Solicitors:
Commonwealth Director of Public Prosecutions
Mr Ting - Offender
File Number(s): 2014/342776
[2]
SENTENCE
HIS HONOUR: The prisoner Chung Wei Chu appears today for sentence in relation to an offence contrary to the combined effect of s 11.1(1) and 307.5 of the Criminal Code 1995 (Cth), hereinafter referred to as the Code.
The offence for which he is to be sentenced alleges that he, on 20 November 2014, attempted to possess a commercial quantity of a border controlled substance specifically methamphetamine. The maximum penalty for this offence is imprisonment for life, or 7,500 penalty units, which I am informed by a footnote in the Crown's facts is $170 per penalty unit, or both.
The prisoner has been in custody since his arrest on 20 November 2014 and the sentence I impose will date from that date. The prisoner at the time of the commission of the offence was 25 years of age, having been born on 1 July 1989.
Mr Chu is a Taiwanese national and as I said he was arrested on 20 November 2014 in circumstances where he had, shortly before, taken delivery of some articles which had been forwarded to Australia and which on entry to Australia had contained a quantity of the border controlled methamphetamine. The property at which he was arrested was a residential property. The property had been leased to a person described as a "Mandarin speaking female" named "Theresa" for $630 per week, commencing on 4 August 2014. The lease arrangements apparently were informal and the period of the lease was to be on a week to week basis. It strikes me from the perspective of both the lessee and lessor to be a highly suspicious arrangement. In any event this prisoner arrived after the premises had been leased, obviously by another person. He came into Australia on 19 August 2014 on a flight from Taipei, the capital of Taiwan, having flown via Kuala Lumpur the capital of Malaysia.
The prisoner returned to Taipei, apparently on 8 September 2014 and it would seem that he came back to Australia on 13 October 2014. When he came back to Australia the particular consignment, which contained the border controlled drug, the subject of the charge, had already arrived in Australia, some two weeks before on 30 September.
Dealing with the prisoner's presence here on the first occasion the prisoner, by use of his iPhone took a total of 69 photographs of the interior and exterior of the property that had been rented and surrounding areas. He also, it must be said, had taken a number of other tourist-type photographs between 19 August and 31 August around the Sydney City area whilst he was in Australia.
The photographs the prisoner took of the property at 70 Harrow Road showed that it was minimally furnished and appeared to be vacant. In other words, it is clear from the facts, the property had been leased, solely for one purpose and that was ultimately to be, at least, a staging place for any border controlled drugs that were received at those premises at some time in the future.
The consignment to which I earlier referred arriving on 30 September 2014 ostensibly comprised five wooden crates containing what was described as a metal gear shaft. Each crate weighed 88 kilograms and the total estimated consignment weight was 441 kilograms. The consignor was a company, whether real or not I do not know, located, according to the address on the relevant consignment note, in Hong Kong. The consignee was a business called Colin Equips Co. which I assume is a fictitious corporation. The address given was Harrow Road, Auburn, New South Wales 2144 Australia, but no number, and a contact name of David Austin with what appears to be a mobile telephone number identified as connected to Mr Austin whoever he may be.
On 2 October 2014 when the prisoner would have been in Taiwan, a SIM card for a particular telecommunication service 0451919227, which was subsequently found in the possession of the prisoner was purchased at a petrol station in Lakemba. It was subscribed to a person called Imran Khadir with a birth date in 1990 living at an address at "Merewether New South Wales".
In their usual efficient way, Australia Customs and Border Protection Service officers undertook an x-ray examination of one of the metal gear shafts and later they, with the assistance of some experts in this regard, opened up one of the gear shafts and found two grease covered plastic bags containing a white crystalline substance. Presumptive testing was conducted and the white crystalline substance returned a positive result for methamphetamine.
Over a couple of days up until 9 October Australian Federal Police Forensics, again in their usual efficient way, deconstructed the consignment and found two packages each weighing approximately one kilogram of white crystalline substance in each gear shaft. There were five gear shafts so it made a total of approximately, in gross weight, 10 kilograms from the ten packages.
