard to her personal circumstances including delay and participation in a residential drug rehabilitation program.
16. While these sentences inform the range of sentences imposed on others with a lesser involvement in the trafficking enterprise, they do not enliven the sentencing principle of parity for two reasons. Firstly, you are being sentenced for two different offences, each carrying a maximum penalty of 25 years' imprisonment. Secondly, your role in the trafficking enterprise was a significant one: you played a critical and directing role and did so motivated by the prospect of financial reward. For these reasons the sentence I impose on you must clearly distinguish the more serious criminality of your offending.
17. On your behalf I was referred to a number of comparable cases, to which I have had regard. Notably, in the case of Fatho,[5] the Court of Appeal discussed the trend of lower sentences being imposed for those dealing in drugs such as 1,4- Butanediol and GBL, citing an earlier decision in DPP (Cth) v Maxwell,[6] where the court stated that: 'The lower sentences imposed on importers of GBL could be seen to be 'reasonably justified by the enormous reward differential' compared to importations of other drugs'[7].

1. Balancing the matters to which I have referred while guided by the maximum penalty for the offences, I sentence you as follows.
2. On Charge 1, attempted trafficking in a large commercial quantity of a drug of dependence (1,4-Butanediol), you are convicted and sentenced to four years' imprisonment. This is the base sentence.
3. On Charge 2, trafficking in a commercial quantity of a drug of dependence (1,4- Butanediol), you are convicted and sentenced to three years' imprisonment.
4. I direct that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
5. This gives a total effective sentence of four years, six months' imprisonment.
6. I fix a non-parole period of two years, nine months' imprisonment before you are eligible for parole. In fixing this non-parole period I have had regard to the Renzella time to which I have referred.
7. Pursuant to s18 of the Sentencing Act 1991, I declare 206 days of pre-sentence detention as served by you under the sentence I have imposed.
8. Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences the sentence I would otherwise have imposed is a sentence of seven years' imprisonment with a non-parole period of five years.
9. Finally, I make the disposal and forfeiture orders sought by the prosecution, noting that they are not opposed.

[1] Sentence Indication given on 6 August 2024

[4] Gregory v The Queen [2017] VSCA 151.

[5] DPP v Fatho & Ors [2019] VSCA 311

[6] [2013] VSCA 50