R v Fu [2022] NSWDC 381 | Case summary

R v Fu [2022] NSWDC 381 | Case summary | Zoe

Federal offence

I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].
The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial, and the utilitarian value of the plea is high. I am satisfied that the offender's plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.
I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].
For a federal offence the non-parole period or recognisance release period is the minimum period that that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[9]

Package 546

On 12 April 2021 a consignment was intercepted by ABF addressed to Xuyan Li at Li's address in Waitara (package 546). Li had earlier provided his address to the offender for the purpose of receiving packages. The offender had provided those details to unknown others who arranged for package 546 to be sent from the United Kingdom.
The consignment consisted of three smaller boxes of a white crystalline substance that was later analysed as 2.97 kg of ketamine, with a purity of 81%, making a pure weight of 2.405 kg.
On 16 April 2021, police reconstructed the package and arranged for a controlled delivery of it. The package was scanned by Australia Post and allocated for delivery on 20 April 2021.
On 19 April 2021 the offender corresponded with a contact "S" on WeChat in which he described Xuyan Li as a "kid who works under us". The offender advised Li to expect a delivery the next day. S asked the offender if Li would be home and when it was expected that he would receive the package. The offender responded that Ken [Wong] would collect the parcel and settle the account.
Later that day, Li provided the offender with an address in Hornsby. The offender enquired if that address had been used before and Li assured him it had not. The offender told Li he needed one more address.
On 20 April 2021 the offender told Li to keep his eyes open for the package, not to let anyone else get it and that they would make sure that they got paid. Li asked about the "remaining 500". The offender told Li that the package had been delivered. Li said that it had not and that he would go to Hornsby Post Office after school. The offender directed Li to take his passport to collect the package that day before the Post Office closed.
At about 3.10pm, Li attended the post office to collect the package. Li sent a message to the offender stating that he had picked up the package, that there were police cars downstairs and to send a car quickly. Li provided his location to the offender.
At about 3.45pm police arrested Li trying to get into an Uber that had been sent by the offender, with a destination of an address in Bathurst Street, Sydney.
Li told the police that he had collected the package at the request of the offender. Police followed the Uber to its destination, where they saw the offender waiting on the street using his mobile telephone. The offender provided the police with his mobile telephone at their request and unlocked it. The police located messages on WeChat and the tracking information for the package.
The offender told the police that he was waiting for a friend to deliver a package to him in an Uber but denied knowing what was in it. He took the police to his apartment on the 36th floor, where a preliminary search was conducted with the consent of the offender. The offender told the police that he was directed by a third party to pick up the package. The offender was arrested and declined to be interviewed.
On 24 April 2021 Wong exchanged Facebook messages with a person described as "Alex Lu", in which he stated, "two of my underlings were caught a couple of days ago".

[20]