The white crystalline substance was subsequently analysed and was confirmed to have an average purity of 79.8%. Based upon the results of the purity, the total pure weight of the methamphetamine imported into Australia and seized was 7.952 kilograms. An inert substance was substituted for the methamphetamine.
On 12 October 2012 a photograph which displayed the delivery address of 70 Harrow Road Auburn was placed, it would appear, on the offender's iPhone. He arrived the next day. He said he was coming to Australia for a holiday and intended to stay in George Street, Chinatown.
TNT attempted to contact the consignee by mobile phone but was unable to do so and subsequently between 13 and 29 October, TNT received a number of telephone calls from the person identifying himself as David Austin, advising the correct address, that he had no phone number, that the address was a business address, that he wanted a delivery between 9am and 5pm and requested delivery on what was described as 'several occasions'. There was an advice given to him that there was some customs duty owed and the delivery could not proceed until it was paid so. On 15 October 2014, after initially saying he had no number, he advised his contact number was the number +886970449094. I take it that this is a Taiwan phone number. He advised later that he was in Taiwan at the time and he requested that information about how the duty was to be paid be sent to a particular email address.
It turned out that the email address that was initially provided by him was not accurate as I understand the facts and it is the fact that subsequently there was another very similar email address, provided to TNT between 7 November 2014 and 11 November 2014.
In the meantime, on 14 October 2014, the telephone service subsequently found in the possession of the prisoner recorded telephone calls received from a number again appearing to be a Taiwan number. That number was subsequently identified as one number that had been given as being a contact number for the person David Austin.
In relation to the emails that were sent to TNT, various requests for information were made and advice given about matters relating to relevant payments, particular the person communicating with TNT Eva Chen advised that an employee, Mr Zhu, would be present to take delivery of the consignment but he did not speak English. His mobile phone number in Australia was given to TNT. That mobile phone number being as I understand it the same mobile phone number as was available from the SIM card that had been purchased in the absence of the prisoner at an earlier time.
On 19 November an AFP officer purporting to be a TNT courier, contacted the prisoner's telephone number and advised him that the consignment would be delivered the next day. A range of time was given for that delivery by a later text message. Just before mid-day on 20 November AFP officers, again pretending to be TNT delivery personnel, delivered the consignment to Harrow Road. The prisoner was there and he asked the officers to have the consignment placed in one of the bedrooms of the premises. He produced a passport in his own name and signed for the delivery. Obviously under surveillance, the prisoner was seen to leave the premises about ten minutes later and returned from a nearby shopping mall sometime later and sure enough at 2.35pm AFP members attended the address and executed a search warrant and the prisoner was arrested.
Although the facts are a little ambiguous about this, it turned out that the prisoner's personal effects were found in other parts of the premises but the consignment was in the bedroom that I have earlier mentioned the door being locked. The prisoner said he didn't have a set of keys to unlock the door, although he did have keys in his possession. It is clear he must have locked the door, whether he deliberately got rid of the key or whether in fact by some chance the keys provided to him were not suitable for unlocking the door I do not know.
In any event the police undertook a search. They found a blanket placed over the consignment. They found the mobile phone being a black iPhone 5 with the SIM card and the attached number of 0451919227, a piece of cardboard with that number written upon it, obviously for the information of the prisoner, two other mobile phone handsets, a Chinese passport in the name of the prisoner and a MasterCard in his name. Other personal effects were also found in the premises. These items had been seen in part by the AFP officers who attended earlier.
When a search was conducted of the premises it had an "unlived in" appearance. There were some small items in the refrigerator but no personal items in the bathroom and there appeared to be no other people within the premises or appearing to live in the premises.
The estimated value of the methamphetamine that was seized was $9,966,000. A wholesale value in the facts is stated to be $2,591,000. How these figures are arrived at with such precision I am not informed, but these matters are accepted by the prisoner. Although I accept in the context of other submissions that were made that the prisoner would not have necessarily known the true value of the border controlled drugs.
The prisoner had flights booked to depart Australia originally on 20 November 2014 but clearly that arrangement had to be put off because of the late delivery of the consignment.
