Donald Chan and Chun Kwan each appear for sentence in respect of an offence that they, between about 15 February 2017 and 24 February 2017, at Sydney in the state of New South Wales, did attempt to possess a substance, the substance being an unlawfully imported border controlled drug, namely methamphetamine, and the quantity being a commercial quantity. The pure quantity was 81.4 kilograms.
That offence is contrary to s 307.5(1) of the Criminal Code (Cth). The maximum penalty provided is life imprisonment and/or 7,500 penalty units.
In each case the matter commenced as a defended trial on 26 September 2018, and on 26 October 2018, the jury returned a verdict of guilty in respect of each of the defendants. For the purpose of sentence, which was heard on 26 April 2019, agreed facts have been prepared and are accepted by all the parties. They are as follows.
In October 2016, Maxfill Australia Pty Ltd, a freight forwarding company based in Sydney, received an email from a G-Harmsperity Co, a company based in China, requesting a quote for delivery of a 20 foot shipping container to 60 Perry Street, Matraville. The bill of lading described the contents of the container as "112 packages of angle steel," and listed as consignee a person named "Peter," with an address of
60 Perry Street, Matraville, a contact number of 0416 468 253 and an email address of pacific4p@gmail.com. The container numbered APZU3805667 arrived by ship in Australia on 4 January 2017.
On 18 January 2017, the offender Chan, in the presence of co-offender, Isireli Vakatalesau, entered Kennards Storage, located at 409 Great Western Highway, Wentworthville, and requested a storage unit. Andrew Partin, the manager of Kennards Wentworthville, explained to them what storage options were available before showing them a number of units.
On 19 January 2017, Chan and Vakatalesau returned to Kennards Storage and purchased a padlock. The same day a container (the first container) arrived at Kennards Storage for Chan. Chan spent the day unloading it with Vakatalesau. The contents of the container consisted of black angle iron frames, which Vakatalesau and Chan moved into a storage unit.
On 7 February 2017, Maxfill received a request from Harmsperity to handle a second container coming from Yantian Port, China, to Sydney. Maxfill was supplied with a bill of lading, describing the contents of the second container as "152 packages of angle steel" and listing as consignee a person named "Peter." With the same address, contact number and email address as previously referred to.
The contact number ending 253 was used by Vakatalesau and was subscribed to his aunt Ms Mereani Matewasa.
On a date in early February 2017, prior to 10 February, Vakatalesau - calling himself "Peter" - paid a cash deposit of $550 to Julie Southern, the owner of Unit 38/65 Marigold Street, Revesby, to rent a space at the premises to store a 20 foot container. He provided the email address of pacific4p@gmail.com.
On 12 February 2017, Chan hired a white Mitsubishi Outlander, registration 1II5GT, from Europcar at Sydney Airport. He supplied a driver's licence with an address in Coghlan Crescent, Doonside, New South Wales. No other person was listed on the rental agreement as driver.
On 13 February 2017, a representative of Maxfill, Eva Fang, received a text message from "Peter", giving her a delivery address for the second container of Unit 38/65 Marigold Street, Revesby.
On 14 February 2017, as a result of information received from Chinese authorities concerning the second container, Detective Senior Constable Briscoe, Crime Scene Investigator Young, and Federal Agent Thornell placed an inert substance into 69 silver coloured flat square packets.
On 15 February 2017, the second container was inspected by Australian Border Force officers. The seals were intact. The numbers of the seals were ZGL-C757369 (yellow seal), and ML-CN4060456 (blue seal). The second container was then opened and its contents, black angle iron frames, were unpacked.
On 16 February 2017, investigators placed the 69 bags of inert substance underneath the floorboards of the second container. The floorboards were then restored to their original position. Surveillance devices were also installed within the second container.
On 17 February 2017, the second container was repacked with the black metal frames, 15 colour photographs were taken of the repacking by an Australian Border Force officer. Once repacking was completed, the second container was then closed and resealed using the seals previously referred to.
On 17 February 2017, the offender Chun Man Kwan arrived in Australia from Hong Kong.
On the evening of 20 February 2017, Song Li - the owner of Cube Line Transport - picked up the second container from Port Botany, Sydney, and drove it to his yard in Moorebank where it was stored on his truck overnight. On the morning of 21 February 2017, Mr Li drove the truck with the second container from the yard in Moorebank to 65 Marigold Street, Revesby, arriving at approximately 9.38am.
At about 9.55am, after the truck had arrived at the premises in Marigold Street but before the container had been unloaded from the truck, Vakatalesau and another male, Savenaca Alageto arrived at the premises. Vakatalesau identified himself as "Peter", the owner of the container, to Song Li.
Later that day, the second container and Vakatalesau, Alageto, Chan and Kwan were the subject of surveillance by police.
On 22 February 2017, Chan attended Kennards Storage at 409 Great Western Highway, Wentworthville and paid $700 cash for a further month's rental of the storage unit, E013, which had been initially rented on 18 January 2017.
On or about 22 February 2017, Vakatalesau attended the premises of 13/51 The Avenue, Granville at which his aunt, Mary Matewasa, resided with her husband. Vakatalesau had three bags with him. He said to Matewasa, "Aunty, I've got to leave my bags here. Don't touch, it's for my friend." He left the bags at this address and left the premises.
