Findings of Sentencing Judge
- The sentencing judge made the appropriate findings in relation to the five conspirators, but I reiterate only those that are particularly relevant to the matters before the Court. The evidence did not establish that any of the five conspirators was anything vaguely approaching the role of a principal in relation to the importation and, for most of them, the evidence was either silent or incomplete as to what, if anything, they were to gain as a result of their involvement in these offences. Nevertheless, her Honour found that there can be no doubt that each committed the offences for financial gain.
- Each of the offenders played an important, if not essential, role in the conspiracy and each of them took steps to seek to ensure that they were not detected. The Applicants Chen and Chuang had appropriately the same role, which was "more important in the overall conspiracy than the roles played by [Offenders] Lai and Zhang".
- Each of the Offenders Lai and Zhang played the same role as each other. Offender Chang was subordinate to each of the Applicants and towards the lower end of the syndicate, as were Offenders Lai and Zhang. Nevertheless, Offender Chang undertook different tasks to those performed by Offenders Lai and Zhang.
- Applicants Chen and Chuang undertook a role that, in large part, was the giving of directions to the others, by making arrangements and passing on messages. On occasions, Applicant Chen directed both Offenders Chuang and Zhang, sometimes by telephone, particularly in the early stages, concerning the dismantling of the consignment. His role was not confined to a role of direction, because he was also physically involved in the dismantling process. It was Applicant Chen who used an angle grinder and a crowbar to gain access to the consignment.
- Applicant Chuang also instructed others regarding the plan to take possession of the drugs, including the rental of a property and storage spaces. Mainly, these were directions given to Offenders Lai and Zhang. Applicant Chuang also instructed Offender Lai about installing an anti-surveillance CCTV camera in a car near the Merrylands premises that had been rented and also the provision of funds to others, from time to time, for the work that they had done and to enable the room to be booked and occupied.
- Nevertheless, her Honour determined that neither of the Applicants is at the top of the syndicate, whatever its complete structure might have been. There is no evidence that any of the conspirators that were before the Court, including the two Applicants, had any role in the actual importation, or arranging for the importation, of the drugs.
- Her Honour the sentencing judge determined that Offenders Lai and Zhang were lower in the hierarchy and towards the bottom of the conspiracy. Each was undertaking tasks on instruction, usually tasks of a more menial nature and they were akin to couriers, taxi drivers, and, apart from such tasks, installed the camera surveillance device to which reference has already been made. The other activities undertaken were of similar kind.
- Each of Offenders Lai and Zhang had been living in Australia for about two years, working in legitimate jobs, prior to and at the time they commenced committing these offences. There is no evidence or suggestion that either had come to Australia solely for the purpose of being involved in those offences.
- Offender Chang played a role towards the bottom of the syndicate, slightly higher than Offenders Lai and Zhang, and for a shorter period than Offenders Lai and Zhang, but, unlike Offenders Lai and Zhang, the sentencing judge took the view that he had actually come to Australia with the sole purpose of engaging in this conspiracy to possess the drugs. [14]
- Offender Chang undertook tasks such as housesitting for the premises at Merrylands for the purpose of ultimately taking possession of the drugs. He also had a role assisting and unpacking the drugs and taking them to the motor inn, as described earlier in these reasons, which he had booked.
- The sentencing judge took the view that Applicants Chen and Chuang were above the bottom of the range, "perhaps not quite to intermediate, but around that level". Each was trusted to make arrangements by those who were indisputably more senior in the syndicate and the Applicants were directing others. However, neither was making these decisions himself and the decisions and conduct were directed by persons who are unknown and at a much higher level in the syndicate.
- The sentencing judge also, as is required, reached a number of conclusions in relation to the subjective circumstances of each of the conspirators whom her Honour was required to sentence. In relation to each of the Applicants, her Honour made the following findings:
1. Each has good prospects of rehabilitation; [15]
2. There are no criminogenic factors which would affect an assessment of the prospects of rehabilitation for either of them;
3. Each of the five offenders were Taiwanese citizens and none of them have any criminal convictions either in Taiwan or here in Australia; [16] and
4. Each of the offenders have, to some extent at least, some inability to be able to speak and understand English, which will render the time spent in prison as more difficult than for an ordinary offender.
- Her Honour made the following particular subjective findings in relation to the Applicant Chen:
1. He was 30 years of age and had a stable upbringing in Taiwan;
2. He came to Australia on a working holiday;
3. He had the support of his parents in Taiwan and he would return to them when he is released from prison;
4. He was educated to the end of secondary level, but not beyond;
5. He was employed in a hotel in Taiwan for about three years;
6. He committed this offence for financial gain and has admitted that circumstance;
7. The financial gain that he sought was, he claims, in order to assist his father to repay debts.
- Further, her Honour found that the Applicant Chen was and is remorseful, which he expressed. Her Honour also took into account the plea of guilty as indicating that remorse. Other than the offending, the Applicant Chen has worked in paid employment and will work in the future.
- As to the Applicant Chuang, the sentencing judge made the following findings as to subjective circumstances:
1. He was, at the time of sentence, aged 34;
2. He had been to Australia previously for a period in September 2012 and returned in February 2014 for four months before being involved in these offences;
3. He had a good upbringing in Taiwan, but behaved badly at school and this behaviour affected his education;
4. He was not educated beyond a junior high school level;
5. He had substance abuse issues that were present at the time he committed the offence;
6. He often abused alcohol and occasionally used cannabis in Taiwan, before he came to Australia;
7. In Australia, the Applicant Chuang used ecstasy significantly and was probably using the drug at the time that the offence was committed;
8. The evidence does not allow for a finding, even on the balance of probabilities, that he was relying on his drug addiction as the reason for his involvement in the offence;
9. He committed the offence for financial gain, but the details of the gain are not available;
10. Since his incarceration, the Applicant Chuang has stopped using ecstasy, which is positive for his prospects of rehabilitation;
11. He has also been working in gaol and undertaking courses;
12. The sentencing judge allowed some assessment of genuine remorse and contrition, on the basis of his admission as to his involvement in the offence, even though some of the details and history do not necessarily fit, precisely, with the evidence as it was called;
13. There are positive references as to his character, his prospects of rehabilitation are good, affected, as it must be, by any recommencement of the abuse of drugs and he is likely to obtain employment.
- Given the agreement of the Crown that error was disclosed in the sentencing process, it is appropriate, at this point, to indicate, very briefly, the evidence that was adduced, if the Court is required to re-sentence. For the Applicant Chen, there is an Affidavit, affirmed 3 March 2020, which provides prison records and certificates for courses completed and shows an absence of punishments or regressions. There is also a Work Release Order, which provides, as much as anything, the custodial authority's view of his rehabilitation. Also provided are NSW Justice Health Records, showing that the Applicant Chen suffers from epilepsy, for which he is medicated and is, as a consequence, stabilised.
- The evidence on resentencing for the Applicant Chuang is an Affidavit, affirmed 3 January 2020, which annexes prison records and certificates for courses completed. This, too, shows an absence of punishments or regressions and the existence of a Work Release Order, on which I make the same comment as for Applicant Chen, without repeating it.