In relation to the facts of the case in the context of the terms of s 16A Crimes Act (1914) (Cth) I am required, amongst other matters, which I will come to shortly, to determine the facts and circumstances of the offending. In this regard, sometimes personal circumstances of an offender may be quite relevant. But apart from the fact the prisoner has no prior criminal convictions there is little in his personal circumstances that explains his role in this matter. With regard to the issue of his role, there were a number of submissions made both by the Crown and the defence and other submissions were made as to the circumstances of the offending. It is clear in my view, firstly, that the prisoner had come to Australia principally for the purpose of assisting in the importation of the border controlled drug, the subject of the investigation that led to the charging of the prisoner. In relation to the assessment of the circumstances of the offender, I note the amount of the drug and the value of it as a relevant matter, but it is not determinative necessarily of the category of offending with which I am concerned.
The Crown submitted that in respect of this matter the amount of the drug involved may be a highly relevant matter in determining the objective seriousness of the offence, even to the extent of assessing a particular offence in the worst category of its type. This is particularly so where there is limited evidence before the court as to the extent of any drug organisation behind the criminal enterprise. The weight of the drug will have increased significance where the offender has knowledge of the amount of drugs. These matters are asserted by reference to authority.
The Crown submits that while the prisoner may not have known the actual weight of the drug, given the steps he had personally taken to ensure its safe importation, including the reconnaissance trip to Australia, he must have had an awareness that it was a significant amount. He had accepted delivery of the consignment and must have been aware at that point, if not before, of the "large amount of drugs" being imported.
I just point out in relation to that matter that it is self-evidently so that the character of the delivery to the house of five crates would have given some indication that at the very least there was a substantial quantity of boarder controlled drugs contained within the consignment at one place or another.
I note in relation to that matter, by reference to the objective facts speaking alone, that the total weight of the crates was 441 kilograms. But the weight of the relevant border control drug was ten kilograms. Thus, a very small proportion of what had been imported into the country.
In my view, appreciating the substantial quantity that must have been imported, noting the surrounding efforts in which he and others were involved to bring the importation to Australia, he would not have necessarily known the exact quantity of the drug involved.
In relation to his role there were helpful submissions on this matter by his learned senior counsel. Counsel, in a roundabout way, concedes "the inference" which to my mind is well established beyond reasonable doubt that the prisoner was sent to Australia to take the risk of receiving the possession of the border control drugs. But I also note other features of the matter which are adverted to in the written submissions of the prisoner.
The prisoner did not rent the premises where the packages containing the narcotics were there described to be delivered. He was not in the country when that occurred and it obviously was another person who undertook that role. The prisoner did not pay the rent or for the utilities for the premises. The prisoner at relevant times used mobile phone SIM cards purchased by others prior to his arrival and he had to have provided to him details as to the receiving address for the consignment. There is no evidence that the prisoner was a party to the actual exportation of the border controlled drugs from Hong Kong to Australia, nor party to the payment of any of the associated premises at either end. There may be other inferences that might be drawn but in the circumstances of the matter they are very weak. The indicia of the prisoner's ignorance or lack of involvement in those matters is probably best exemplified by the fact that at the time that the consignment was delivered, he gave his passport as evidence of his identity, thus making himself completely exposed to anything that would follow subsequently. He appears to have received some instructions from overseas in relation to events occurring in Australia whilst he was here in October and November.
It was the case, as the facts revealed, that the TNT organisation had been told that a man with a name very similar to Mr Chu, in fact it may have been Mr Chu's name that was given but mispronounced, would be awaiting the consignment and he did not speak English. I understand the prisoner, if he speaks English, does not speak English fluently.
He provided his real name and genuine passport and he made no attempt to open the packages containing the border controlled drugs after receiving them. In fact he locked them in the room as it was pointed out. He left the building altogether to go and do something at the nearby mall and return to the premises where he was arrested.
