Solicitors:
Director of Public Prosecution (Cth) - Crown
Legal Aid NSW - Offender
File Number(s): 2013/341952
[2]
Sentence
HIS HONOUR: Ming Jen Kuo pleaded guilty to a charge on indictment alleging that he between 14 October 2013 and 12 November 2013 at Sydney in the State of New South Wales attempted to possess a substance being a border controlled drug, namely methamphetamine, a quantity to be possessed being a commercial quantity. I have summarised some of the verbiage of the original charge.
This plea of guilty was entered by the prisoner after he had been committed for trial and after a trial date was fixed. It was indicated to the Court that a plea of guilty would be entered. According to my note as I do not have a transcript of last Thursday's proceedings, approximately "a week before" the trial was to commence. As I understand it in due course the plea of guilty was entered on the date the trial was to commence.
I have noted the careful written submissions of the Director of Public Prosecutions presented by his learned representative and the submissions of the accused in respect of the issue of a discount being given, if at all, to recognise the facilitation of the course of justice by the entering of a plea of guilty.
I appreciate this is a discretionary matter and the Crown's written submissions particularly set out a number of issues that have arisen in the consideration of this matter in sentencing for Commonwealth offences in New South Wales. There is in fact recent authority of the Court of Criminal Appeal which suggests that the strength of the Crown case may be more significant than the timing of the plea in this regard.
Accepting all that has been put by the parties I have concluded that a discount of 12% should be given to the prisoner upon the otherwise appropriate sentence to recognise the facilitation of the course of justice by the plea of guilty.
The offence to which the prisoner has pleaded guilty has a maximum penalty of life imprisonment and/or a fine of $1.275 million. There is no prospect of the prisoner being in a position to pay a fine. The quantity of the methamphetamine that was imported in pure weight was 3.10 kilograms. The substance that was imported had an average purity of approximately 78%. A commercial quantity of the border controlled drug methamphetamine I am informed is .75 kilograms.
The prisoner is a citizen of Taiwan but had travelled to Australia from mainland China in circumstances I have outlined shortly. He was born on 21 December 1985 as I understand the matter. Thus he committed the subject offence when he was 27 years of age about to turn 28 and is now 29 years of age.
The AFP inquiries reveal that he has no known prior criminal convictions. I am prepared to accept generally that he was a person of good character for that reason.
There is a statement of facts. The bare telling of the story within that statement of facts is not in dispute. The real issue in this matter is whether or not the prisoner was acting under what is described in the authorities as non exculpatory duress, the topic discussed in a number of decisions, but particularly I refer to Tiknius v R [2011] NSWCCA 215 and the learned judgment, as usual, of his Honour Johnson J, particularly at [30]-[54].
The prisoner gave evidence in relation to this matter and the evidence he gave, as well as the earlier history he had given to a psychologist, was very different from the version that he gave to the Australian Federal Police when spoken to on his arrest and then when subsequently interviewed, having regard to the material presented to me, summarised his representations in those interviews.
Some of the submissions of the prosecution anticipating the factual issue in part to turn upon the truth of some of those representations made or admissions made to the Australian Federal Police operatives and officers.
The prisoner arrived in Sydney from mainland China I am informed on 14 October 2013. He came here with a tourist visa that he had obtained in August 2013. As I understand the matter his visa was to expire in January the following year. He stayed two days in a hotel and then he moved into accommodation in the character of some former boarding house at 191 Stoney Creek Road Beverly Hills. This is in southern Sydney, not far from Hurstville.
The consignment carrying the border controlled drugs, or if I might shortly call them the "drugs", arrived in Sydney in early November 2013 addressed to the prisoner by name at the address that he had acquired at Beverly Hills after his arrival in Australia. I would safely assume that the details as to the consignor and other information concerning the origin of the consignment was false information.
The consignment comprised, as I understand it, allegedly a number of tiles. The consignment when it came into Australia was x-rayed and ultimately after some anomalies were detected a white crystalline substance wrapped in plastic and carbon paper was found inside at least some of the tiles that form part of the consignment. I was not favoured with photographs of the consignment in its undeconstructed and then deconstructed state.
In their usual efficient way the Customs Service and the Australian Federal Police examined the consignment and ultimately substituted for the methamphetamine an inert substance. The consignment with the inert substance was delivered to the address where the prisoner was present on 12 November 2013 in the very late morning.
He signed for the consignment and had the consignment moved to a small, self-contained room at the rear of the premises. I am informed the consignment apparently remained unopened until the time that the police attended upon the premises approximately four and a half hours after the delivery to arrest the prisoner.
