R v Ji; R v Zeng

District Court of NSW|2024-08-16

Introduction and Offences

David Kang Ji ("Mr Ji") and Jialang Zeng ("Mr Zeng") have each pleaded guilty in the Local Court and are to be sentenced for an offence of trafficking a marketable quantity of a controlled drug, namely methamphetamine, contrary to s 302.3(1) of the Criminal Code Act 1995 (Cth) ("the Code"). The parties agree that the maximum penalty is 25 years' imprisonment ("the Drug offence").
Mr Zeng is also to be sentenced for an offence under s 400.7(1) of the Code, namely that he dealt with money that was, and that he believed to be, proceeds of an indictable crime, being $1,000 or more ($7,500 cash was found in his bedroom) ("the Proceeds of Crime offence"). The maximum penalty is 5 years' imprisonment and/or 300 penalty units.
Pursuant to s 16BA of the Crimes Act 1914 (Cth) ("the Crimes Act"), Mr Ji admits that he too committed a Proceeds of Crime offence, relating to $4,600 cash found in his vehicle. Mr Ji has asked me to take into account that offence in passing sentence on him for his Drug Offence ("the Schedule Offence").

Time in Custody

Mr Zeng and Mr Ji have been bail refused since their arrests on 2 February 2023. That time in custody is entirely referable to the matters before me and any term of imprisonment I impose will be taken to have commenced on 2 February 2023.

Governing Approach

The ultimate task is to impose a sentence "of a severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act. To arrive at such a sentence, the Court "must" have regard to the factors in s 16A(2) so far as they are "relevant and known" to the Court.
There is nothing in s 16A(2) which "suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)": Totaan v The Queen [2022] NSWCCA 75; 108 NSWLR 17 at [83] per Bell CJ. However, that does not mean that the application and weight of principles governing the exercise of the sentencing discretion, developed by Courts of Appeal and the High Court, do not apply for particular classes of offences. Of particular relevance to cases in this area, is that it has often been said that general deterrence for drug related offences is an important consideration in the sentencing exercise.

Section 17A(1) Threshold

The Court can only sentence Mr Zeng and Mr Ji to imprisonment if satisfied that no other sentence is appropriate in all the circumstances of the case: s 17A(1) of the Crimes Act. It is accepted by both Mr Zeng and Mr Ji that this threshold has been met.

Maximum Penalty

The maximum penalty for the Drug Offence of 25 years' imprisonment is the community's, through Parliament, indication of the seriousness with which the drug related offences are to be treated.
The maximum penalties for both offences allow for a comparison of the case under consideration with the worst possible case (the latter attracting the maximum penalty), together with a reminder of the fundamental seriousness of drug-related crime.

OFFENCE PROVISIONS AND SENTENCING PRINCIPLES FOR DRUG RELATED OFFENCES AND PROCEEDS OF CRIME OFFENCES

In R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, per Johnson J the well-known principles for drug-related offences were summarised. I have sought to apply those principles.
In The King v MHM [2023] WASCA 172, the Western Australian Court of Appeal, when determining a Crown appeal against the manifest inadequacy of a sentence involving trafficking a marketable quantity of methamphetamine succinctly stated: "The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the Offender's participation in drug dealing or trafficking, within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an Offender will almost always be subsidiary considerations, but they are not completely irrelevant."
The last sentence in the above quote is not to be understood as imposing a hierarchy of factors, that would be contrary to well established authority to which I have referred and as a matter of statutory construction must be wrong, rather it is an acknowledgement that it is commonplace in these types of matters for offenders to present with strong subjective cases and there is a need to not lose sight of the other important factors, not the least being general deterrence.

proceeds of crime offences

Section 400.7 of the Code is part of a hierarchy of offences referred to as 'money laundering' offences contained in Division 400 of the Code. To receive the proceeds of crime is a standalone offence which needs to be considered separately from the crime itself that produced the proceeds.
That being said, in this case, it seems to me that the Proceeds of Crime Offences, both the charged offence, and the s 16A(2) offence are so inextricably connected to the Drug Offences as to not add much at all to the overall criminality involved.

Section 16A(2) Matters

Turning then to the factors enumerated in s 16A(2), which to my mind have relevance to this case.

Injury, loss, or damage resulting from the offences - s 16A(2)(e)

Drugs disseminated into the community cause significant harm, not just to individuals within the community, but to the community as a whole: Ngo v R [2017] WASCA 3 at [63].