One matter advanced by his counsel was that there was "no evidence the offender was paid large sums of money for taking the risk of receiving possession of the narcotics." It is to be fairly said that there is no evidence of what the prisoner was paid for his role. But as the Crown made clear in its written submissions, and it is self-evidently so, it is a matter of "common sense" that the prisoner was undertaking the role for a financial benefit. It would be reasonable to conclude that his travel to and from Australia was paid for by others if he was part of an organisation. That his living expenses were met whilst he was in Australia. But as to precisely what he received I cannot conclude. The prisoner has not assisted because he is has not consented to an interview nor given evidence before me. In fact he gave one account, which is hearsay, to the psychologist which I will deal with shortly which contains a number of assertions which are quite contrary to what the agreed facts state and what reasonable inferences may be drawn.
Clearly the prisoner's role was firstly to assist in the arrangements being made to receive the proposed importation when he was in Australia, his attendance upon the premises and his photographing of the premises was obviously designed to ensure that others might be fully informed of where the very valuable consignment was to be received. He then came to Australia, obviously for the purpose in due course of receiving the consignment. This is clearly part of the "plan" because of what was conveyed to TNT by Ms Chen over the period of time between 7 November and 11 November in the emails she sent whilst the prisoner was in Australia. He then, of course, was present when the consignment was delivered to ensure that it was safely delivered. I reasonably conclude that then he was to ensure that it was taken away by those who had a direct interest in its distribution. I could not conclude that the prisoner himself was going to be involved in the distribution of the drugs. Although he may have had other roles to play of a menial or not significant fashion in that regard. But one would not know because he was arrested before the consignment was picked up by other people.
The Crown's submission was the prisoner's role was an "essential" role. I do not accept the prisoner was "essential" to the arrangements made for the importation of the border controlled drug. But the prisoner's role was significant because he was able to provide information to others about the property that had been rented and of course he was on hand to receive the consignment and be available for its movement elsewhere.
The Crown correctly points out that in sentencing the prisoner I have no idea of what the character of the organisation is that brought him to this country. The prisoner has not assisted the court in that regard in a material sense. But the Crown's facts agreed to by the prisoner contain a number of facts and circumstances that demonstrate quite a number of people were concerned with this importation and a number of those people were performing roles of organisation that were not the responsibility of the prisoner.
It would be pure speculation on my part to ascribe the prisoner a position in a particular "syndicate" or organisation, if it exists, but in this respect we come back to the relevance of some of the personal circumstances of the prisoner and particularly I refer to his absence of criminal convictions, save for some minor drug possession matter in Taiwan which apparently is not recorded anywhere. This makes him an ideal candidate to be sent to Australia to get into Australia without difficulty and to more or less float along under the radar, so to speak, until such time as he was activated to assist in the taking of the delivery of the border controlled drugs, with which I am concerned.
So far as the subjective case of the prisoner is concerned I have a statement, as it is described, from his uncle. I have noted the terms of that statement. There is an apology from the prisoner's family which I understand to be a cultural matter. His uncle speaks of the prisoner's mother and her poverty, it would seem that he grew up in financially difficult circumstances. He suffered some discrimination because his mother was a single parent. His mother has been very worried about him, as a young boy, a young man he was regarded as intelligent and well behaved and good natured. His mother is greatly distressed by his presence in custody and looks forward to him returning to his homeland. He is worried about his mother's welfare. She came over to Australia as I understand it when the matter came before me a fortnight ago and if I had been able to I would have tried to sentence the prisoner within a few days in order to accommodate her presence in Australia, but I was informed she was returning to her homeland the following Monday and as I had trial obligations the following Monday, as is usually the case in this court, I could not accommodate her. I would have wished to have sentenced him whilst she was in the country. His uncle asks for leniency.
I also have the psychological report to which I made reference. It sets out some matters of history which I need not dwell upon. The issue of his history is not a significant matter in this sentencing exercise, bearing in mind what I have said about his absence of substantial criminal antecedents. What is important is that the psychological report notes that he has never had any major illnesses or traumas as a child. He had a motor cycle accident where he suffered some injuries but he has no history of "psychological disturbance". He had some mild "depression and anxiety" when bullied as a child, but there is no mental disorder, illness or disability that is relevant to sentencing in this matter as was acknowledged by his counsel. His family has no history of mental health issues.
