IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-23-00095 

DIRECTOR OF PUBLIC PROSECUTIONS		
(CTH)
		
v		
		
YANG LIU		

---

JUDGE:	HIS HONOUR JUDGE HOLDING	
WHERE HELD:	Melbourne	
DATE OF HEARING:	13, 16 December 2024	
DATE OF SENTENCE:	30 January 2025	
CASE MAY BE CITED AS:	DPP v Liu	
MEDIUM NEUTRAL CITATION:	[2024] VCC 34		

REASONS FOR SENTENCE
---

Subject:			Criminal Law	
Catchwords: 			Conspiracy; Border Controlled Drug; Methamphetamine; 		Commercial Quantity.	
Legislation Cited:			Crimes Act 1914 (Cth)
Cases Cited:			Tyler v R (2007) 173 A Crim R 458
Sentence:			Convicted and sentenced to 9 years' imprisonment;6 years 		non-parole period

---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms R. Barry (plea)
Ms G. Mattea (sentence)
	CDPP 	
			
For the Accused	Mr N. Zheng	Fumens Lawyers	

HIS HONOUR:

1	Yang Liu, on 21 November 2024, after a trial lasting eight days, a jury found you guilty of conspiracy to import a commercial quantity of a border-controlled substance.
2	The maximum penalty for this offence is life imprisonment.
3	In order to explain my reasons for sentence, it is not necessary for me to recount all the details of this conspiracy and the roles played by all those involved.  It is agreed by the prosecutor, Mr Barry, and your defence counsel, Mr Edney, that the sentencing principle of parity requires a comparison of the role you played in this syndicate with the role played by another member of the syndicate, Mr Chenghao Sun. Mr Sun was sentenced by Judge Chettle on 18 September 2024.  A detailed recitation of the features of this syndicate are set out in the Prosecution Opening that was tendered at Mr Sun's plea hearing.  That Opening was also tendered in your plea hearing ; the description of the roles and actions performed by you and your co-conspirators as detailed in that Opening is consistent with the way your case was opened to the jury and the evidence led in your trial.
4	The aim of the conspiracy was to take delivery of a consignment in which drugs were hidden. The consignment was intercepted in the United States in March 2022, before it was sent to Australia. The documents associated with the consignment falsely stated that it contained LED lights. Concealed within those light fittings, was 27.07 kilograms of pure methamphetamine. Authorities in the US removed the methamphetamine before the consignment was repackaged and sent to Australia. Obviously, the criminal acts that were performed by you and others involved in the conspiracy, occurred in circumstances where none of you were aware the drugs had been removed from the consignment before it reached Australia. 
5	The consignment arrived in Melbourne on 25 March 2022. It was handled by a custom's brokerage firm called Outside the Box Logistics (OTB).  Your role was to contact OTB and enquire what was necessary in order to move the consignment on, so that it would ultimately reach others involved in the syndicate.
6	An employee of OTB, Mr Krammer, gave evidence in your trial of a phone call that you made on 1 April 2022, in which he spoke with you. It was not in issue that you made this phone call because of instructions you received from another 
co-conspirator, Mr Jacky You. The issue in your trial was whether you made this phone call believing the consignment contained a border-controlled drug. The verdict indicates that the jury was satisfied beyond reasonable doubt you had such a belief.
7	The prosecution case was that Jacky You was originally instructing Mr Sun to make these arrangements with OTB.  Jacky You became concerned when Mr Sun was not responding in a timely way to his instructions.  It was in that context that Jacky You sent the following message to you on 28 March 2022:
Want to take a big job? Today. These two days. Not risky, all has been liaised, that person is sleeping, couldn’t wake him/her up. Call the customs clearance company and ask when can delivery take place, whether it can be collected by ourselves, if not, whether the address can be changed and have it delivered to your home. It’s a box of LED lights. A pallet. I’ll get somebody to take it away within a day. It’s a big job. Not cheap. Already cleared out of customs. It’s already in their company’s warehouse. The kid isn’t picking up the phone, been playing games the whole night last night. There’s not much issue now. 
8	The reference to 'the kid isn't picking up the phone' is consistent with other messages sent by Jacky You to Mr Sun where Mr Sun fails to respond.  The evidence was that you then made two phone calls to OTB on the afternoon of 
29 March 2022. Neither of these phone calls were answered.  As to the phone call you made on 1 April 2022, Mr Krammer's evidence was that he asked you if you were 'Max' to which you answered positively, and that you wanted to know when the consignment would be ready for collection.  You had a degree of frustration in your voice, and Mr Krammer told you that OTB were waiting on payment.  You said to Mr Krammer that you would call him back.
9	It is not in dispute that you took no further action in relation to this consignment as Mr Sun then re-engaged with Jacky You and took over negotiations with 
Mr Krammer.  Mr Sun telephoned Mr Krammer about two hours after your phone call on 1 April 2022 and continued to make arrangements concerning the consignment.
10	Mr Sun was sentenced by Judge Chettle in respect of a charge of attempt to import a commercial quantity of a border-controlled drug.  Mr Sun, after making arrangements with Mr Krammer and Jacky You, attempted to drive to OTB on 1 April 2022 to collect the consignment.  He was unable to collect the consignment as others in the syndicate had already collected it.