The offender's subjective circumstances, prospects of rehabilitation and remorse

The offender is presently 19 years of age and was 18 years of age at the time of committing the offences.
The offender is an only child, who was born and raised in China. His father was a businessman and often only home once or twice per month. His mother was a deputy principal at a university. He was mostly raised by his mother who was very controlling and strict on him. His parents argued about him and blamed each other for the offender's inadequacies as a son. He was physically disciplined as a child up until the time when he came to Australia.
The offender attended boarding schools in China and only return home in weekends. He did well at school but found it tiring as it involved academic and other activities from 7am to 9pm daily. He did well at school and played representative football. He did not have many friends and experienced some bullying.
He came to Australia at age 15 to complete high school. He had difficulty adjusting arising from being separated from his family and managing his daily affairs. His relationship with his parents deteriorated when he tried to explain to them that their $100 per week payment to him was insufficient to meet his needs.
The offender enjoyed school in Australia and made friends. He got a job working as a waiter in a restaurant from 4pm to 11.30pm five days a week to help to support himself. He found this tiring and his grades suffered. He found it hard to wake up and get to school and to retain what he had learnt.
While he was in Australia his parents continued to be critical of his academic progress, telling him he was "wasting their money" and that he was a failure and a disappointment to them.
At the time of the offence, the offender worked 9am to 9pm in an internet café and was pursuing secondary education online. He had a girlfriend of two years at the time of his arrest, but that relationship broke up two months after he was taken into custody. His girlfriend found out about his involvement in the offences a few days before his arrest and begged him to stop. She was very upset. He persisted because he didn't realise the gravity of his actions and the extent of the potential legal ramifications. He broke down when telling the psychologist of the emotional impact that his arrest had on his girlfriend.
The offender agreed with the facts but was unsure how the latest version of the proceeds of crime offence came about. He purchased the pistol online from a site in Australia. He stated that he was unaware that the possession of it was illegal in Australia. As to the principal offence, he told the psychologist that he was initially asked to collect and deliver some parcels by some acquaintances and that he asked his friend Mr Li to provide some names and addresses for deliveries. He knew that what he was doing was wrong and illegal but was persuaded by the money and reassurances that nothing bad would happen. It was not until he was arrested that he realised how serious it was. He wanted to give his girlfriend a better life and he was motivated by the money. Prior to becoming involved in the offence he had struggled financially in Australia and had to ask his girlfriend for money for food when they first got together. He had undertaken a number of part-time jobs simultaneously to make ends meet and that is where he met the people involved in the offences.
The offender has been housed in Parklea Correctional Centre for all but about one week of his time in custody. He has experienced about four to five months of that time affected by COVID-19 restrictions, including 24-hour lock-ins. He has experienced disrupted sleep and increased stress levels. His mood was very low following the death of his grandfather, who he was close too, and the hospitalisation of his father. When he is not locked down, he has been working in the kitchen seven days a week and has a sweeper role. He attends the prison library each week and speaks to his mother regularly.
The letter from the offender's father is compelling. The shame, hurt and emotional distress conveyed by it is palpable. The offender's father unequivocally accepts responsibility for neglecting his son emotionally and for the consequences that has led to. He states that the offender's arrest has taken a significant emotional toll on his mother and that she has been unwell. The offender's father wants the chance to make good his mistakes by supporting his son when he returns to China to help him find a job and to prosper.
The offender told the psychologist that he understood the impact his offending has had on his family, his girlfriend and the community. He expressed remorse for his actions. He accepts that he deserves to be punished for what he did. He also expressed remorse to Dr Furst, in his letter to the Court and during the course of his oral evidence.
The offender plans to return to China and to pursue a career in commercial cookery. He told the psychologist that he has a lot to prove to his parents.
The psychologist opined that the offender was suffering mild psychological distress at the time of the consultation (March 2022), with mild symptoms of depression and moderate symptoms of anxiety. He was assessed as having normal levels of impulsivity. Dr Furst opined that the offender had probably suffered some anxiety related panic attacks whilst in custody.
I accept the psychologist's opinion that the offending conduct arose as a result of the interplay of situational stressors and personal factors. He was brought up in strict and harsh conditions in which he was deprived of autonomy, love and a fatherly role model, which was followed by financial, social, developmental and emotional deprivation involved in adopting to a new life in a foreign country with a different language, culture and legal system, as a teenager. His expected level of independence was unrealistic and not consistent with his needs as a young adolescent. His behaviour demonstrated naivety, limited coping skills, poor consequential thinking and immature problem-solving skills that all led to poor judgement and decision-making when exposed to anti-social acquaintances who were prepared to exploit him.
The psychologist referred to accepted research that demonstrates that adolescence is: 1. a unique developmental period associated with high risk taking, poor self-regulation and immature executive function because the brain is still developing; and 2. a time when risk appraisal is reward-biased and discounts negative outcomes.
The psychologist opined that the offender had a number of positive prognostic factors, indicating that he has strong prospects of rehabilitation, including; 1. a lack of prior misconduct in his childhood; 2. a history of stable romantic relationships and employment; and 3. his willingness to work in custody and to engage in further study with firm plans for the future.
The psychologist opined that the offender will not obtain much benefit from the programs offered in custody due to his lack of criminogenic risk factors, strong prospects of rehabilitation and limited English skills. The psychologist opined that he would benefit from some psychological counselling to address his childhood issues and his psychological distress as a result of being in custody.
Dr Furst was supportive the psychologist's opinion and it is unnecessary to set out his opinion.