Not referred to in the facts but otherwise before the Court is that the bags that had been left contained approximately 20 kilos of the substitute material - some remaining in the silver coloured packages, and some in clear bags.
On 24 February 2017, police arrested Vakatalesau at his home at 13 Castlereagh Street, Liverpool, during the execution of a search warrant. During the execution of the search warrant, a grey mesh arm sling was seized, together with a Fijian passport in the name of Isireli Vakatalesau, and a Papua New Guinean passport in the name of Peter Bokadisu containing a photograph of Vakatalesau. Each of those items was located in the room in which Vakatalesau was sleeping at the time of the execution of the warrant.
On 24 February 2017, police arrested Chan and Kwan, who were in a Toyota Camry which was stopped near Coghlan Crescent, Doonside, at premises where Chan's parents lived.
On 24 February 2017, search warrants were executed at Unit 38/65 Marigold Street, Revesby, and on the container TCLU2495273. During the search, the yellow seal and the blue seal previously referred to were located on the floor of the carpark area of the premises. Inside the container, amongst other things, were a bolt cutter and three crowbars as well as a power drill.
A search warrant was conducted on 24 February 2017, at the Coghlan Crescent, Doonside, residence of the offender Chan's parents. No items were seized during the execution of the warrant.
A search warrant was conducted on 24 February 2017 at the Vibe Hotel, 100 Bayswater Road, Rushcutters Bay, an address at which Chan and Kwan had stayed, during which time the white Mitsubishi Outlander, registration 1II5GT, which was parked in the carpark at the Vibe Hotel, was also searched.
On 28 February 2017, a search warrant was executed at Unit E013 at Kennards Storage, located at 409 Great Western Highway, Wentworthville. Black angle iron steel frames were located inside the storage unit, during the execution of the warrant.
On 8 March 2017, Ms Matewasa contacted police who then attended her unit. The attending police opened three bags that had been left at her premises by Vakatalesau on or about 22 February 2017. Inside the bags were 51 clear resealable bags and foil bags containing a crystal substance. The items were seized by police and subsequently reidentified as the substitute packages created by police on 14 February 2017.
Tendered as part of the Crown sentence summary, without objection, is also a summary of the surveillance evidence, which is a substantially more detailed document than the agreed facts. I take the content of that document into account, but I do not intend to read it onto the record.
Prior to the departure of the shipping container from the People's Republic of China, Chinese officials had discovered underneath the floorboards of the container an impure substance with a gross weight of 101.69 kilograms. The substance was subsequently tested and proved to be methamphetamine. When the container arrived in Australia, lookalike bags with an inert substance were substituted under the floorboards. Following delivery and unpacking of the container, the offenders - together with the co-offender, Vakatalesau - lifted the floorboards of the container and removed the substituted bags of inert substance, placing them inside suitcases, which they then took away in a vehicle. Drug analysis later undertaken in Australia, in relation to samples from the substance removed by the Chinese authorities demonstrated that the pure quantity was 81.4 kilograms.
I have also taken into account in determining sentence the evidence that was given at trial, including the video surveillance from a camera installed inside the container and also from a further camera operated from across the road and looking into the mostly open doors of the container.
The attempted importation into Australia of a gross weight of 101.69 kilograms - 81.4 kilograms pure - of methamphetamine is a very serious instance of an offence of this nature. The legislation does not distinguish between drugs other than by type and weight. The commercial quantity of methamphetamine is 750 or more grams. A marketable quantity is 2 grams.
Accordingly, the pure amount of the drug intended to be imported was over 108 times the commercial quantity threshold. While the legislation only distinguishes between border controlled drugs according to type and weight, it has becoming increasingly evident that methamphetamine is a very serious problem in the Australian community, at least in New South Wales, with which I am familiar.
It has penetrated all levels of society - that is all socio-economic classes - and it can be found throughout the community in towns, cities, villages, and in recent years, it is evident that it has a significant role to play in relation to the abuse of prohibited drugs in the community, and the inevitable consequences. In particular, in relation to methamphetamine, it is recognised that it may cause brain damage, it may induce psychosis, and it is frequently involved in the commission of offences other than drug offences, that is, offences of violence where the perpetrator is affected at the time by the use of methamphetamine, or offences where the offence is committed for the purpose of obtaining either methamphetamine, or the funds to purchase it. It has become such a significant scourge on the community that an enquiry has commenced very recently in New South Wales in regards to it. Nonetheless, as I have said, the legislation only distinguishes between it and other drugs on the basis of quantity.
The Court in sentencing is required to have regard to the role played by an offender, and the particular activities undertaken by the individual in performing that role. In R v Olbrich [2000] 117 A Crim R 326 at [279], it was said that care must be taken to ensure that any shorthand description of the offender's role does not obscure the assessment of what they actually did. In this matter, it is evident from the timing of the travel to New South Wales by each of the offenders that they came from Hong Kong for the purpose of taking delivery of the container, extracting the border controlled drug and removing it for later distribution.
The Crown has submitted in relation to each of them that they can be reasonably described as "trusted significant participants in the attempt to obtain possession of what would have been - but for the substitution - the drugs seized in China." The full nature and extent of the circumstances that led up to the attempted possession of the drugs by each of the offenders is unknown. If there were persons more significantly involved in the attempted importation, it is reasonable to conclude that each of the offenders was aware of those persons and able to provide information which may have established person's higher in the hierarchy.
