R v Hae

District Court of NSW|2021-09-03

Solicitors: Commonwealth Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Offender) File Number(s): 2019/00273573

SENTENCE

Edwin Hae was found guilty following a trial by jury which proceeded at Parramatta District Court in June 2021. On 21 June 2021 the jury returned a verdict of guilty with respect to the single count on indictment of aiding and abetting an attempt to possess a substantial quantity of methamphetamine at Wetherill Park on 30 July 2019.
The offence was charged pursuant to the provisions of s 11.2(1), 307.5(1) and 11.1(1) of the Criminal Code (Cth). The quantity of methamphetamine was in excess of the commercial quantity relating to a border-controlled drug and the offence charged carries a maximum penalty of life imprisonment.

ROLES OF THE CO-OFFENDERS

The nature and methodology with respect to this prohibited border-controlled drug displayed a degree of some sophistication and planning. The purported addressee was a legitimate coffee shop and coffee business. The method of concealment of the actual drug was consistent with the type of product expected to be imported by that business. The packaging for the purpose of concealment was professional and the mode of tracking the package through the mail and its anticipated collection from the Post Office, rather than actual delivery to the addressee, indicates a level of pre-planning and organisation.
In cases where an importation is effected by items being physically carried into Australia by means of a courier, a court is often placed in a position of endeavouring to ascertain whether the person was acting on their own behalf or at the behest of others. In some circumstances the fact that a person has been recruited as an effective "mule" is readily able to be perceived. In other cases, whether they were acting as part of an organisation or perchance on their own behalf as, in effect, a principal in the importation, is more difficult to be determined.
In this regard, the observations of the High Court in R v Olbrich (1999) 199 CLR 270 are pertinent. In such a situation the court is required to simply sentence the person on the basis of what they actually did, without the ability of understanding matters which are peculiarly within the knowledge of the offender.
In the present matter, neither the offender, Hae, nor Maraivalu, had any apparent connection with Laos. I clearly draw the inference that there was some level of international organisation which had gone into the arrangements which culminated in the package which had been despatched from Laos arriving at Wetherill Park Post Office.
Maraivalu was, as I suggested the jury might find in the course of the summing up, at the point of most exposure if the authorities were monitoring the importation and delivery of the package. He went alone into the Post Office whilst the co-offender Hae remained outside listening on an open line to what was taking place inside. Maraivalu physically took possession of the package and its contents. He was charged and pleaded guilty to attempting to possess the methylamphetamine due to the impossibility of actually taking possession of it as a consequence of the fact of the substitution.
The offender's connection with the imported package was, in part, evidenced by his enquiries with Australia Post in the days preceding the delivery. His role, in aiding and abetting, or in simple terms, assisting, the obtaining of possession of the package by Maraivalu comprised three essential acts. The three bases relied upon by the Crown to establish the offence of aiding and abetting were firstly, recruiting the driver of the vehicle, Mr Ulai, for the purpose of conveying the offender and Maraivalu to the vicinity of the Post Office; secondly, the provision or handing over of the letter of authority for the purpose of the collection being effected; and thirdly, conducting what was described as counter-surveillance in walking down Victoria Street and waiting outside the Post Office whilst monitoring an open line in order to be assured of the safe collection.
I am satisfied, consistent with the verdict of guilty by the jury, that each of these three bases are established.
This, to some degree, places the present offender marginally above the collector of the package, Maraivalu, both in exposure and, likely, in a broad consideration of hierarchy.