The prisoner made admissions at the time that he was arrested as to his possession of the methamphetamine, but he said he was not planning to "on sell it", an English translation no doubt of things that he said to the AFP, although he may have said that in English.
He did know from these admissions to the AFP, which I accept to be true, that methamphetamine was within the consignment and he obviously was expecting it.
In a later recorded interview he gave what I am satisfied was a false account of how the consignment came to be at his premises in Beverly Hills. He claimed that he had purchased two kilograms of methamphetamines from a person in China he had described as the "boss". He sent that person his address at Beverly Hills and was given a tracking number for the consignment, which apparently he used to monitor the consignment's progress. He said he was an amphetamine user. His history to the psychologist reveals he has only occasionally used amphetamines, if I might use that generic expression, and he was not a regular amphetamine user at the time of his arrest.
He told the AFP officers that he had not used amphetamines since he arrived in Australia, but claimed in the interview that the methamphetamines were for his personal use which one might have thought was completely ridiculous given their value and the quantity.
This account that he gave to the AFP, based upon a version that he has given in his evidence and through the psychologist's report to some extent, was a manufactured account that he had been provided by the people that had recruited him in China if he was arrested when he was here in Australia.
To my mind the account he gave to the AFP and his adoption of it as a version that he should give, given its preposterous character, reflects something of his naivety in relation to the situation in which he found himself here in Australia.
As I said earlier the primary matter that arose in the evidence, particularly the oral evidence of the prisoner and which occupied a great deal of the submissions made, was whether the prisoner had committed the offence in consequence of what is described as non-exculpatory duress.
It is submitted in detailed, but succinct written submissions from the counsel for the prisoner, that this would diminish or mitigate the moral culpability of the prisoner for his offending and I accept that if non exculpatory duress is made out, depending on the degree of it and of all the relevant circumstances this will mitigate the moral culpability of an offender and be relevant to the assessment of the objective seriousness of the offending.
These matters are discussed as I said by Justice Johnson in the judgment which I earlier cited and he confirmed the existence of this matter as a relevant matter in sentencing under Commonwealth legislation, notwithstanding the absence of any reference to it in s 16A Crimes Act 1914. It goes without saying, of course as the Crown rightfully submits, that I am required to sentence the prisoner in accordance with the various provisions or relevant provisions of Pt 1B Crimes Act 1914 (CTH).
Justice Johnson said, "It will be necessary for the sentencing judge to make factual findings as part of an assessment of whether this factor, that is non-exculpatory duress, assists the prisoner on sentence and if so to what extent?" He then dealt with the issue of the matters arising in that case. The defence of duress had been run at a trial which did not occur in this Court.
He also analysed the character of non-exculpatory duress and he pointed out quite properly that there were a number of cases where an offender claims on sentence that his or her involvement in a drug importation or supply offence was a product of threats to self and family, with the threats sometimes coupled with the demand by those making the threats that involvement in the importation is required to discharge an existing debt. Whether an offender's claim of this type is accepted he said depends, "of course on the facts of the particular case" [44].
He said that speaking generally, sentencing courts were entitled to approach claims of this sort with a significant degree of circumspection. Claims can be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon the offender. It has been said also that verification of a spurious claim of duress may prove difficult [45].
His Honour pointed out that a careful and close assessment of evidence adduced to support such a claim should be made with the onus of proof upon the offender kept firmly in mind [47].
He pointed out that even when non-exculpatory duress is made out general deterrence will still have a role to play. In fact it may be in a particular case where it has been made out by an accused that general deterrence will gave greater significance for the purpose of deterring others from succumbing to such threats that are alleged to be made and cited a number of authorities relative to that proposition.
In my view the prisoner in this matter has not discharged the onus upon him to establish on balance that he acted under non-exculpatory duress.
He gave an account, which in part I do accept, that he was in mainland China as a carer for a patient who came from Taiwan but went to China for some form of treatment.
His history in the psychological report as an adult reflected upon the fact that he was, as I said earlier, an occasional drug user, but not addicted to any particular prohibited drug and was an occasional gambler, although not a heavy gambler. He reflected upon his mother who was widowed when the prisoner was a child being a person with problematic gambling habits. In fact as I understand the history he gave the psychologist she lost the family home to debt arising out of her gambling problems.