However, no such information has been provided and there is, in fact, no evidence before the Court of anyone more senior in the hierarchy than the offenders. I accept that the Crown's description of a "trusted significant participant" is an appropriate description. Each of the offenders gave evidence at trial. In each case, the evidence was of an exculpatory nature and clearly not believed by the jury.
Having heard that evidence, I have absolutely no doubt that each gave evidence according to a prearranged plan to assist the other with an entirely false story. Considering the material available in the Crown case and particularly the surveillance video recordings of their conduct in the container, the Crown case can reasonably be described as overwhelming. Each of the offenders must have been aware from the provision of the Crown brief as to the overwhelming nature of the evidence available against them, but despite that, elected to defend the matter with a fanciful false story as to their individual participation, which was totally unbelievable. It is very unfortunate that they adopted that course because it significantly limits the sentence that might be imposed.
I will sentence them on the basis of what they did, rather than any description of their role.
In relation to Mr Chan:
In relation to the first container on 16 January 2017, the offender Chan checked into the Ibis Hotel at Wentworthville, located in the near vicinity of the Kennards Self Storage facility at Wentworthville.
On 18 January 2017, Chan and Vakatalesau attended the Kennards Self Storage facility in Wentworthville to hire a storage unit. Chan completed the paperwork for the hire of the storage unit and provided his Australian passport as proof of identification. Chan paid for the storage unit and a lock with cash.
On 19 January 2017, the "first container" arrived at the Kennards Self Storage facility in Wentworthville. On that day, Chan and Vakatalesau unpacked the angle iron metal frames from the container and moved them into a storage unit.
On 22 February 2017, Chan returned to the Kennards Storage facility in Wentworthville and paid $700 cash for an additional month's rent of the storage unit.
Chan hired three rental cars which were used during the offending period. Chan rented a Mitsubishi Outlander through Europcar in his own name and listed his parent's address at Coghlan Street in Doonside. Chan then hired a Toyota Camry through Hertz in his own name, and listed the address as Unit 3/19-21 Marsden Street, Parramatta. Earlier, Chan had also hired a Hyundai from Sydney Airport. The offender hired all three cars in his own name and paid for each.
Chan brought an electric drill, spanners and a crow bar to the storage facilities which were later used by him and the co-offenders to pull up the floorboards of the shipping container.
Chan bought a suitcase or suitcases from his parent's premises to the container at the Revesby address on 21 February 2017.
On 21 February 2017, Chan arrived at the Revesby premises soon after the container had been unloaded from the delivery vehicle and dropped off Vakatalesau and Alageto. Chan then left and returned with Kwan at about 1.18pm. Chan then entered the container with Vakatalesau.
Chan and Kwan then left and drove around nearby suburbs. I accept that this was so that they would not be present while the container was prepared for the lifting of its floor and the removal of the bags. It is also possible that it might be appropriately be interpreted as activity that could be regarded as counter surveillance. However, I note that is speculation.
Between 5.45pm and about 6pm, Chan, Kwan and Vakatalesau lifted the floorboard panels in the container and extracted the 69 packages containing the inert substance, which were placed into three luggage bags and then placed into the boot of the Mitsubishi.
While removing the packages containing inert substance from the container, Chan used disposable gloves. Chan told Kwan during the removal of the package, there were gloves in the car.
Having driven Vakatalesau and Alageto to Bankstown Train Station, Chan and Kwan were left with the packages in the boot of the car.
Approximately 20 kilos of the substitute - some still packed in the silver packages - were recovered from Mr Vakatalesau's aunt's premises. There is no evidence as to how what was taken from the premises in the Mitsubishi was further dealt with or how some 20 kilos of it ended up with Ms Matewasa.
Mr Chan's involvement with both the first and second containers show him to be a participant in all important aspects of the delivery and removal of the substituted material from the container and its retention and removal for delivery to others. His actions in bringing tools and suitcases to the container show premeditation and planning. His actions show that he was intimately involved in the organisation and the attempted possession, rather than merely being an unpacker or courier. I find beyond reasonable doubt that he had a high level of responsibility in the operation and that his conduct was planned, organised and central to the offending.
In respect of the offender Kwan, I also find beyond reasonable doubt that he played the role of a trusted intermediary. As I have previously indicated, I find that he travelled to Australia for the purpose of dealing with the unpacking of the substitute drugs from the container, and their removal for purpose of distribution. Matters relevant to what he did are as follows:
Kwan was issued with a Hong Kong passport on 23 January 2017.
On 14 February 2017, while in Hong Kong, Kwan booked and paid for one room at the Travelodge in Blacktown for five nights.
Kwan arrived in Australia from Hong Kong on 17 February 2017, the same day that the final payment was received by Maxfill Australia from G-Harmsperity Co, which enabled the container to be released for delivery.
Kwan attended at the Revesby premises and used disposable gloves while dealing with the packages in the container in order to avoid leaving fingerprints or DNA.
Kwan assisted in lifting up the floorboards of the shipping container and extracting the silver packets.
Kwan initially retrieved the bags from the bottom of the container using disposable gloves, and placed them in the suitcases.
The video recording from inside the container demonstrates that, after the packages had been placed into the three bags, Chan - appearing to be at the direction of Kwan - removed from two of the luggage cases, all or most of the silver packets before returning the silver packets to the cases. This was referred to by all parties in the trial as a "rearrangement" of the packages.