PARITY

The co-offender who physically collected the drugs, Sentiki Maraivalu, pleaded guilty to one count of attempting to possess a commercial quantity of a border-controlled drug, namely methamphetamine. Maraivalu initially maintained a plea of not guilty and had been arraigned on a joint indictment with Edwin Hae on 26 June 2020. A joint trial date in July 2021 was set at that time.
In September 2020, the legal representatives for Maraivalu advised the Crown of an intention by Maraivalu to plead guilty. He was re-arraigned and entered a plea of guilty on 26 November 2020. His plea was entered on the basis of recklessness rather than actual knowledge. It was common ground that he did not know the quantity of the drug which was contained in the package. Maraivalu's role was assessed by the sentencing judge, his Honour Judge Bourke SC, as being "something more than being a mere courier." Judge Bourke found that Maraivalu had clearly had discussions with Edwin Hae before going to the post office where he represented himself as the agent for the addressee and presented documents which had been given to him by Mr Hae.
Judge Bourke allowed a utilitarian discount, given the timing of the plea, of 15%. Maraivalu was sentenced to a head sentence of 8 years and 9 months with a non-parole period of 4 years 6 months. Whilst recognising that sentencing and the allowance for an arithmetical discount does not necessarily equate to a strictly arithmetical calculation, it would appear that Judge Bourke SC commenced with an undiscounted sentence of between approximately 10 years 3 months and 10 years 4 months before allowing a 15% discount.
I am conscious of and will bear in mind the relevant principles applicable to the question of parity, and I note the observations of the High Court in R v Green (2011) 244 CLR 462, that the foundation of the parity principle is in the norm of equality before the law requires that its application be governed by a consideration of substance rather than form.

SUBJECTIVE FACTORS

The offender did not give evidence either in the trial or on the sentence proceedings. A psychological report from Megan Godbee, forensic psychologist, dated 23 July 2021 was tendered on his behalf.
The offender is now 34 years of age, having been born on 30 November 1987. He initially grew up in Fiji before moving to Sydney at about the age of 6 with his mother and a younger sister, together with a maternal aunt and uncle. His father had left the family when Mr Hae was an infant. His mother worked as a nurse and the offender was cared for predominantly by his aunt and uncle while his mother was at work. He described them as "second parents." All three adults shared responsibility for disciplining the children and he described receiving what he called a "hiding" as typical punishment.
His mother had entered a new partnership when the offender was about 17 years of age. Mr Hae described his relationship with his stepfather as being "up and down." He described his aunt and uncle having died within a few months of each other when he was about 24. His grief over their deaths was compounded when his mother and the man who had become his stepfather separated when he was in his mid-20s. He described the difficulty of seeing his mother distressed. He had in fact moved out of the family home at the age of 22 to reside with his then girlfriend.
The account provided to the psychologist included a description of his school life which he had found difficult. He was picked on and bullied by other students. He recalled being suspended on one occasion for fighting the bullies. He played rugby at school and in due course developed some friendships. He described his academic grades as being average although he completed the Higher School Certificate.
After leaving school he did two years of a roof-tiling apprenticeship but did not complete that apprenticeship. He thereafter was in consistent employment and primarily worked in construction, warehousing and personal training.
He described having first consumed alcohol at the age of 15. His drinking increased thereafter and particularly in his late 20s when he experienced a level of depression. He reported using cannabis on intermittent occasions, perhaps once or twice per year, during his late teens and early 20s.
For the four years prior to his arrest, after being introduced to cocaine, he described using it every weekend during the four years before his arrest. He also gambled on weekends during this period, reportedly up to $500 at a time. He described having remained drug-free since entering into custody.