When he came into custody he had a grandmother who had leukaemia as I understand it and he would have wished to have seen her before she passed away. But she passed away whilst he has been in custody which has caused him some distress.
He claims no addiction to alcohol or any problems with alcohol, he claims occasional use of MDMA. He has also used the drug Ketamine and has been convicted of possession of that drug. Apparently a relatively minor matter. He has no drug addiction or drug dependency which explains his involvement in this offence.
Bearing in mind of course the difficulties for the Crown with personal histories which are not the subject of a test, it is interesting that the report provided by the psychologist of the history given by the prisoner notes some history of employment, but working in a family owned hawker's store for three or four years before coming to Australia "for a holiday" in 2014. That is before coming to Australia to be involved in the crime with which I am concerned. What this aspect of the history suggests is that the prisoner did not have significant financial assets or support and this might emphasise the desire of the prisoner to obtain financial benefit from his involvement in this affair.
I note the prisoner has performed military service in his country and that is to be taken into account in his favour.
So far as the mental state examination is concerned he was described as polite and cooperative. There was no evidence of psychomotor disturbance. He seemed to be reactive to the circumstances in which he was in. He did not seem however too oppressed by his imprisonment. There was no evidence of any psychotic condition or mental abnormality.
So far as the current offending is concerned that history given requires considerable circumspection on my part. First of all he claimed that he came to Australia in the first instance, because he was asked to go and in effect check out accommodation that friends had obtained in Australia which was thought to be cheap. He also advised that he came back on a second visit, not long after the first visit, "because he felt still depressed on his return to Taiwan". Primarily because of a breakup of a relationship and he thought that "different environment would help lift his mood". This explanation for his second visit I do not accept. It is quite contrary to what is clear from the agreed facts. He gives some history in relation to the circumstances in which he pleaded guilty. He pleaded guilty he reported because he accepted that he had "behaved in a reckless fashion". He also hoped by pleading guilty his sentence would be shortened so he could return to see his grandmother and he expressed remorse. The psychologist's report reflecting upon the history that I have summarised, and other matters that I need not report, stated:
"That if the court determined that Mr Chu's current account of his involvement in drugs and the drug sub-culture was understated it maybe that involvement in a drug rehabilitation program whilst he is in custody may lessen his risk of similar reoffending in the future."
There is no evidence available to me that he was involved in any drug sub-culture. Certainly no basis for concluding that on the material that he himself has provided in the history he has given to the psychologist.
Whilst there is some history of depressed mood, particularly in recent times, it would appear to be more a reaction to circumstances such as the breakup of his girlfriend, his grandmother's fatal illness, and of course his present time in custody. Ultimately there is nothing really of substance in that report to reflect upon the need for special treatment in gaol or out of gaol for the prisoner.
With regard to the submissions that were made by the parties, one of the issues that arose was the issue of whether in fact, given the plea of guilty, there should be some discount for the facilitation of the course of justice through that plea. I have got extensive submissions from the Crown about that matter and the Crown was somewhat hesitant to endorse any discount being given to the prisoner.
The circumstances of the plea of guilty by the prisoner are these. He was committed for trial in the District Court on or about 27 July 2015. A trial date was fixed on 2 May 2016 and he pleaded guilty on 26 April 2016. Thus, approximately a week before the trial.
I am very mindful of what has been said about the issue of the determination of the facilitation of the course of justice I note, amongst other decisions cited by the Crown, the decision of Cappis [2015] NSWCCA 138, particularly at [57] in the judgment of Garling J.
The Crown points to matters such as the timing of the plea, the fact that the strength of the Crown case may be taken into account and the court, in determining whether the prisoner was facilitating the course of justice, was motivated by a willingness to facilitate the course of justice or more motivated by recognition of the inevitable. The Crown also submits that the prisoner's attitude has shown "little contrition" and thus the plea is "indicative of a recognition as to the strength of the Crown case". I had a little difficulty with that last part of the Crown's submission. It was not explained to me, when the Crown had the opportunity to do so nor explained to me in the authorities, that necessarily the presence of contrition was a relevant factor to assessing whether a person was facilitating the course of justice. One could facilitate the course of justice in a material sense even though one was not properly contrite for one's wrong doing. I accept that there is little evidence of contrition, save that that is implicit in the plea of guilty, the apology from his family and the expression of regret to the psychologist.