11	Neither the prosecution nor your counsel submitted that Mr Sun's plea of guilty to a charge of attempted importation, as opposed to a charge of conspiracy, made any difference in applying the principle of parity when considering the sentence that you should receive compared to the sentence imposed on Mr Sun.  Although the prosecution tendered a helpful table of comparable sentences for this type of offending, both parties submitted that the principle of parity in sentencing, as between yourself and Mr Sun, was the predominant sentencing consideration in determining the sentence you should receive.  The prosecutor, Mr Barry, submitted that the application of that principle should result in you receiving a longer sentence than imposed upon Mr Sun.  Mr Edney, to the contrary, submitted your sentence should be shorter than the sentence imposed on Mr Sun.
12	Before turning to the respective submissions of the parties, it is agreed that I am required to sentence you in accordance with part 1B of the Crimes Act 1914 (Cth).  I must impose a sentence that is of a severity appropriate in all the circumstances of the offence.  I must have regard to the matters listed in s16 A(2) of that Act that are relevant and known, and to any other relevant circumstance.  I also note that the Prosecution's written submissions helpfully summarise principles applicable to sentencing for Federal drug offences.  Without reciting all of those principles, it is clear that this is a serious instance of offending.  The amount of drug involved is a highly relevant factor in determining the objective seriousness of the offence.  The amount here was more than 36 times, or 36 times the commercial quantity. General deterrence is a predominant sentencing consideration given the difficulty in detecting this type of offending and the potential harm caused to the community as a consequence of this type of offending.  Stern punishment is usually imposed for this type of crime.
13	It was not submitted by your counsel that the sentence imposed on Mr Sun of nine years' imprisonment with a non-parole period of six years in any way infringed relevant sentencing principles or was manifestly excessive.  It was a comparison between the features of your case and Mr Sun's case that was the focus of your counsel's submissions.
The submissions of the parties
14	The written 'Crown Submissions For Plea' are comprehensive and helpful.  I have read those submissions carefully and taken the matters referred to into account.  I accept that the Comparative Sentencing Schedule that accompanied the submissions provides helpful guidance regarding current sentencing patterns for this type of offending.  
15	Although the submissions refer to the relevant sentencing factors pertaining to the other co-conspirators sentenced by Judge Dalziel, the prosecutor submitted that your circumstances were most appropriately compared with the circumstances of Mr Sun.  It was submitted that, although Mr Sun performed more physical acts and participated in the conspiracy for a longer period of time, your role and Mr Sun's roles were the same; the significant point of difference that required you to receive a longer sentence was that you pleaded not guilty, whereas Mr Sun pleaded guilty.
16	In order to assist in the comparison between yourself and Mr Sun, the prosecution tendered a written document, Exbibit D, referred to as a 'Ready Reckoner', that summarised relevant features of conduct, and matters personal, pertaining to both you and Mr Sun.  The most significant features of difference relating to the conduct performed in the offending is the time period of the offending and what might be described as the number and type of acts committed by each of you.  Mr Sun participated in the conspiracy for four and half weeks, communicated with the freight forwarder 12 times, signed an authorisation letter, provided his driver's licence as identification, and used a false email account to send documents to the freight forwarder.  He performed 'overt acts' over eight days as opposed to you performing such an act over four days. As already mentioned, Mr Sun agreed to pick up the consignment, and made a failed attempt to do so.
17	The prosecution emphasised that in terms of 'the scope of the specific agreement' the subject of the conspiracy, Mr Sun and you agreed to perform essentially the same role; both of you agreed to communicate with the freight forwarder and make arrangements for delivery of the consignment.  Mr Barry met the argument of your counsel that you became involved only when Mr Sun failed to respond to Jacky You by emphasising that you were already a trusted member of the syndicate, and that such a big job would only be assigned to such a trusted member.  Mr Barry pointed to messages from Jacky You suggesting that you take over all the big jobs.
18	As to the more extensive 'conduct' engaged in by Mr Sun, the prosecution relied upon the authority of Tyler v R and the statement of principle in that case that:
 … it would be quite artificial, and contrary to the very concept of a conspiracy to dissect with precision the physical acts of each of the conspirators and to sentence that conspirator for those acts alone.  That would be a negation of the complex inter-connection between the various participants and the complex inter-connection between the various participants.