When he was working in mainland China he became involved with what was described as "an underground casino". He gambled heavily, he lost a lot of money and as I understand his account, from the evidence he gave last Thursday in the account he gave to the psychologist, he acquired a debt of 17,000 yuan, that is the Chinese national currency. He went back to pay back that money at the relevant place where that would occur, but instead of satisfying the debt he was presented with further IOUs indicating that he owed 60,000 yuan and was told that the only way he could assuage that debt would be to assist in the importation of border controlled drugs, particular methamphetamine.
He said at one stage he was confronted by at least two men, one of whom threatened him with a knife and there were threats of a physical character made against him as well as threats to seek retribution against his mother in Taiwan if he did not agree to assist in the relevant enterprise of importing drugs into Australia.
This was curious because, on his chronology of events, this proposal and these threats occurred many weeks after he had already decided to come to Australia and acquired his tourist visa. One wonders aloud how it was known that he was coming to Australia and how convenient it was that his presence in Australia on a purely innocent purpose coincided with the desire of people in China to have methamphetamine imported for him to "warehouse" in Australia as he ultimately did.
He had already, as I would have understand, booked his ticket to Australia at the time of this threat and he did say in his evidence before me that he was inculpated in this importation after the decision had been made to come to Australia.
He also gave evidence that he was told to make up a story if he was arrested about being a drug user and importing the drugs for his own use. As I pointed out earlier this he duly did and I have summarised the account that he gave to the Australian Federal Police.
There are a number of unlikely aspects to his version. Whilst I accept it is possible that he had a gambling debt and that he sought to settle I do not accept that at that time he discovered that they were demanding more than he actually owed. I bear in mind of course that he was not a Chinese citizen, but was a Taiwanese citizen whose only reason for being on mainland China, or within the "People's Republic of China", was to act as a carer for a person. I note his version of events that he had actually resigned that position before he came to Australia and I take it before he was threatened, although that aspect of his account was not clear.
I cannot see in the circumstances where he had no further connection to mainland China he would feel obligated to cooperate to the extent that he did, including after his arrival in Australia, tracking the movement of the consignment, beforehand providing the address that he had acquired in Sydney after he had left China and which could not have been known to those who recruited him at the time of his departure to Australia.
He gave evidence that when endeavoured to pay back the 17,000 yuan debt and was confronted with the fresh IOUs for the greatly increased sum he was given back 10,000 yuan of his own money. I find this difficult to understand. In the circumstances of the matter this might have provided him with further reason not to cooperate once he had safely left Chinese shores.
It seems to me that there is no rational basis, if he was not returning to China and there was no reason for him to do so as opposed to returning to Taiwan, to feel bound by any agreement with people with whom he had no other significant connection and was unlikely to meet again unless he chose to do so at some time in the future. Of course, they could always come to Australia to find him. But one might have thought that that might have been an expensive and somewhat futile exercise, particularly given that when he left China they obviously would not have had an address for him in Australia unless he provided it.
To my view he, to all intents and purposes, was untraceable unless he provided relevant details to those who recruited him in China.
He also said that he was concerned with threats made against his mother's safety. I find it difficult to accept that even if threats were made he could take them seriously. His mother lived in Taiwan. There was ample opportunity for him to advise Taiwanese officials or have his mother advise Taiwanese officials of the threat and for steps taken for her protection. One does not have to be an expert on international relationships to understand that two very different political and law enforcement regimes exist within the two 'states'. That is Taiwan and the People's Republic of China. Threats from people living in the People's Republic of China might seem to be hollow, bearing in mind I would expect, the restrictions upon travel from the People's Republic of China by Chinese citizens to Taiwan.
Of course these threats could be carried out through intermediaries. But in my view the prisoner gave no evidence to suggest that the people who recruited him had any capacity to do this or really to give any effect to the threats. The other aspect of the matter is how they would know how to find his mother unless he supplied details of her whereabouts.
In any event turning back to the facts it is not to be forgotten that the prisoner was not a static recipient of the consignment containing the drugs where all the arrangements were made for him. He had made the relevant arrangements to receive the consignment at an address of his choosing under threats that he claimed had been made but which in a practical sense could not be immediately enforced against him.
Even if he was threatened in some way when he was initially recruited, bearing in mind on his version he was already coming to Australia, all he had to do in my view was to break contact with his handlers on his arrival here.
His account in his evidence in any event was at some material odds with the account he gave to the psychologist. I appreciate of course he may have previously instructed his legal representatives of the matters of which he gave evidence in this Court, but the first public occasion in which he gave an account appears in the psychologist's report and in that account he made no mention of a man threatening him with a knife, which to my mind is a material inconsistency. His explanation for its absence in the history he gave the psychologist was unacceptable.