[21]

Objective Seriousness

The offender provided names and addresses to be used for the delivery of consignments. He directed Li to collect packages and deliver them to him and to provide him with names and addresses. He also allowed consignments to be delivered to him at addresses he provided.
The offender monitored the delivery information for consignments to pass on to others, including Li and Wong. He corresponded extensively with Li via WeChat about all aspects of Li's involvement. The offender negotiated payments to Li for his involvement.
The offender was responsible for taking delivery of packages from Li and passing them on to Wong and others.
The offender was directed by others including Wong and S. The offender was in communication with both Wong and S as to the progress of deliveries and the provision of names and addresses.
The offender knew that the packages contained drugs and from the size and weight of the packages had knowledge of the approximate quantity, but not the purity. The offender did not know the precise quantity of drugs in each package.
The offender played an intermediate role in the organisation. He used Li to distance himself from the risk of detection. His conduct was planned and premeditated and persistent over a period of time. His involvement came to an end through his arrest. His course of conduct involved a series of criminal offences.
The drugs imported consisted of 249g of pure heroin, 500g of methamphetamine of unknown purity and 7,970g of pure ketamine. The quantity of drugs was substantially above the commercial threshold.
The offender committed the offences for financial gain.
The possession of the unauthorised pistol offence is of low objective gravity. There is no evidence of any improper use of it. It was incapable of causing serious injury or death. The offender volunteered that he had it in his possession. I accept his evidence that the possession of the pistol was not connected with the importation offence.
I have taken into account the maximum penalty for the offences.

[23]

Other Matters

The offender was 18 at the time of the offences and psychologically immature. I accept the psychologist's opinion that the offender was expected to fend for himself in Australia at age 15, when he did not have the appropriate skills or experience to do so. His immaturity led to poor judgement and decision-making and allowed him to be taken advantage of by others. I am satisfied that the offender was not fully aware of the consequences of his actions by reason of his immaturity which was a significant factor in the commission of the offences and accordingly his culpability for the offences is reduced. In this case, general deterrence, retribution and denunciation should be afforded less weight and greater weight should be placed on rehabilitation.
The offender had a difficult upbringing that led to his immaturity and the need to fend from himself at a young and impressionable age without proper support or guidance. The circumstances of his upbringing led to his judgement and decision-making being compromised and this reduces his moral culpability for the offences to some extent.
The offender did not have a record of prior convictions and was a person of good character.
The offender has expressed remorse to the authors of the various reports and to the Court. I am satisfied that he understands the impact that his offending had on the community and that he accepts responsibility for his actions. I am satisfied that he is genuinely contrite. His plea of guilty also indicates remorse.
The offender has strong prospects of rehabilitation. The offender has used his time productively in custody working and making plans for the future. He has strong social support in China and intends to return there and pursue a career in cooking. He has no history of drug or alcohol use. His mental condition can be improved by psychological counselling to address the issues relating to his childhood. The offender has demonstrated by his behaviour in custody that he has the capacity to reform and mould his character to conform with social norms and the sentence imposed should give him an opportunity to rehabilitate himself.
The offender co-operated with the authorities at the time of his arrest by giving them access to his mobile telephone, allowing them to search is apartment and by telling them about the pistol.
The offender has experienced harsh conditions in custody as a result of the COVID-19 pandemic. He has suffered some anxiety and depression as a result of being in prison.
I am satisfied that the conditions of his incarceration have been difficult for him and I have taken that into account in arriving at the appropriate sentence.
The offender's incarceration has caused his mother significant emotional distress and some ill-health.
I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise.
I have had regard to the sentences that I will impose on Donghao Li and Mum Kit Lock for their different roles in the same organisation.

R v Fu

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (11)

Cited By (1)