19	In terms of matters personal to you both, there was really no dispute by your counsel that while neither of you have prior convictions, the evidence revealed that both of you had a criminal association with this syndicate before each of you engaged in conduct relating to this consignment.  Judge Chettle, in his sentencing reasons, commented in relation to Mr Sun that although he had no prior convictions, he 'could not claim to be of good character prior to this offending.' The same comment is applicable to you.  Evidence was led in your trial that before you participated in this conspiracy, you had a criminal association with Jacky You that involved you assisting him in the delivery of overseas consignments of drugs.  I make it plain that I am not sentencing you in respect of that conduct but only have regard to those circumstances in the same way as reflected by the comment of Judge Chettle when sentencing Mr Sun; that is, you cannot claim to be of good character prior to this offending.
20	The features personal to each of you that were emphasised by the prosecutor were that Mr Sun was 23 years old when he offended, whereas you were 30 years old, and Mr Sun pleaded guilty whereas you pleaded not guilty.
21	Regarding your not guilty plea, the prosecutor during your plea hearing brought to my attention a matter not referred to in the Crown's written submissions.  When you were arrested, on 15 June 2022, a hard-drive in your possession was seized.  That device was subsequently found to contain material that led to a charge against you of accessing child abuse material.  On 8 November 2024, your counsel sent an email to the prosecutor, Mr Barry, stating that if the indictment relating to the child abuse material did not proceed, your drug trial would resolve.  In other words, you offered to plead guilty to this conspiracy if the Commonwealth D.P.P discontinued the charge relating to the child abuse material.
22	Mr Barry, fairly, informed the court that by virtue of a misunderstanding on his part, that conditional offer to plead guilty was not forwarded to his instructors.  It was conceded that had it been, it was possible that an application may have been made by the prosecution to adjourn your trial in order to conduct further forensic analysis of your phone. That analysis may have led to the indictment relating to child abuse material being discontinued and you pleading guilty to the conspiracy charge.  Thus, the trial that took place before the jury may have been avoided.  The Crown conceded that your offer should be taken into account as a factor in mitigation.
23	Your conditional offer to plead guilty was the subject of some discussion on your plea hearing and the prosecution assisted the court by providing a document that sets out the chronology of resolution discussions. It is apparent from that document that on the day after your trial concluded, further forensic analysis of your hard-drive did take place.  That analysis cast some doubt on the reasonable prospects of you being convicted in relation to the child abuse material, and as a result, that indictment was discontinued on 2 December 2024.
24	Mr Edney filed written submissions and supplemented those submissions during the plea hearing.  I have read those submissions carefully.  Mr Edney emphasised in his written submissions and during your plea hearing the difference in your conduct in the conspiracy compared to the conduct of Mr Sun.  He described your role as 'miniscule and ineffectual and of no real consequence' compared to the role of Mr Sun that he described as 'protracted, enthusiastic', 'and sustained'.
25	He pointed to evidence of Mr Sun seeking payment on 4 April 2022 for his conduct and submitted that you did not seek payment and were not paid.  He relied upon the messaging, some of which I have referred to above, and submitted your role was a product of 'happenstance' rather than a considered decision by others that you should be involved.  It arose because Mr Sun had fallen asleep and not responded to Jacky You's instructions in a timely way.
26	He submitted, in relation to your prior involvement with Jacky You, you had not been charged with any offences and it would be wrong to use that prior relationship to increase the seriousness of your offending, or in assessing your prospects of rehabilitation.
27	He submitted that although you pleaded not guilty, the trial was run efficiently with you making significant admissions of fact that expedited the running of the trial.
Personal circumstances
28	Your personal circumstances were detailed as follows.  You were born in 1991 and are now 33 years old.  You were born in China and came to Australia aged 16 to pursue educational opportunities.
29	You are not an Australian citizen and will almost certainly be deported to China after serving your sentence.
30	Your parents reside in China, and you have one sister who is 38 years old.  A letter supporting you from your sister was tendered on your plea.  She describes you as a kind and generous person and details how difficult your time has been, separated from your family and your son while on remand.
31	You have completed a range of educational courses in Australia; completing Years 10 to 12 of secondary school, courses in electrical engineering, and Diplomas and advanced Diplomas in Management. You have been employed mainly in the service industry while in Australia as well as in marketing for educational providers and have also earned money driving Ubers.
32	You formed a significant relationship with a woman named Ms Qu.   Although that relationship had broken down by the time of your arrest, you have a son to that relationship.  At the time of your arrest, although separated from Ms Qu, you were living together and both caring for your son.  I was told during your plea that your son is now nine years old.