In any event the counsel for the prisoner submitted that I should consider a discount in the order of 20 to 25%. This is grossly beyond what is appropriate in all the circumstances of this matter. I note in the context of assessing this matter what was said by the prisoner, explaining his late plea as being a recognition by him of recklessness on his part. This suggests that if the matter had gone to trial, notwithstanding aspects of the Crown case that suggests strongly to the contrary, that the prisoner may have argued at trial that he found himself in a situation that reflected recklessness on his part and not a clear knowledge of the enterprise in which he was involved. Bearing in mind he pleaded guilty a week before the trial date and bearing in mind there was no trial which would have created considerable expense to the community, his plea of guilty has facilitated the course of justice, notwithstanding what I could safely describe as the considerable strength of the Crown case. I concluded at the end that I should permit him a discount of 10% upon the otherwise appropriate sentence to recognise the facilitation of the course of justice by his plea of guilty.
With regard to the submissions made by his counsel on matters pertinent to other matters to be considered from those issues identified in s 16A(2) Crimes Act (Cth), I note amongst other things that he has, for want of a better description been a model prisoner in custody. I note the submissions made to me about the fact that whilst in custody he will be some distance from his homeland. He does not speak English fluently, although his English would be much improved by his time in custody, up until this point and he will be to some extent separated from people of similar culture. That having been said of course, notwithstanding his counsel's submissions on the matter, it is has been long recognised that although hardship to a prisoner being imprisoned some distance from their homeland when foreign nationals convicted of crimes in Australia may be a relevant matter, it is to be borne in mind what weight one gives to it is very much dependent upon the circumstances of the offending. The truth of the matter is the prisoner came to this country to commit a crime. So he could expect nothing other than a period of time separated from his family and his culture by coming to this country to commit the crime that he has been convicted of.
With regard to the particular matters that are identified in the Crown's written submissions, some of which are commented upon by learned counsel for the prisoner, I note the need to have regard to the weight to be given to both personal and general deterrence pursuant to s 16A(2)(j) (ja). It is clear that general deterrence is an important factor in sentencing offenders who are involved in drug importation into Australia. A signal that must be sent, not only to people within Australia but people outside Australia. Those that breach our laws and put our citizens at risk by playing some role in the importation of border controlled drugs should expect terms of imprisonment and substantial terms of imprisonment. Even low level involvement in a drug importation or trafficking offence must require the imposition of a significant sentence to reflect the interests of general deterrence. There is a need for some weight to be given to personal deterrence, although one would expect, given the prisoner's background, that his detection and his gaoling in Australia would be a substantial deterrent for him in the future. It is quite clear that he would never be permitted to come back to Australia. So the risk of his further offending is a burden that has to be borne by the people of Taiwan or other countries that he is able to visit now that he has this conviction.
Another relevant matter for me to take into account is the issues of his character, antecedents and personal circumstances as required to be considered under s 16A(2)(m). I have already reflected upon his antecedents, his counsel says that this is a matter that is relevant and favourable to him.
As to the issue however of his prospects of rehabilitation, pursuant to s 16A(2)(n), his counsel submits that he is a person who is unlikely to reoffend and has good prospects of rehabilitation. Given the fact that I do not have knowledge of the circumstances in which he was recruited and the connection of the prisoner with those that did recruit him, as obviously they did, it is difficult to make a prediction as to what his prospects of rehabilitation are. If it be true, as was hinted at by the psychologist, that the real reason that he is here is that he was imbued into the drug sub-culture of Taiwan and may have been caught up in that, thus enticed into this crime, well then he will need assistance on his release from custody. But there is no evidence in that regard. On the other hand he has a background of being a supposedly "qualified chef" and that is an opportunity for him to find employment on his return to Taiwan. Certainly there is nothing in the psychological report to suggest that he presents as a danger to the community. Of course I am required also to consider the need for adequate punishment pursuant to s. 16A(2)(k) of the Act. It is clear as the Crown points out that giving weight to general deterrence in the context of the objective circumstances of the offending and the like that a term of imprisonment of substance should be imposed upon the prisoner.