Having viewed the video footage itself, as part of the trial, I have no doubt that what was actually occurring was a counting of the packages to ensure that all 69 packages had been recovered from under the floorboards so as to establish that it was not necessary to lift any floor panels which had not been already lifted. In my view, that indicates that it was well known that there would be 69 packages secreted under the floor panels.
I accept that the offender Kwan played a significant role in relation to the intended retrieval from the container of the drugs believed by them to be present. The proximity of his arrival in Australia from Hong Kong prior to the delivery of the container allows a conclusion that the purpose of his trip was for his direct involvement with the final steps of the importation, that is, the recovery from the container of the anticipated drugs and their removal and retention for delivery to others.
I also conclude that as the co-offenders Chan and Vakatalesau were already in Sydney and available to deal with containers contents, that Mr Kwan's presence was a matter of some significance to the success of the unpacking, retention and disposal of the container's contents. I infer that his presence was because whatever he brought to the operation was of considerable importance to its success.
[2]
Subjective matters - Donald Chan
Donald Chan is now 40 years of age, having been born on 26 September 1978. Before the Court in respect of subjective matters is the following:
A Sentence Assessment Report under the hand of Claire Morrison, dated 23 April 2019.
A report from Sam Borenstein, psychologist, dated 19 April 2019.
A significant bundle of references and relevant documentation relating to such matters as employment, education and character
A copy of his criminal history. I note that he has no history of previous criminal offending.
Subjective matters are drawn from that material. I note in respect of the Sentence Assessment Report that he provides little information which is not otherwise available in the material I have referred to. Of significance, however, is that it records the following under the heading, "Attitudes":
"Mr Chan denies knowingly being involved in the current offence.
When discussing his offence, he reported his frustration that his innocence was not further investigated. He acknowledged the impact his current incarceration has had on his family, specifically his daughter."
He was assessed as being a low risk of reoffending according to the Level of Service Inventry - Revised.
The offender was born in Australia, but his parents owned and managed a Chinese restaurant in Granville, which was open six days per week. Accordingly, he was taken by his maternal grandmother to Hong Kong at the age of three months. He returned to Australia to complete his high school studies between 1990 and 1996, after which he returned to Hong Kong. He worked in sales at a music store for two months, before joining a property company as an operation's assistant and later working in property and facility management.
He has obtained an Advanced Diploma in Building Facility Management. He married, but is divorced and there is one female child of the marriage. I note that I have some difficulty in relation to the offender and statements that he has made about his past history, simply because his evidence in the trial was so patently untrue that it makes it difficult to accept anything that comes before the Court by way of hearsay in the absence of tested evidence on oath, on the sentencing proceedings, noting that he did not give evidence on the sentence proceedings. I note that in conferring with Mr Borenstein, he continued to deny commission of the offence. Having claimed to being employed by a person he only knew as "Peter" to unload containers, he informed Mr Borenstein that "he was told of the offences only when police came to his mother's house and arrested him."
Mr Chan arrived in Australia on 15 January 2017 and was arrested on 24 February 2017. Mr Chan says he came to Australia so as to "realise his daughter's desire to study in Australia." He divorced his wife in 2014; she remarried in 2015, but apparently, she didn't want to look after their daughter anymore. The daughter was taken on by his wife's mother to care for. He has apparently been returning to Australia on an annual basis to visit his father, who is aged 68, and his mother who is aged 65. His father is described as being "anxious and diabetic," and his mother is suffering what is referred to as "nerves."
In respect of his daughter, now aged approximately 12, he said of her, "My priority. There's nothing more important to me than her." It is a shame he did not have more regard for his daughter before coming to Australia to commit this offence.
Having been arrested on 24 February 2017, he has been in custody since that time and only in respect of this matter. But fortunately, his parents live in Australia and have apparently been visiting him as frequently as they can, and he has been able to maintain a relationship with his daughter by telephone, although at the time of Mr Borenstein's report he had apparently not informed his daughter of his current circumstances.
Having been born in Australia, he is an Australian citizen, and Mr Borenstein opines that there is nothing in his personal criminal history to predict antisocial or criminogenic tendencies. Tendered as part of Exhibit C2 is a letter from the offender's father, together with a health summary sheet indicating that the offender's father has multiple medical problems with decreased mobility and difficulty walking long distances and that he is diabetic. The health summary sheet is from Dr Becky Zhang, printed on 31 October 2018.
There is a further letter from L Muller, being a DS Special Agent, with the regional security office of the US Consulate General in Hong Kong. It is dated 18 June 2014 and refers to the offender as having been responsible for "all day to day liaison between the guard company and the regional security office and served as the main point of contact on all issues regarding coordination between our offices." Mr Muller's opinion of the offender is high. He refers to him as,
"Donald Chan has all the skills that are required for success and he would be an asset at any company. Based on my observations, I would recommend him for any future position due to his enthusiasm, willingness to learn, professional appearance and sophisticated attitude. Additionally, I especially recommend him for a position which requires a person of integrity and trust."