33	Your time on remand has been difficult. You were placed in protection (although I was not informed as to why this was the case) and this meant you have had limited 'yard time' and you have been able to speak with your parents, who are in China, once a week, but have no other visitors.  It is submitted the delay in the finalising of your case should also be taken into account.
34	I was told the allegation of child abuse material on your hard-drive impeded you in having access to your son while in custody.  Your relationship with Ms Qu has also further deteriorated and she has not responded to any communication regarding your son.  You have not seen your son since October 2022 and have not been provided with any information regarding his welfare.
35	I was told you have been a model prisoner.  This is your first time in custody, and it was submitted that you have good prospects of rehabilitation.
36	As previously stated, the thrust of Mr Edney's submission was that the combination of matters referred to above should result in your sentence being significantly lower than that imposed upon Mr Sun.
Analysis
37	Mr Liu, I accept the prosecution submission that your criminal agreement was, in broad terms, to perform the same role as that agreed to by Mr Sun.  You agreed to contact OTB and try to facilitate a large quantity of methamphetamine being delivered to your co-conspirators.  The evidence does not reveal that you were aware of the quantity of drugs in the consignment, but the messages reveal that you were aware that this was a 'big job' and that you were aware that there was an element of risk involved in your conduct. There is really no dispute that general deterrence and the quantity of drugs involved in this case can result in nothing other than a significant period of imprisonment.
38	It is also the fact that Mr Sun pleaded guilty, and this is a significant fact in mitigation.  In assessing the weight to be attached to this difference with you having pleaded not guilty I have had regard to the following matters.
39	Mr Sun's plea of guilty was at a late stage, after he had pleaded not guilty at committal and rejected sentence indications given by Judge Chettle.   While 
Mr Sun received the 'significant utilitarian value' of such a plea, there was no specific finding that such a plea was accompanied by remorse.  It is conceded by the Crown that your offer to plead guilty if the child abuse charge was withdrawn should be taken into account in mitigation of your sentence.  It is submitted that it is a matter for the court to determine the weight to be attached to this conditional offer.  I will take that matter into account.  It is unfortunate that the offer was not communicated to Mr Barry's instructors as it may have led to a plea of guilty and a similar factor in mitigation being conferred upon you.
40	I also accept that because there was such a delay in the Crown conducting further analysis of the material on your hard-drive, you experienced a long period on remand with that offence hanging over your head.  I accept this caused difficulty for you receiving visits from your son while in custody with the consequence that your conditions of custody were more onerous than if that had not been the case. In comparison to Mr Sun, it must be noted that he also suffered particular circumstances that made his period of custody more onerous.
41	I note, however, that you have shown no remorse for your offending and although your offer may have led to the trial before the jury not proceeding, there was extensive pre-trial argument that occupied approximately a week of court time in June of this year. I make it plain that you are not to be punished for pleading not guilty and taking your matter to trial but the date at which you made the offer, 
8 November 2024, is relevant in assessing the potential utilitarian benefit that may have attached to your plea of guilty.
42	There was no dispute that while you pleaded not guilty, you made significant admissions of fact during your trial that meant the trial was able to proceed expeditiously.  I take that factor into account in your favour.
43	In relation to the prospect of you being deported, this was also a consequence of the sentence imposed upon Mr Sun.  However, I accept that the impact upon you is likely to be greater as you have spent a longer period of time in Australia, and have a son born here. Your ability to see your son will be severely compromised should you be deported.
44	This is your first time in custody.  While I accept that your history of employment, educational courses, and conduct in custody are positive indicators of your prospects of rehabilitation, I reject your counsel's submission that your prior involvement with Jacky You, in relation to prior consignments, is irrelevant to the assessment of your prospects of rehabilitation.  It is because I assess you as a person with some abilities and intelligence, that I am of the view you are likely to be deterred by the imposition of the sentence I am going to impose upon you.  I regard your prospects of rehabilitation as reasonable however your prior relationship with Jacky You is of some concern.
45	I turn to the most contentious aspect of your plea hearing, namely the differences in your conduct pursuant to the conspiracy and the conduct of Mr Sun.