Both counsel brought my attention to what they claimed were comparative cases, this is a very vexed area and I have already said in a previous judgment that Justices Baston and Johnson have written a very interesting article which nobody in the Commonwealth DPP ever seems to acknowledge that they have read, reflecting upon the role of the Crown, subsequent to the High Court decision in Barbaro, when a judge is given supposedly "comparative" cases. Frankly, it is just not good enough to give a table of cases and a summary of the cases and to say in a general way that these cases are "comparable" to the instant case. One needs greater assistance than that. If anyone who prosecutes people wishes to read the article which is in the July 2014 edition of the Judicial Officers' Bulletin last, it reflects in some detail upon the desirability of comparable cases being made relevant to the particular sentencing exercise. Little was done here in that regard.
In relation to the issue of the general pattern of sentencing I note the statistics that have been provided by counsel for the prisoner. They suggest in respect of the person with no prior convictions, on a single count, in respect of an offence of this type, without reference of course to quantities of drugs, that in respect of 32 cases in the period between 2011 and 2016 the sentences imposed were between one year and 14 years. I must say I am completely astonished that there are said to be only 32 cases because I must have sentenced at least eight or nine people, or maybe more over the same period of time and there are many more judges in my court in New South Wales sentencing offenders for these offences. Be that as it may I note the decisions of Yu [2016] NSWCCA 73, Dao [2011] NSWCCA 183 and DPP v Blackman & Jomaa [2014] NSWCCA 90, judgments therein concerned with the involvement in the importation or attempting to possess commercial quantity of border controlled drugs. Of course this is a case, of attempting to possess the drug, after the relevant drug had been intercepted by the police. But the facts of the matter are the use of the word 'importation' is meant here to be a general word and reflects upon people that are involved in the importation of drugs even if they do not actually get their hands on the relevant border controlled drugs.
In fairness, for completeness I also acknowledge I have read the other judgments that I have been provided. A judgment of the Court of Criminal Appeal of R v Karan [2013] NSWCCA 53, the decision of Considine [2013] NSWCCA 97, the West Australian decision of Tan [2013], the reference I have been given is WASCSR 42, R v Harris [2009] QCA 370 a decision of the Queensland Court of Appeal. I have noted of course many differences between those various people and the role of this prisoner, the drug involved, the purity, the character of the importation and the other variables that will come in sentencing. Notwithstanding what I have been referred to by the parties I also refer to, although again it is not determinative of the exact approach I should take, to the very helpful analysis undertaken by his Honour McClellan CJ of CL in the judgment of De La Rosa [2010] NSWCCA 194, where his Honour (at [207] - [224]) sought to analyse a large number of decisions in New South Wales and elsewhere and sought to try to categorise the type of offending involved in the importation of a commercial quantity of various border controlled drugs. Admittedly De La Rosa was a case about the importation of cocaine which involved a Crown appeal and ultimately threw up constitutional issues which required consideration by a Full Bench and I appreciate a deal of debate arises about which reasonable minds might differ concerning the utility of the categorisations that his Honour made. But, as I said his Honour in great detail went through a whole raft of decisions and sought to identify what he described as four groups of offender by reference to both their role and quantity of the drug and the benefit they received as well as what discounts or not they were entitled to for the pleas of guilty and assistance. I do not need to refer to that analysis in detail but I have had regard to it. Certainly, if I be so bold to say so, it reflects a wider range of scholarship than demonstrated in the helpful summaries that were provided by the Crown and by counsel for the prisoner.