While I accept Mr Muller's opinion as being his genuine opinion at the time, in my view, it was clearly misplaced as is demonstrated by this offending. There is a reference from Sai Ho Young, dated 10 March 2019, being a friend of the offender of some ten years. There is a further reference from John Huynh, dated 26 March 2019, referring to himself as a close friend of the offender, whom he has known for 30 years and particularly during his days in high school. He refers to him as having been a high achiever at school and that he has a high regard for him. There is a further letter from Chi Fai Poon, being an acting supervisor of the regional diplomatic pouch and mail at the US Consulate General, Hong Kong, dated 1 March 2019, that person having known the offender for three years, having initially met him through his work relating to the US Consulate, but later working together in property management. Poon refers to the offender as:
"… one of the most gifted, dedicated and mature persons I have known, and Donald has the potential to become a brilliant professional. He is also very honest and kind; he was a very helpful person. I know that Donald is a bright and intelligent person."
There is further a letter from the principal of Granville Boys High School, M Anderson, dated 15 November 1996, addressed "To whom it may concern," The reference attests to the good opinion the offender was held in by the principal, noting also that he had participated in a wide range of educational and sporting activities, as well as participating in the Australian Mathematics Competition and the Shell Traineeship Program, in which he earned a scholarship in engineering. The reference indicated he was also well regarded by other teachers at the school.
There is a further letter from Ms Natalie Li, the Human Resources and Administration Manager at Hopewell Centre Management Ltd, dated 30 April 2013. It merely attests to his employment with the Hopewell Centre for approximately one year from 22 July 2011 to 30 April 2013.
There is a further letter relating to employment dated 13 October 2011, indicating that he was employed by Kai Shing Management Services Ltd for a period from 3 November 2008 to 30 April 2011 in various occupations, including being a senior customer service assistant, and stating that he left of his own volition.
There is a further work reference dated 18 February 2014 from Elsauyu, Associate Director of Human Resources at Jones Lang Lasalle in Hong Kong, certifying that he had been employed as a senior property officer since 2 May 2013 until resigning on 19 February 2014 of his own accord.
There is a further letter from Elton Yeung, dated 2 December 2011, being the manager of a business referred to as "Taste", in respect of his appreciation of the offender having - together with others - been responsible for apprehending a thief from the business.
There is an Australian Mathematics Competition certificate from 1995, the offender having achieved a credit standard in Year 11 of the senior division and a certificate as to completing the Shell Traineeship Program, dated 19 January 1996.
There is a certificate indicating that on 29 June 2012 he received an Advanced Diploma in Facility and Property Management from the University of Hong Kong.
There is a certificate in respect of the successful completion of a course titled, "Cyber Security Awareness," dated 23 February 2014.
There is a certificate of achievement under the hand of Lisa Blystra, president and chief executive officer of "Crossroads", the certificate, dated 13 December 2018, attesting to the offender's having successfully completed a course while in custody, titled, "Great Truths of the Bible," and an accompanying letter.
There is a TAFE Statement of Attainment, dated 9 January 2019, as to courses completed while in custody of "Shift Material Safely", "Using Manual Handling Methods" and "Follow Work Health and Safety Procedures".
There is also a report from the manager of industries at the Metropolitan Remand Reception Centre, dated 4 March 2019, indicating that the offender in March of 17 applied for work and on 13 March 2017 was employed in the laundry. On 18 October 2017 he was made an "essential worker" and on 19 September 2018 an "escort".
I accept that the offender has been well regarded by his friends, employers and work associates over the years, and that they have expressed their genuine opinions in the various references that have been supplied. I accept that the offender is an intelligent man who has managed to achieve a number of qualifications over time. It is, of course, extremely disappointing that he has applied his intelligence to the commission of a very serious offence.
There is no evidence in any of the material provided to me, other than that the offender continues to deny the commission of the offence, and there is, accordingly, no evidence of remorse or contrition.
There can, in the circumstances of this matter, be no discount relevant to the concepts of "facilitating the course of justice" or the "utility of a plea of guilty" in their absence.
[3]
Subjective matters - Chun Man Kwan
Chun Man Kwan is now 44 years of age, having been born in Hong Kong on 9 February 1975.
Before the Court is his criminal history, which I note indicates that he has no previous criminal convictions.
The offender did not give evidence on sentence, although he did give evidence in the trial. Similarly, as I have noted in respect to Mr Chan, his evidence was in the face of an overwhelming Crown case, a significant part of it recorded on video, and what, in my view, was a version of events determined by agreement between himself and his co-offender to assist each other. Little faith can be placed on anything he said in the trial about his personal circumstances or what he has communicated to the psychologist, Ms Duffy, which is referred to in her report of 10 April 2019. In addition to her report, there are a number of references and a sentencing assessment report under the hand of Sylvia Johnson, dated 18 April 2019.
Ms Duffy refers to the offender as having:
"… impressed as a sociable person who had been susceptible to adverse influence by his co-accused and friend, Mr Chan, in the commission of the offence. He described engaging in various business enterprises in Hong Kong and being disappointed when they were not successful. He expressed regret for his role in the offence and declared that he had been too trusting of his co-accused."
As to "regret for his role in the offence," I note that the offender denies having had any knowing role at all in the offence, so that any regret expressed could only be as to the unfortunate circumstance that he unknowingly became involved in Mr Chan's offence, contrary to the jury verdict.
His father is referred to as having been violent, and having exercised that violence against the offender. The offender is referred to as not being a particularly good student.