He was married at the age of 23 and has two sons aged 11 and 10 and an 8 year-old daughter. He told the psychologist that he had commenced an extra-marital affair at the age of 29 which lasted for almost 2 years. He did not elaborate the circumstances of that affair ending or how it came to the knowledge of his wife. They had apparently reconciled and he described them both appreciating one another more and the relationship continuing successfully.
The offender described episodes of depression in his late 20s and early 30s which would appear to have culminated in suicidal ideation including an episode where he had intended to die by drowning but chose to swim back to shore at the last minute.
In addition to the psychological report, a number of references were tendered in support of the offender. A letter of reference from his wife, Esther Hae, dated 20 August 2021 was part of Exhibit 3 in the sentence proceedings. Mrs Hae advises that she and the offender have known each other for 15 years and have been married for 10. She describes their three beautiful children, two boys and a girl, who range between 8 and 11 years of age. She outlined the difficulties as a consequence of the pandemic including having lost her job. She described the difficulties of her financial situation following the arrest of her husband. She described, however, that having him at home out on bail while waiting for his sentencing had been, in her words, "so good for me and the kids, mentally, physically and spiritually." She described his receipt of Centrelink benefits whilst on bail which had helped out the financial situation. She described the offender as being completely remorseful and how he had been rehabilitating himself during his house arrest.
An additional reference was provided by the offender's father-in-law, Jacob Lama, who is also the pastor of the church that the offender has been attending on Sundays. Pastor Lama described observing the offender grow from a young adult to the man who married his daughter, Esther Lama, who is now Mrs Hae. The offender was described as being very caring, responsible, mature and community-minded. He had been a youth leader at the local church between 2011 and 2016 and had obtained certificates from the bible college in what was described as "Youth Pastoral." He was involved in mentoring young Pacific Islander teenagers and in volunteering at community and youth centres. He had been entrusted with the care of in excess of 30 young teenagers at the time of his leadership in their programs. In the opinion of his father-in-law, he had become a loving father, a good husband, and was very respected in his family, the church and the community.
An additional reference was also provided by Onisimo Raileqe who conducts his own construction business for which the offender had been an employee. Mr Raileqe described knowing the offender for over 25 years "being his employer and a family member of his." He spoke of the offender being very sociable and a fun-loving individual and family man. He expressed the view that the current matter was as a result of "bad influences." Mr Raileqe stated that he had not known the offender to have had any involvement in drugs. He described him as deeply regretful for this unacceptable behaviour.
The offender has an antecedent criminal history which is not extensive. He was convicted of driving an unregistered vehicle whilst his licence was suspended shortly before his 19th birthday. At the age of 31, he was charged with offences of stealing from the person on separate dates approximately 2 weeks apart in May 2018. The offences had occurred respectively in February and March 2018. In April 2019, he was placed on a 2-year Community Correction Order at Fairfield Local Court with respect to the second stealing charge in time. He was subsequently placed on a CCO for 3 years in August 2019 at Parramatta Local Court with respect to the first charged steal from person offence. He was subject to the first Community Correction Order for the period of 2 years at the time of the commission of the present offence on 30 July 2019. He was, however, not arrested until 2 September 2019, by which time the second Community Correction Order for a period of 3 years had been imposed a little over a week earlier on 22 August 2019.
He thereafter remained in custody, bail refused, from the date of his arrest on 2 September 2019 until he was granted bail on 27 May 2021. The offender was granted bail in the Supreme Court of NSW on 27 May 2021, less than 2 weeks before his trial was due to start in the District Court.
Following the jury verdict of guilty on 21 June 2021, no detention application was made and his bail has thereafter been continued.