With regard to matters required to be taken into account under s 16A, the facts of the matter are as the Crown properly pointed out in its submissions, the court is required pursuant to s 16A(1) to fix an appropriate sentence, having regard to the circumstances of the case. I am also mindful of the fact that the maximum penalty is a yardstick and a basis for comparison between the case before the court and what is described as "the worst case" (McCarry v R (2005) 228 CLR 357). Of course, it is to be remembered that in Veen v R (No 2), the decision of the High Court in 1988, as their Honours in the majority judgment pointed out, one can always "conjure up a worst case" than the case at bar. Clearly, as the Crown points out however, the maximum penalty here indicates that this is a very serious offence and one must be very careful in assessing the appropriate penalty to give proper consideration to all the matters that are relevant to assessing the objective criminality of the offending. The role of the prisoner, the quantity of the drugs, the value of the drugs, and the various other matters that might arise under s 16A for example, are relevant to the assessment of the appropriate sentencing, including the relevant favourable subjective matters.
I have endeavoured to address all the submissions that were made to me in the written and the oral submissions of the parties. If not expressly referred to I think fairly, it could be said, that at least implicitly all matters that have been raised with me have been taken into account.
Ultimately I concluded in all the circumstances that the appropriate starting point of any sentence I should impose on the prisoner should be nine years imprisonment. As I have indicated I am prepared to give the offender a 10% discount for facilitating the course of justice by his plea. Thus, I have concluded that the sentence I should impose, rounding it down by a few weeks, given the character of the percentage of the discount applied to a period of ten years, the head sentence should be eight years and one month. I have determined that the non-parole period should be five years. There is an extended period of parole supervision. When reflecting upon the parole supervision I have taken into account his prior good character as reflecting at least a capacity for reform and rehabilitation. This is the first time that he has been in custody. If released to parole, although that is unlikely, he would need an extended period of time of supervision to adjust to community living. I am mindful of the fact that there is a possibility of a need for some counselling on his release, although as I said by reason of the history he has given us it is not abundantly clear whether there is a specific contributing factor to his offending but will need attention on his release from custody. Determining the minimum term in custody I have had regard to the fact that if it be the time that he spends in custody there will be some disadvantage for him in custody through his lack of English, both as to his access to programs the circumstances in which he will spend his time in custody separated from family. But, as I said, inevitably that is a matter that is brought upon offenders by committing crimes warranting the imposition of substantial terms of imprisonment.
Mr Chu could you stand up thanks very much. In relation to the crime to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment of eight years, one month, that will commence on 20 November 2014 and on my calculation will expire on 19 December 2022.
In respect of you I fix a non-parole period of five years that will commence again on 20 November 2014 and expire on 19 November 2019.
You can take a seat thank you. That date I've given you 19 November 2019 is the earliest time that you can be considered for parole, whether you will be released to parole on that date will be a matter for the authorities, the Parole Authority here in New South Wales no doubt in consultation with the Commonwealth authorities. Inevitably you will be deported from Australia when you've finished your imprisonment so even if you are released on 19 November you will be required to go into what's called immigration custody of some description and ultimately you will be deported to Taiwan. You must understand however that you are required whilst on parole to be of good behaviour because your parole can be revoked and you can be returned to custody if the Australian authorities have the power so to do.
Yes madam Crown any technical matters from you?
COOKE: No your Honour thank you.
HIS HONOUR: Any technical matters from you sir?
TING: No your Honour.
HIS HONOUR: Obviously it goes without saying, although I haven't expressly referred to those matters, I've obviously taken into account the relevant provisions in the Commonwealth Crimes Act, relating to the appropriate procedure in fixing terms of imprisonment, the term of imprisonment of course would be a matter of last resort to use the colloquial expression, but clearly no other penalty other than imprisonment can be imposed in this case and as I fixed a term of imprisonment greater than three years I am required to fix a non-parole period in the matter.
Mr Interpreter could you ask the prisoner has he got any questions of me about the sentence that I can answer or attempt to answer at this point?
INTERPRETER: No I do not have any questions your Honour.
HIS HONOUR: Thank you Madam Crown very much for your assistance. Thank you sir for your assistance, we'll adjourn the court.
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Decision last updated: 14 June 2017