There were apparently two children of the family; he has a younger sister. His father worked as a health inspector in Hong Kong prior to the Chinese takeover in 1997. He had a better relationship with his mother than his father. His parents separated in 2008, and he has had little to do with his father since then, except for Chinese New Year, or Father's Day. He has remained in close contact with his mother, who has come to Australia to visit him in gaol, while in custody, on at least three occasions. Her health is said to have deteriorated, she having some thyroid problems.
He has a daughter. Mr Kwan was married in 2007, and his daughter was born in 2008. He and his wife separated in 2011 and subsequently divorced. He has had no real contact with his daughter for the last six years. He was educated at a junior high school but left at the age of 16, being an average student. He was apparently an excellent swimmer and represented Hong Kong in backstroke in international competitions.
Although he won a scholarship - presumably as a result of his swimming ability rather than his academic ability - to a prestigious high school, after attending there for a period of two years, he decided to leave, abandoning training and competition to find a job. He worked in a restaurant for two years, then as a truck driver. He spent some time learning motor mechanics at a workshop and later began working in the hospitality industry, in a bar, initially as a bartender, then later as a bar manager. He is said to have been, according to him, "good with customers." In 2007, he and a friend decided to open their own bar, each putting in 50% of the finances, which was approximately $1 million Hong Kong dollars, or about $180,000 Australian, at the time, most of which he had borrowed from his mother. The bar opened in a fashionable suburb; he was in effect, the "upfront management" of the bar. In 2010, he was attacked by a drunken customer and received a number of injuries to his arm, which are referred to in the psychological report and in other material tendered on his behalf.
He spent time in hospital and recuperating at home for a year as the injuries were significant. The business apparently went downhill and he closed it down in 2011, at about the same time as he separated from his wife. He had a further bar job for approximately two years, and became a waiter in a Mahjong parlor. He attempted to open his own Mahjong parlor in 2016, in partnership with a friend, borrowing for that purpose about $18,000 Australian, however it proved unsuccessful.
While in custody, since 24 February 2017, he has been teaching himself English through audio CD's and watching TV with Chinese audio but English subtitles. This has said to have improved his understanding of English, but he still has difficulties in relation to speaking English. I note in that regard, that he gave evidence in the trial with the benefit of an interpreter. I accept that his limited English will make custody less comfortable than it might otherwise be, but I note that there are many persons in custody in New South Wales, who speak Chinese languages with whom the offender will be able to communicate, and he has now had approximately two years to increase his English skills.
Although there is no other information before the Court as to the fact, the psychologist had access to Justice Health reports which indicate that he has suffered from haemorrhoids and as a result of the symptoms had a colonoscopy on 14 March 2018. He subsequently had an operation to band the hemorrhoids and has been prescribed laxatives and also analgesics and Warfarin, although he did not discuss that with the psychologist, I would assume that was simply due either to an oversight or some embarrassment.
He is said to have never used illicit drugs, in his 20's, he gambled at a casino in Macau, losing $100,000 Hong Kong. Apparently that was enough for him to learn a lesson and he has never gambled again.
His wife is said to have become emotionally unstable after the birth of their daughter, and increasingly difficult to live with, which no doubt contributed to their subsequent separation. He subsequently formed a relationship in 2013 with a female and they lived together for a period of time. That relationship ended prior to his coming to Australia, or as a result of him having come to Australia and being arrested.
I note in the circumstances of his clearly false evidence at trial the need to be circumspect in relation to anything said by Mr Kwan. He informed Ms Duffy as follows:
"He was aware that Chan was in the freight business when he invited him to come to Australia. He met Chan's parents and he saw Chan daily for meals and sight-seeing. The night before the offence, Chan had asked him to help unload a container. Chan picked him up the next day and they drove to Revesby. Initially, Mr Kwan sat in the car while Chan went inside. He felt guilty not offering assistance. He thought the business was legitimate, as they were unloading in a public place and gave it no further thought.
By the time he came into the warehouse, all the packages were unloaded off the pallet. He could not do much with his weak arm, but later carried some packages into the boot of Chan's vehicle. He stated that he had not known that there were drugs involved until after he was arrested by police, who told him. Chan had told him there were packages and he assumed it was part of his business. Now he has learned a 'big lesson,' not to take part in something without knowing in detail what it was about. He said, in future, he will be more careful and discriminating in his actions and not get involved in something he knows nothing about."
That explanation, of course, is far from what is observable from the evidence before the Court, at trial.
An assessment as to his level of depression and anxiety was in the moderate range and stress was in the normal range. According to the psychologist, that was in response to his current circumstances, which is entirely understandable, being at the time of the assessment in custody, awaiting sentence.
He is said to not use drugs, and as I have already indicated, he has no criminal history.
Two documents have been provided from Justice Health dated 3 October 17 and 5 July 18, each indicating that he has been suffering from some lower back pain while in custody. There is a document from the United Christian Hospital, Hong Kong, in relation to the arm injury that he suffered in 2009. It describes the injury as "multiple cut injury by knife to left arm, wrist and index finger." He had the repair of a tendon, artery and nerve, and a splint was applied, and having been admitted on 18 April 2009, he was discharged on 21 April 2009. At follow up, he was found to have residual signs of ulnar nerve palsy and swan neck deformity of the left little finger, affecting his hand grip. It appears that there may have been some subsequent surgery to assist in relation to his left little finger.