Specific deterrence, general deterrence, and adequate punishment - s 16A(2)(j), (ja), and (k)

Dealing first with general deterrence, I accept that neither Mr Ji nor Mr Zeng were anywhere other than near the bottom rung of the ladder of the people involved in the distribution of the drugs in question and that, relative to the significant penalties for the offences, the amount of money they stood to receive as a result of their involvement was poultry. That being said, there remains a significant need for a strong message to be consistently sent to the community that to get involved in such criminal activity is simply not worth the risk. Whilst there will always be the attraction of quick and apparently easy money, the consequences upon being caught are and are intended to be stern and it is important for anyone tempted by the lure of what they may think is easy money to understand the significant penalties involved: see for example R v Chen [2022] 130 Crim R 300 at [382]
As to specific deterrence, for reasons I will come to, I think the prospects of either Offender re-offending here are low. In part this is a result of the lengthy period the Offenders have already spent on remand. None the less, it is an important factor.
Turning then to the requirement in s 16A(2)(k), it is fundamental that ultimately the sentence I impose represents "adequate punishment for the offences", which in context is another way of saying that even in the strongest subjective cases, there remains a demand for significant punishment commensurate with the criminality.

Guilty pleas - s 16A(2)(g)

Each of Mr Zeng and Mr Ji entered a guilty plea at the earliest opportunity. This was in the context of them both making full and frank admissions when confronted by the police with their alleged offending.
Unlike the position in New South Wales, there is no mandated discount for the "utilitarian value" of the guilty pleas. The authorities make it clear that it will often be appropriate in the circumstances of a particular case to apply the discount available under the state legislation: Bae v R [2020] NSWCCA 35 at [52].
In this case, I do not see any reason why I should not apply the 25% discount that would be available under the State legislation for offenders who entered guilty pleas in the Local Court at the first available opportunity. I propose to do so.

Contrition - s 16A(2)(f)

On the evidence and the objective facts, which include but are not limited to the full and frank admissions made by the Offenders, together with their guilty pleas, I am satisfied that each of Mr Zeng and Mr Ji have shown significant contrition, remorse, and insight into their offending.
It is true, as the Crown pointed out in submissions, that the plea of guilty was in the face of what then would have appeared to be an overwhelmingly strong Crown case. However, that Crown case's strength was very much dependent on the full and frank admissions that had been made by the Offenders.
Ultimately, in the context of this case, the critical relevance of contrition, remorse, and insight feeds into the important consideration of risk of reoffending. I have concluded that, in relation to both Mr Ji and Mr Zeng, there are low prospects of either reoffending.

The degree of cooperation - s 16A(2)(h)

Both Offenders were cooperative with the investigative authorities, and as I have said, provided full and frank admissions at the police station at the first opportunity.

Character, antecedents, age, means, and physical or mental conditions - s 16A(2)(m)

