CDPP v Shen & Anor (Ruling No. 1) [2020] VCC 1477 (4 September 2020)

Last Updated: 22 September 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02375

CR 19-02376

THE QUEEN
v
JUNLONG SHEN JUNJU SHEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2020 (Sentence Indication Hearing)
DATE OF RULING:	4 September 2020
CASE MAY BE CITED AS:	CDPP v Shen & Anor (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1477

REASONS FOR RULING NO. 1

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Subject: CRIMINAL LAW

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr S. Ginsbourg	Commonwealth Director of Public Prosecutions
For Accused Junlong Shen	Ms C. Lynch	Greg Thomas Barristers & Solicitors
For Accused Junju Shen	Ms A. Skinner	Gallant Law

1. HIS HONOUR: This matter, which was heard on 14 August 2020. The Shen brothers, twins, I understand, are respectively represented, Mr Junlong Shen by Ms Lynch, and Mr Junju Shen by Ms Skinner. Mr Shaun Ginsbourg, appeared on behalf of the Director.
2. Both of the Shen's are here in Victoria, pursuant to, as I understand it, student visas, which are valid until July of next year. They have been on remand since the warrant in this matter was executed.
3. This an application under s.207 of the Criminal Proceedings Act for a sentence indication. Pursuant to s.208, the prosecution have consented to such application; however, specifically indicate that they do not want such consent to be seen as consent to an indication of a sentence which would include no immediate imprisonment.
4. Exhibit A was the indictment. Exhibit B is the prosecution opening for sentence indication, dated 31 July 2020. Exhibit D was the prosecution submissions, and Exhibit C was the comparative cases. Exhibit L1 was the written submissions of Ms Lynch, to which she also spoke, and Exhibit J1 was the written submission of Ms Skinner, to which she spoke.
5. The charge pursuant to s.73 of the Drugs, Poisons and Controlled Substances Act, relates to each of the brothers and encompasses, an attempt, the ephedrine having being taking out and a substituted product put into the various boxes by the police.
6. The penalty for such charge is, where sentenced for having possession for the purpose of trafficking, a maximum of five years.
7. There appears to be no issue with the following facts:
   1. Both accused have no priors;
   2. Both accused have no role in the alleged crimes until called by their mother on the 22^nd of February 2019 to supervise the pick-up of alleged tiles and glue from a warehouse at 105 Williams Road, Dandenong South. They were to meet the person who was to drive the truck, they in fact did that and accompanied him to their home, 3 Alberta Avenue, Box Hill North;
   100. Two of the alleged main organisers, as set out in Charge 1, are the co-accused Chen and Chan. The other alleged main organisers are not charged, being the Shen's mother and her partner, both of whom are now in China.
8. The prosecution case is based on the following circumstances:
   1. The mother had flown to Hong Kong, where her partner apparently remained, because of some concerns about the delivery and it’s delay;
   2. Further, prior to this actual delivery, there had been what can be described as a 'test' undertaken to import legal tiles and glue (see [11] of the opening);
   100. The substituted load was waiting in the warehouse from 20th of February 2019;
   4. On 22 February 2019, the mother emailed the boys via the family WeChat. She told them what she wanted in regard to the arrangements for picking up the tiles from the warehouse, arrangements as to the transport of the product and the treating of the product;
   5. Such, in fact, occurred under their 'supervision' and was taken to their home on 25 February 2019 and unloaded under the carport. Such involved some seven pallets of tiles and three pallets of glue. Insofar as the glue was concerned, that in fact compromised 67 boxes, three of actual glue, and the balance were the substituted boxes of the ephedrine that had been effected by the authorities;
   6. Throughout, the mother had been concerned, as evidenced by the communications, as to the glue, its smell and had instructed her sons to use of a spray. The sons were also instructed to pay a person whom they believed to be a business partner in such business the sum of $2,700 cash, which they did;
   7. As demonstrated from [27] of the opening, it took the boys apparently 10 hours to move the tiles and glue. As demonstrated in [28], as they worked, the mother was in contact with them and pressurising them to get the job done and indicated to them that she wished that it should be finished that night;
   8. At 2:00 am, against her wishes, they went to bed, having told her that the job had been finished, as she requested. Just before they went to bed an exchange took place, which is set out at [29] of the opening:

Twin A: 'What do you reckon?'

Twin B: 'Mummy (unclear) sleep'.

Twin A: 'Fuck, the other person is being pushed by others, if the couple of us end up being arrested (literally; being pulled and taken away by someone), it's not going to be surprising. If not, then pushing you, pushing us to being (unclear), what's that for?'

It should be pointed out that that translation is not conceded, and it was submitted by Ms Lynch that the word 'arrested' would be strongly disputed. As to the issue of inferential reasoning, which would in any trial be relied upon by the defence is that despite the request by the mother and her interest, the items were not put into the bungalow. The twins went to bed, leaving a certain proportion of the items outside under the carport. Also, apparently, as was disclosed at the committal, none of the boxes with the substituted ephedrine were in fact opened.

1. The next morning, the conversations continued, while the Shen’s were working. At 11.15 am, the twins said the following:

Twin A: 'Heavy as fuck'.

Twin B: 'Mummy is so anxious about it, I, perhaps, am a little bit suspicious, that it is not glue inside'.

Twin A: 'If it's not glue, then what is it?'

10. The prosecution relies primarily on that discussion and, in particular, those words in [31] to indicate that there is, upon the totality of the circumstances, a significant and real likelihood that each accused was aware at that stage that they were dealing with prohibited drugs, and not glue.