There is then, it follows, as part of Exhibit K2, a significant bundle of references from family members and friends, including Mei Ho Mak, the offender's 62 year old mother. She confirms that his father used to inflict corporal punishment on him and some of the details in relation to his past marriage, and also attests to the fact that he has in the past assisted her by providing her with funds.
There is a further reference from Suet Yee Kwan, the offender's younger sister. She describes him in good terms and as being a person who places a lot of value on family and respect for senior relatives. She also refers to his unhappy marriage and to her support of him, having travelled together with their mother and a cousin to Australia to visit him in custody. She has visited - at least at the time of her reference, which was 24 January 2019 - on two occasions. She also refers to observing on the second occasion that she visited him, a growth on his neck, which was apparently diagnosed as relating to his thyroid. There is no other material contained as to the consequences or any sequalae.
There is a further reference, dated 15 December 2018, from Chun King Leung, the husband of the offender's maternal aunt. There is a reference from Shui Lan Mak, an aunt of the offender. There is a reference from Chi Tim Chun referring to the offender as the "son of my elder male cousin."
There is a reference from Ms Kam Ying Chan, a cousin of the offender; a letter from Mr Ying Ho Leung, a cousin of the offender dated 18 December 2018; a letter from Chi On Chun, an uncle of the offender, dated 19 December 2018; a reference from Mr Man Mak, being as he describes it "the brother of the offender's mother," dated 19 December 2018; a letter from Mr Sim Tung Lau, a friend of the offender for a period in excess of ten years; a reference from Ms Yuk Wai Coco Tang, a friend of the offender for a period of six years; a letter from Ms Shuk Han Lee, a friend of the offender for a period of 20 years; a reference from Ms Wai Mei Mak, a friend of the offender for a period of 18 years; a reference from Paul Ng, an employee of the Ling Liang Evangelical Church, who attests to knowing the offender for 20 years and referring to himself as the offender's "spiritual group leader," and friend. He also states:
"He participated proactively in church endowment courses and in small group activities. Chun Man was diligently trying to change his life in Christ."
He also expresses his disbelief that the offender would have involved himself in this matter.
There is a further reference from Ms Yau Hing Tam, a neighbour of the offender, at least at the time that he was approximately one year old and for some unspecified period thereafter. She gives evidence of her opinion of him, holding him in high regard and states:
"I found it so unbelievable; I think the present matter of Chun Man's was committed due to his reckless mistake."
The final reference is from Ms On Nogor Tsoi who refers to herself as a friend of the offender's mother for 50 years and knowing the offender since he was a "toddler."
I have not referred to any of the detail of most of those references, for the reason that they were all references from family and or friends who have known the offender for various periods, who all regard him well and, in most cases express shock to have heard of his offending. Of significance is that there is no evidence of any expression of remorse or contrition, except for the reference of Shui Lan Mak, his aunt. In her reference, in relation to her contact with him during a telephone call or calls, she states
"On this occasion, he has committed a very serious mistake and he has conveyed his remorse."
I do not accept that in the circumstances as being any acceptable evidence of remorse or contrition.
I accept that those who have provided references in respect of the offender have genuinely expressed their opinions of his being of good character and well regarded by them. That those who have known him over the years hold him in good regard and as a person of good character is not, in my view, of significant assistance in relation to a matter of this seriousness, where one of the factors that must have been relevant to his coming to Australia to carry out the offence was that he would have no difficulty in obtaining a relevant visa to enter Australia for the purpose of the commission of the offence. I do, however, take into account all of the matters that I've referred to.
As I have previously referred to, it is clear that the offender's participation was the subject of premeditation and planning, which is relevant to weighing up the seriousness of the offence, as referred to in R v Morabito [1992] 62 A Crim R 82 at 86. In R v Olbrich [2000] 117 A Crim R 326, it was said where an offender seeks to be sentenced on the basis of being a person low in the hierarchy of a drug enterprise, the offender must establish that fact as a mitigating fact on the balance of probabilities.
I have already referred to my finding as to each of the offenders' roles and the acts committed by each of them as being the basis on which I will sentence them. I have also previously noted that there is, in fact, before the Court, no evidence of any person being higher in any hierarchy involved in this matter, although, I note that it is common for activities in relation to importations to be divided amongst a number of different persons. As I have previously indicated, neither of the offenders gave evidence on sentence. Each continues to deny their involvement and there is no evidence of any person higher in the hierarchy.
Their role, in my view, was neither menial nor necessarily limited and was, in my view, crucial to the success of the criminal enterprise. Even though it cannot be established what role they may have had in relation to the distribution of the anticipated cargo, it is clear in the circumstances, having removed the 101 kilos of substitute, that it was the offenders who would subsequently make it available to others, presumably in bulk.
In my view, their role was crucial to the success of the criminal enterprise. Illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles and it is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. R v Budiman [1998] 102 A Crim R 411 citing with approval the observations of Wells CJ in Le Cerf (1975) 13 SASR 237 at 239.
As I have said, although the full nature and extent of the enterprise is not known to the Court, this is not a case where either of the offenders had a menial role and where I have concluded that each was highly significant to the success of the retrieval of the packages, securing them and retaining and removing them for distribution. I have previously referred to the fact that the pure amount of the drug was some 108 times the threshold for a commercial quantity of 750 grams pure.