46	While I accept the prosecution submission that the conspiracy you committed involved you performing the same role as that performed by Mr Sun, I am not of the view that the differences in the conduct performed by each of you is irrelevant to the assessment of your culpability or the sentence that should be imposed.  I have read the case of Tyler carefully.  I accept that the culpability, or the 'role' of a conspirator, is not to be determined simply by an assessment of what actions the offender performed pursuant to the conspiracy.  However, Tyler must be read in the context of the circumstance of that case.  The extract relied upon by the Crown was in the context of the Court reviewing a sentence passed upon an offender, named Chalmers, who had performed an organisational role. The Court commented that the trial judge having overlooked those organisational features made an error and mischaracterised the role.  The Court stated, 'The result was a considerable understatement of what Chalmers did'. Further, after the extract relied upon by the Crown the court went on to comment; 
That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry (citation omitted). That in my opinion, is the first and most fundamental, flaw in the approach to sentencing here taken. 
47	In my view the evidence of Mr Sun's participation in the conspiracy over four and a half weeks compared to your participation over four days in conjunction with him conveying important tasks such as forwarding details of the consignment from 'Chris Z', a person overseas, to Jacky You is of some significance. He sent his own licence to OTB as a form of verification of identity.
48	True it is that I am not sentencing you for the overt acts you committed but in respect of the conspiracy you entered into, but in my view, the evidence demonstrates Mr Sun assisted this criminal conspiracy by performing more conduct over a longer period of time than you did.  Whether you were prepared to take delivery of the consignment is not clear from the evidence.  Mr Barry submitted this is not an important factor as the instructions you received from Jacky You indicate your role was the same as Mr Sun's role and your phone call shortly after receiving those instructions demonstrates the parameters of your agreement, in effect, the conspiracy that you entered into.  Again, at the risk of repetition, I accept that submission.  I regard the evidence of Sun's actions over a longer period of time, as indicating a preparedness to do more, which should be factored into the comparison between you and Mr Sun.
49	I do not regard it as inconsistent with the authority of Tyler to have regard to that additional conduct, particularly where your role and Mr Sun's role were essentially the same.
50	I might indicate that I do not accept your counsel's submission that there is a significant difference in your roles by virtue of the fact that Mr Sun requested payment whereas there is no evidence you made such a request.  I find you were undertaking your activities with Jacky You for reward. The evidence does not disclose whether you received payment, but you clearly entered the agreement on the basis of receiving a reward.
51	I accept the Crown's submission that the reason you were requested to contact OTB was because you were a trusted member of the syndicate.  The task you performed relating to such a valuable consignment would not in my view be assigned to someone other than a trusted participant.
52	In relation to the differences in your ages, I accept that this is a consideration that tells against you in comparison with Mr Sun. He was a young offender.  
Chettle J stated in relation to Mr Sun that while rehabilitation is a significant factor in sentencing a young person it is of less significance in circumstances of such a serious offence. I do not regard that comment as indicating that Mr Sun's youth was regarded by Chettle J as an irrelevant consideration to the sentence imposed upon him.  You are a more mature offender and cannot claim youth as a factor in mitigation.
53	It should be apparent from my remarks above that I am of the view that there are circumstances of the offending and matters personal to you both that tell both for and against each of you in applying the principle of parity.  
54	Ultimately, I am of the view that these factors are such that you should receive the same sentence as that imposed upon Mr Sun.  In taking that view I should state that I reject your counsel's submission that your role was miniscule or ineffectual and of no real consequence. The success of criminal syndicates relies upon people such as yourself performing the type of conduct that you performed.
55	Your role was designed to help protect others higher in the criminal syndicate.  The performance of such roles are important to such criminal syndicates and must be appropriately punished and deterred.
56	Balancing as best I can the relevant considerations and taking account of the submissions of the parties you are sentenced as follows.
57	On the charge of conspiracy to import a quantity of a border-controlled drug you are convicted and sentenced to nine years' imprisonment.  I declare that you serve six years of the sentence before becoming eligible for parole.
58	I declare that the period of 960 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that that be entered into the records of the court.
59	There's no other orders required, as I understand it?
60	MS MATTEA:  Yes Your Honour, there's an application pursuant to s48 of the Proceeds of Crime Act for forfeiture of the Huawei Mate mobile phone.
61	HIS HONOUR:  Forfeiture of what?
62	MS MATTEA:  The Huawei Mate mobile phone on which the offending occurred.
63	HIS HONOUR:  All right.
64	MS MATTEA:  That application was filed prior to the further plea hearing.
65	HIS HONOUR:  All right, thank you.  There's no opposition to that arising?
66	MR ZHENG:  There's no objections to that, Your Honour.
67	HIS HONOUR:  All right, I'll make that order as outlined in the written document.  Can I thank parties for their assistance and I'll adjourn the court.  Your client can stay on the link for a time, if you need to speak to him.  Thanks, we'll adjourn the court.
- - -