Dealing firstly with Mr Zeng.
He was 32 years of age at the time of the offending. Beyond the current matters, he has no prior criminal convictions and is a person of good character.
He was born in the Fujian province, China, and was raised in a stable and nurturing middle class family. At the age of 18, he moved to Australia to study. Academically, despite excelling in China, he struggled in Australia because, at least in part, his English was poor.
He has a relatively consistent employment history in Australia in various industries. Since 2020, he worked principally in construction as a labourer, however payment of his wages was, at times, inconsistent which caused financial stress.
Compounding the financial stress, in the months preceding January 2023, his partner fell pregnant, and the associated medical expenses were difficult to manage. He has acknowledged that the financial stress he was experiencing in the lead up to the offence was the significant contributing factor.
After Mr Zeng arrived in Australia, he was subject to sexual abuse, coercion, and manipulative conduct by a man named Ken, who he met when he was living with a homestay family. Clinical psychologist Mr Andrew Wong described the effects of this conduct as "highly traumatising" and concludes that Mr Zeng demonstrates the "hallmarks of a traumatic disorder, involving intrusive memories, hypervigilance, excessive startled response, significant avoidance behaviours, including gaming and social withdrawal, disproportionate guilt and shame and low mood". Mr Wong considers these symptoms to be consistent with a diagnosis of post-traumatic stress disorder.
Taking those matters into account, it does seem to me that Mr Zeng can be considered as a relatively inappropriate vehicle to send a message of general deterrence.
Dealing next with Mr Ji.
At the time of the offending, he was 28 years old.
He has no prior criminal convictions. He will be sentenced on the basis that he is a person of prior good character.
He was born in China and moved to Australia with his mother in about 2009, he was 15 years old. His parents separated prior to moving to Australia. His biological father died from pancreatic cancer in 2016. His mother is his only family in Australia.
Mr Ji had a lot of difficulty adjusting to life in Australia due to language barriers and the impact that had on forming friendships and his education. He had only a limited group of friends, who were all Chinese. After finishing high school, he enrolled in a Diploma of Economics at Macquarie University, however, he withdrew from the course in around 2012 because his mother could not afford the tuition fees.
His mother, Chengcheng Wu, remarried in Australia. That relationship was marred with domestic violence, including violence towards him by his stepfather in around 2021. Mr Ji's stepfather suffered from mental health issues. His mother separated from the Mr Ji's stepfather in around 2022. While they were married, his stepfather would contribute financially, however, this stopped once they separated.
Mr Ji started working in construction after leaving university. He would contribute to the household while his mother worked long hours.
Just prior to his arrest, Mr Ji was unemployed and was the principal carer for his mother who has suffered significant physical and psychological injuries from a bicycle accident in September 2022. As a result, both he and his mother started having significant financial difficulties.
Mr Ji's mother continues to suffer from ongoing complications from her injuries and has reached 'maximum medical improvement'. Dr Abdal Khan, Consultant Psychiatrist, has diagnosed Mr Ji's mother with post-traumatic stress disorder, major depressive disorder, and 'mild neurocognitive disorder due to a traumatic brain injury'. Dr Khan also opines that Mr Ji's mother suffers from ongoing 'pervasive symptoms of trauma, depression, and anxiety as well as enduring cognitive impairment, which negatively impacted on her functioning in the domains of self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and adaptation'.
Mr Ji's mother is unable to work due to her injuries and "is likely to remain totally incapacitated to work for the foreseeable future". Dr Khan is of the opinion that that this is due to the "ongoing impact of her psychiatric/psychological injury".
Mr Ji's mother has had some assistance from neighbours and friends since her son was remanded, however, she says that 'it has been incredibly difficult to adapt to life without my son' and that "I need him to look after me''. Mr Ji has had weekly contact with his mother since being in custody. His mother continues to support him and will support him upon his release into the community.

Prospects of rehabilitation and likelihood of reoffending - s 16A(2)(n)

For reasons I have already explained, I have concluded that the prospects of either Mr Ji or Mr Zeng reoffending are low and that, to the extent rehabilitation is possible, it has already occurred as a consequence, amongst other things, of their arrest and significant period already spent in custody, together with the significant contrition, insight, and remorse which I have identified.

The probable effect on family - s 16A(2)(p)

Both Mr Zeng and Mr Ji have made powerful submissions as to the consequences of their sentence on family members.
I have set out in detail the position of Mr Ji's mother already. His arrest and incarceration to date has caused his mother significant and profound adverse consequences. In a similar, but not precisely the same vein, Mr Zeng's wife has been disadvantaged by the time he spent in custody.
The only difference in relation to the two Offenders in this regard is perhaps that the ongoing effect on Mr Ji's mother is greater than the effect on Mr Zeng's family, but I do not think in the context of consideration of the two matters, where various matters in relation to each Offender have to my mind slightly different weights, sometimes in their favour sometimes against them, that this difference is sufficient on its own to justify a different result between the two Offenders. Whilst I consider the impact on Mr Ji's family to be more significant than Mr Zeng's, I consider the psychological issues suffered by Mr Zeng as a result of his trauma as explained by Mr Wong to be a factor not to be found in Mr Ji's case. Each of these factors in their own way weighs in favour of each Offender, but in a way which I think balances out between them.

objective seriousness and moral culpability

When one considers this example of offending against other examples, I do think that the objective seriousness of all the offending before me is very much towards the lower end of what might be described as a scale. The Crown takes no issue with this conclusion.
As to their moral culpability, each of Mr Ji and Mr Zeng knew what they were doing was wrong. They obviously did what they did to obtain financial gain in circumstances where, for various reasons, they were both struggling financially. Whilst, on the agreed facts, the offending cannot be described as some sort of one-off aberration, the fact is they are both persons of otherwise good character and I proceed on the basis that the offending and surrounding conduct was not consistent with their general character and was driven by the desperate financial situation they each found themselves in. That is no excuse for the crimes but is a reasonable explanation.