The quantity of drug is not the be all and end all of establishing an appropriate sentence, but it is a very relevant factor to take into account. Wong v The Queen, Leung v The Queen [2001] 207 CLR 584, I note that 101 kilograms at a purity of 75.16%, as analysed, is accepted as having had a value on a wholesale or bulk sale of approximately $8,080,000 to $14,140,000. The estimated street value was estimated as being between $50,848,000 and $152,544,000, each of those estimates being based on the black market prices in 2017, and with purity of 75.16% being taken into account.
The maximum penalty of life imprisonment serves as a relevant yardstick to be taken into account.
I accept that in the light of what I've referred to as the acts of the individual offenders and the quantity of drug involved, that this was an objectively serious breach of the relevant section. There is before the Court no evidence of any financial motive in relation to either of Mr Chan or Mr Kwan, although there are some references by Mr Chan in his record of interview and in his evidence about being provided with certain funds to pay for storage and or for unloading the first container. I, of course, in the circumstances do not accept those as being honest accounts of his expectation as to what he might receive. There is no evidence before the Court as to how any proceeds from any distribution of the anticipated methamphetamine were to be distributed.
However, I infer that each of the co-offenders, was at the very least expecting a significant financial reward or benefit for their participation in what they must have realised was a very significant offence, and that the anticipated imported substance in the quantity they took possession of, would have had a very high value, even when sold in bulk.
I may have failed to mention, in relation to Mr Kwan, that the Sentence Assessment Report assessed him as being a low risk of re-offending according to the Level of Service Inventory - Revised, and similarly, Ms Duffy assessed him as being a low risk of reoffending.
In relation to each of the offenders, I accept in view of their past crime free history that they are at a low risk of reoffending. That, in my view, diminishes to some extent the need for sentence to reflect specific deterrence, however general deterrence remains a very important factor in determining sentence in relation to an offence of this nature, and in the absence of a significant sentence the interest of general deterrence will not be served. R v Pang [1999] 105 A Crim R 474 at 476. Any potential financial rewards to be gained from activities such as this must be neutralised by the risk of severe punishment, R v Cheung Yai Man & Ors NSWSC (22 March 1991, unreported per Sully J), and as cited with approval in a number of subsequent cases, including R v Stanbouli [2003] NSWCCA 355 at 114.
As I have previously referred to, a lack of prior criminal convictions is not unusual in matters of this kind. It has been said that the usual leniency extended to first offenders will not ordinarily benefit offenders who participate in the illegal importation and trade of illicit drugs, R v Nguyen, R v Phan [2010] A Crim R 106.
I accept until such time as Mr Kwan's English skills improve, custody may be somewhat harsher for him than for an ordinary prisoner who speaks English. I also recognise that his family resides in Hong Kong, and although they are supportive and since his arrest have visited him on a number of occasions, he will continue to have limited access to his family because of those circumstances. However, I note that those are circumstances that ought to have been taken into consideration by Mr Kwan before he came to Australia to commit this serious offence. There is no evidence before me in relation to either of the offenders that there will be any significant hardship in relation to their family, even though it may be the case that each has provided a support to a parent or child. I do allow those matters to have some mitigating influence on sentence, but not substantial.
Any sentence to be imposed, must, of course, be backdated to the time of their arrest.
I have had regard to the various cases provided by the Crown on sentence. I do not intend to individually refer to them.
I have also had reference to the statistics available through JIRS. It is, of course, always difficult, but I am familiar with sentences in general in relation to this field, and also cases such as De La Rosa v R [2010] NSWLR 1. While there are some differences in the acts performed, I am unable to discern any significant difference in relation to the role of each of the offenders, or their subjective circumstances. Accordingly, I intend to impose the same sentence in relation to each of the offenders, and I will not express them separately, but simply once. I note that I am, of course, fully cognisant for the purpose of the sentence that I intend to impose later today on the co-offender, Vakatalesau, and I have taken into account - not without difficulty - the question of achieving parity between the offenders, including the co-offender, Vakatalesau.
Before I pronounce the actual sentence, is there any matter that I've failed to address?
CROWN PROSECUTOR: No, your Honour.
HIS HONOUR: I have referred to remorse and contrition. I have referred to the risk of reoffending. I do not believe I have yet referred to the prospect of rehabilitation. In respect of rehabilitation and in respect of each of the offenders, while I have found there is a low risk of reoffending, it is extremely difficult to form any opinion as to the prospect of rehabilitation in circumstances where each has been convicted after a defended trial in the face of an overwhelming Crown case, and there has been no acknowledgement by either of having committed the offence, or any expression of remorse or contrition, as previously referred to.
In those circumstances, I am unable to forecast the prospect of rehabilitation. But I note that I intend to impose a serious sentence which will give them a very significant period of time to reflect on what they have done.
Accordingly, Mr Kwan and Mr Chan, would you please stand?
You are each convicted in relation to the offence of attempt to possess a commercial quantity of a border controlled drug, being methamphetamine, in the quantity of 81.4 kilograms pure contrary to s 307.5(1) of the Criminal Code.
In each case, the sentence is a sentence of 23 years imprisonment, with a non-parole period of 15 years. The non-parole period will date from 24 February 2017, when you entered custody. l make an order that you be released on parole on the expiry of the non-paroled period, which will be 23 February 2032. The balance of term is eight years, and that will expire on 23 February 2040.
Thank you, you can sit down.
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Decision last updated: 17 September 2019