SENTENCING FOR COMMONWEALTH OFFENCES

Section 16A(1) of the Crimes Act 1914 (Cth) provides that the governing principle for the imposition of a Commonwealth sentence is that it should be "of a severity appropriate in all of the circumstances of the offence." The Court is required to take into account the matters which are listed in 16A(2) to the extent that such factors are relevant and known to the court. The need for general deterrence must be relevantly taken into account.
The maximum penalty prescribed for the offence before the court is life imprisonment. This maximum penalty reflects the clear indication of the seriousness with which Parliament has viewed the offence and is required to operate as a guidepost or yardstick to the imposition of an appropriate sentence: see R v Markarian (2005) 228 CLR 357.
Principles relevant to the sentencing of Commonwealth drug importations have been set out in a variety of cases including the observations of the High Court in Wong v R [2001] HCA 64; (2001) 207 CLR 584 and subsequently summarised in R v Nguyen and Pham (2010) 205 A Crim R 106 by Justice Johnson. These principles include an assessment of the criminality of a particular offender by virtue of a consideration of their involvement in the steps taken to effect the importation; an assessment of role where able to be ascertained; the weight of the drug as a relevant factor, albeit not the principal factor; the inference in the absence of evidence to the contrary that a person connected with an importation of drugs is doing so for profit; the significance of deterrence and the difficulty of detection; and a diminution in the weight to be given to prior good character.
An assessment of the role played by an offender and where they may sit in any criminal hierarchy which may be connected with the importation, is not always possible to be established with precision. This was the circumstance which the High Court of Australia dealt with in R v Olbrich (1999) 199 CLR 270 where Olbrich, having physically imported the heroin, claimed, in evidence led in mitigation of his role, that he was a paid courier acting on behalf of another. The sentencing judge (Howie QC DCJ) had not accepted that account. The High Court held that "identification of the precise nature of the accused's involvement in an act of importation of prohibited imports" was not an essential aspect of the sentencing process. In prescribing that the sentence should be directed at what the offender actually did, the High Court said that "characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did."
In the present matter, the defence submission was that the role of the offender, which requires satisfaction beyond reasonable doubt, should be limited to finding that he recruited the driver and nothing more. I have indicated earlier in these Remarks that I am satisfied beyond reasonable doubt that in addition to recruiting the driver, the offender took an active role in arranging Maraivalu to be in the position of most exposure and to physically collect the package. He handed to Maraivalu the forged letter of identification and authority to facilitate the collection and provided actions described as "countersurveillance" in approaching the vicinity of the Post Office first and maintaining an open phone line in order to listen to the successful collection before returning to the vehicle.
The overall circumstances were such as to permit the jury to have found that the offender had the requisite knowledge or expectation or belief that the package was likely to contain a substantial quantity of an illicit drug. I am satisfied beyond reasonable doubt of that belief or expectation. There is, however, no evidence that the offender would have known the precise quantity of the substance actually being imported.
Statutory factors set out in s 16A(2) include contrition and a guilty plea that are not relevant to the present matter. The plea of not guilty meant that the matter went to trial and the offender maintains his innocence in the accounts provided to the psychologist.
The itemised statutory considerations set out in s 16A include the consideration of both general and specific deterrence. The significance of denunciation, specific deterrence, and, of course, general deterrence has frequently been described as "an obvious need": see, for example, Button J with whom Schmidt J and Meagher JA agreed, in Chen v R [2018] NSWCCA 157.
Whilst there is no direct evidence of the actuality of an anticipated financial gain, it is an invariable inference that the risk inherent in committing the offence was likely to lead to some level of financial gain. In the circumstances of the present matter, I would draw the inference that such an incentive was likely the driving motivation for this particular offender.
I have also taken into account the ongoing restrictive circumstances within the Corrective institutions in NSW as a consequence of the COVID-19 pandemic response by Corrective Services.
As indicated earlier in these Remarks, the appropriate sentence for the present offender is guided to a not insignificant degree by a consideration of parity with the sentence applied to his co-offender, Maraivalu.
Edwin Hae, however, had a more extensive involvement in both his conduct and in the time of his involvement in the circumstances leading up to and surrounding the collection of the package by Maraivalu.
I have had regard to the schedule of comparative cases which has been provided by the Crown which provide additional guidance with respect to the application of principle with respect to Commonwealth importation offences both in NSW and in other states.
I have taken into account the period of time previously spent while bail was refused which has been calculated as 1 year 8 months and 26 days between the date of his arrest on 2 September 2019 and 27 May 2021. I am unaware of the reasons for the grant of bail in the Supreme Court on 27 May 2021 which, as I observed earlier, was less than 2 weeks before the date fixed for the commencement of the offender's trial. He has thereafter remained on conditional liberty with daily reporting conditions and a curfew which effectively amounted to house arrest. He was only permitted, under the conditions of his bail, to leave his home for the purpose of reporting to police, attending to a medical emergency, or attending court or the offices of his solicitors or counsel. He was also restricted in his access to social media applications such as Facebook or WhatsApp.
In all of the circumstances, I propose to allow approximately 50% of that time of such restricted liberty to be taken into account in a similar way to periods spent in full-time residential rehabilitation clinics. I propose to allow a period of about 3 months which is intended to reflect 50% of the period of approximately 6 months that he has been subject to such restrictions on his liberty.
With some approximate rounding, the sentence which I propose will be backdated to commence on 1 December 2019.
Edwin Hae, if you'd stand up, please, sir. You are sentenced to a term of full‑time imprisonment of eleven years. There is no statutory ratio with respect to a Commonwealth offence and I have assessed the minimum period required to be served in order to meet the requirements of sentencing to be a non‑parole period of five years and six months. Both that non-parole period and the head sentence will commence on 1 December 2019. The non‑parole period, accordingly, will expire on 31 May 2025 and the head sentence will expire on 30 November 2030. You can have a seat, Mr Hae.
I am required to explain to you that you will be eligible for release, subject to considerations of the parole board on 31 May 2025. The court will adjourn.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2022

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