9. It is necessary to consider relevant authority, a decision of the Court of Appeal in Thang Duc Nguyen [2005] VSCA 172, [10], [11] and [15], in particular, the reference therein to the High Court case of Bahri Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502, 504 to 505.
10. At [11] of the Duc Nguyen case, the Court of Appeal in fact quotes from Bahri Kural, in particular, at the bottom of p.6 and notes, that in such cases where the problem of proof arises, it is necessary for the prosecution, by inferential reasoning, to be able to prove the existence of the requisite intention and/or knowledge.
11. They go on to state that the necessary intent is established if the accused knew or was aware that an article, in that instance it was an importing case, brought into Australia, comprised or contained narcotic drugs. They went on to detail the test being, that an accused was aware of such likelihood, in the sense that there was a significant or real chance that his conduct involved such, nevertheless he persisted in that conduct.
12. Finally, at [15], the Court of Appeal said:

'Logic suggests that the same applies to offences under the Drugs, Poisons and Controlled Substances Act... and knowledge of the nature and quantity of the substance, the subject of trafficking, belief falling short of actual knowledge of the facts should be capable of sustaining an inference of intention; as too should proof that the act in question is done in circumstances which make it clear beyond reasonable doubt that the accused is aware of the likelihood of the facts (in the sense of being aware that there was a significant and real chance that his conduct involved (in that instance), trafficking in a prohibited drug.'

'In each case, however, assuming an absence of relevant admissions, the existence of the requisite intention would be a question of fact to be decided by a jury as a matter on inference on the basis of all the facts and circumstances.'

13. The prosecution submit that the Shen’s by their physical awareness in the moving of the 67 cartons, the discussion that they had with their mother, their conversations, that they were therefore aware that they were dealing with drugs, and that the case is strong.
14. There are, of course, as set out in Duc Nguyen, alternative states of mind which may be proved. The prosecution submits that at a minimum, that I should be satisfied, in the circumstances, that it could be proved beyond reasonable doubt that each accused was aware that there was a significant and real chance the product that they were dealing with was prohibited drugs.
15. Of course, such a conclusion has to be made by way of inference from the facts. It should be pointed out that both of the Shen’s, in their records of interview, denied any such knowledge, and both come before the Court without any priors.
16. I have already clarified with the prosecutors, the amount of the drug involved. It is the argument of the prosecution that given the volume of the product, in the circumstances, it would be able to prove to a jury the necessary knowledge.
17. However, as detailed in [7] of the prosecution's submissions as to sentence, being Exhibit D, while one does not lose sight of the volume involved, such does have the limitations as set out by the prosecutor.
18. The prosecutor also provided the Court with a number of cases, which clearly relate to large quantities. However, the relevance is somewhat limited, as the prosecutor himself has set out in the written submissions. The charge here is one of possession simpliciter for the purpose of trafficking, and the issue of weight can only be used in the sense that the prosecution puts the matter, that in the totality of circumstances, the prosecution seek to prove the necessary knowledge of the goods they were dealing with.
19. It was in those circumstances that the prosecution submitted that this application should not be granted and no indication should be given by the Court, by way of sentence indication, of a sentence that would not involve additional immediate imprisonment, on top of which they have already served. Of course, such submissions must be tempered by the maximum penalty, which I have already detailed.
20. The defence submissions, as put by Ms Lynch and endorsed and/or adopted by Ms Skinner, essentially involved the following matters:
    1. That both of the Shen's come before the Court with no priors, and a strong denial in their records of interview of any criminal knowledge whatsoever.
    2. The second matter was that the reliance on the unprecedented weight, which of course brings with it the Charge 1 against the other accused and a much higher penalty. Both counsel submitted that this Court should not be overwhelmed. As to the Shen’s, one has a charge under s.73, of possession simpliciter, for which the maximum is only five years. As I said, both counsel said I should not be overwhelmed by Charge 1 and the volume of the confiscated drug.
    100. The third matter relied upon was their cooperation upon the effecting of the warrant. It was relied upon for a number of matters. It was submitted that the fact of cooperation and no flight was totally consistent with both of the Shen's having no priors and their strong denials in the record of interview.
    4. Further despite, instructions from the mother that the bungalow was to be locked, upon the execution of the warrant, the bungalow was not locked, nor was there any security. Again, it is put circumstances not consistent with the appropriate knowledge that the prosecution would have to prove.
    5. They rely on the issue of delay. This matter was of course not listed for hearing until January of next year. Clearly that trial would never have begun in January of next year. There will now not be any jury trials starting in the County Court, but for perhaps a pilot attempt, until January of next year. I cannot say where a case that is currently listed in the long trials list will end up, but certainly, one would imagine, considerable further delays.
    6. The fourth matter was that, if effected, it would be a very valuable plea. As Ms Lynch submitted, suspicion is not sufficient. I consider there is a lot to be said in that regard, given the particular circumstances. I have already illustrated the matters that would have be proved by way of inference. Also as to the valuable nature of the plea, relied on was it’s utility, given the uncertainty as to when this trial may be heard.
    7. Finally, owing to the delay, the remand period is now 557 days, or approximately 18 months.
21. One has to balance all of the factors that I have referred to. I think the fundamentally important factor is this case is the offer to plead guilty. I find that would be a very, very valuable plea in this case, given the combination of issues that confront the prosecution as to proof in regard to the charges against each of the Shen's, balanced against the period of which they have now spent in remand and of course the maximum sentence of 5 years imprisonment.
22. Given the totality of the submissions and the circumstances, which I have detailed, I have determined that it is appropriate to accept the defence submissions. I am prepared to indicate that if this matter proceeded by way of plea, there would be no further immediate gaol imposed on either of the Shen’s, than the period that they will have then served, whatever that proves to be, given the date.
23. I therefore grant the application. I think it is necessary now to set a date for the plea.

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