Comparable cases

It is important in Commonwealth matters to seek to achieve consistency across the nation in relation to sentencing.
The Crown has put before me a series of cases which were said to be of some assistance: Nguyen v R [2010] NSWCCA 132; Ban Joo Teoh v R [2018] VSCA 239; Duong v DPP (Cth) [2021] VSCA 136; R v Hidalgo Ruiz [2020] VCC 1473 ("Hidalgo Ruiz"); The King v MHM [2023] WASCA 172 ("MHM"); R v Liang Xin [2009] VSCA 18.
Every case is different, and it is impossible to safely compare the result in any one case against the result of any other.
However, the case of Hidalgo Ruiz in the Victorian County Court and the decision of MHM in the Court of Appeal in Western Australia (albeit acknowledged by the Court to be very much at the low end of what might be expected) seem to me to give some guidance as to an outcome that will maintain consistency in sentencing.

Consideration

It goes without saying that there are differences at every level between the objective conduct of and subjective cases of Mr Ji and Mr Zeng. However, I think such differences as there are point in different directions and I have decided that it is appropriate that they each receive the same sentence. I say this notwithstanding the fact that Mr Zeng has been charged with the proceeds of crime matter, whilst Mr Ji has asked to have that offending taken into account. I think in the context of the matters before me, that distinction does not amount to a relevant difference.
Moreover, as I have already said, I think the Proceeds of Crime Offences are so entangled with the Drug Offences so as to add nothing of significance to a consideration of the overall criminality involved. After all, it is an agreed fact for the Drug Offences that each of Mr Ji and Mr Zeng did what they did for financial gain, and so the fact that they were caught with some money, being that financial gain, adds nothing to the overall criminality and I think to take it into account separately would risk double counting and could well result in a sentence disproportionate to the criminality.
Taking into account the objective seriousness of the offending, but also the very strong subjective cases presented by each Offender, including this being their first offence, the full and frank admissions they gave to police, the early pleas of guilty, the expressions of contrition and remorse which I accept, Mr Zeng's mental health issues, and the profound effect on their family members, in particular to Mr Ji's mother, after deducting 25% for the pleas of guilty, I have concluded that the appropriate head sentence for each Mr Ji and Mr Zeng in relation to the Drug Offence is three years imprisonment.
I have taken into account, as placing upward pressure on that conclusion, in respect of each of Mr Zeng and Mr Ji the Proceeds of Crime Offence.
In relation to Mr Zeng, I impose a sentence of one year imprisonment for the Proceeds of Crime Offence but have determined that it should be served wholly concurrently with the Drug Offence. This means his aggregate head sentence will be 3 years imprisonment.
Accordingly, I have decided that each of Mr Zeng and Mr Ji should receive a head sentence of three years imprisonment.
There is then a question of what proportion of that time ought be served in the community. The most important consideration being what will more assist the rehabilitation and reintegration into the community of each Offender. In Commonwealth offences there is no fixed starting point. I have decided that, in all the circumstances, the period on parole should be one third of the head sentence.
What that means is that I have concluded that each of the Offenders ought be sentenced to a term of three years imprisonment, to commence 2 February 2023, and expire 1 February 2026.
The period to be served before becoming eligible for parole is to be two years, to also commence 2 February 2023 and expire 1 February 2025.

Jialang Zeng 1. For sequence 2, I sentence you to a term of imprisonment of three years to commence 2 February 2023 and expire 1 February 2026. 2. For sequence 3, I sentence you to a term of imprisonment of one year to also commence 2 February 2023, which I note expired on 1 February 2024, my intention being that the sentences for sequence 2 and 3 be wholly concurrent. 3. I sentence you to an aggregate term of imprisonment for Sequences 2 and 3 of three years imprisonment to commence 2 February 2023 and expire 1 February 2026. 4. The first day you will be eligible for parole is 1 February 2025.

David Kang Ji 1. For sequence 3 and having taken into account the matter under s 16BA, you are sentenced to a term of imprisonment of three years to commence 2 February 2023 to expire 1 February 2026. 2. The first date you will be eligible for parole is 1 February 2025.

As to both Offenders

By consent, I order: 1. Pursuant to subsection 48(2) of the Proceeds of Crime Act 2002 (Cth), in respect of the conviction of Jialang Zeng, the sum of $7,500 in Australian currency seized by the Australian Federal Police from the residence of Jialang Zeng on 2 February 2023, and presently held by the Australian Federal Police, is forfeited to the Commonwealth. 2. Pursuant to subsection 48(2) of the Proceeds of Crime Act 2002 (Cth), in respect of the conviction of David Kang Ji, the sum of $4,600 in Australian currency seized by the Australian Federal Police from a vehicle occupied by David Kang Ji when stopped and searched at Queens Park in New South Wales on 2 February 2023, and presently held by the Australian Federal Police, is forfeited to the Commonwealth.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2024

Crimes Act 1914(Cth)s 16A(1)

Criminal Code Act 1995(Cth)s 302.3(1)

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