I also bear in mind that the account he gave to the psychologist in general terms and the evidence in this sentencing proceeding was at odds with the account he gave when he was arrested. Although I accept that he gave an account when he was arrested, particularly in the recorded interview, to fit in with the story that had been fed to him by those who had employed him.
As I pointed out from the decision of Tiknius, claims of non-exculpatory duress are to be approached by courts with care and usually with considerable circumspection. In this case that is justified given the prisoner's failure to disclose relevant matters to this aspect of the case when he had the opportunity to do so when first arrested and really had nothing to lose. The fact that he had nothing lose is exemplified by the fact that he made relevant admissions against interests concerning his knowledge of the fact that methamphetamine had been imported and that he was in possession of the drugs, which I guess were self-evidently saved by the circumstances of his arrest.
To be fair, the version he gave in the record of interview of having two kilograms of methamphetamine for his own use was so preposterous as I said earlier that it reflects to some extent upon his naivety and the fact that he was reciting some sort of learnt version that he had been tutored upon by others.
I also point out, although it is not obviously decisive, that the prisoner was not a particularly impressive witness. Of course I have to make allowance for the fact that he was giving evidence with the aid of an interpreter and culturally he was at a considerable disadvantage giving evidence in this Court. I accept that he would not be used to giving evidence and certainly he was giving evidence in what could be best described as a foreign atmosphere and in very intimidating circumstances.
Ultimately, however, he had no satisfactory response to the anomalies in his account in this Court that were exposed in the cross-examination of him by the Crown prosecutor.
As I said earlier, I accept that he developed a gambling debt and that to satisfy that debt that contributed to his decision to involve himself in this matter. Even if he was initially reluctant he played a willing role facilitating the delivery.
I could not conclude beyond reasonable doubt that his primary purpose to come to Australia was to warehouse the drugs though. The gap between his plan to come to Australia by obtaining tourist visa, his ultimate departure from China speaks of a plan to come here that predates any recruitment of him. Although I accept that it is possible that the obtaining of the tourist visa was solely to facilitate the obtaining of the drugs here in Australia that were sent in the manner in which these drugs were sent.
He did say in his evidence that he was coming to Australia to find work. The Crown properly approached that matter with some cynicism given the character of his visa. But he would not be the first person to come from China or other places overseas armed only with a tourist visa whose real purpose was to endeavour to find some work in Australia. Of course his tourist visa was to expire in January. He may have considered staying beyond his tourist visa. It is to be borne in mind as is often pointed out in the media that far more illegal residents in Australia enter our country through the arrival lounges of airports than arrive in boats through South East Asia.
In relation to his role in respect of this matter I considered everything that has been put by the learned Crown. I have pointed out of course some of the aspects of the Crown's submissions were based upon the version the prisoner gave in his interview. It seems to me that the prisoner was a conduit for the drugs. I note in relation to this aspect of the matter that he supplied his own name and of course his own temporary residential address for the delivery of the consignment.
He was exposed clearly, as subsequent events demonstrated by his arrest. I conclude that he involved himself in the commission of this offence for some financial benefit. It could well have been for the settlement of a drug debt. But this is not an uncommon circumstance with people involved in the importation of drugs in the manner in which this prisoner as involved or involved as couriers. He may have received other financial benefit, but not significant financial benefit. I note in relation to that aspect of the matter that he did not have a great deal of cash in his possession. There is no evidence of enrichment. It would seem his disinterest in the consignment may reflect of course his knowledge of the presence of a methamphetamine but also the fact that his task ultimately was to warehouse the drugs until people who would distribute them would take them from him.
His counsel pointed out of course that his role was "crucial" in the particular sense in which it was performed and the Crown has put that submission to me as well. I could not conclude that the prisoner was the principal of this importation, amongst other reasons because of his self evidence exposure to detection. There is no evidence to support the proposition that his benefit was to be anything greater than modest.
He adopted the detail of his background set out in the psychological report. Briefly put he has a younger brother who is four years his junior. His parents were people of modest means, his father was a tradesperson, his mother a street vendor. His father died of cancer when he was eight years of age and the family suffered a number of difficulties, financial and otherwise, although he had a reasonably happy relationship with his mother. He also had a great deal of her struggle through lack of financial support. He claimed some unhappiness in his childhood in his relationships with his peers. His mother's gambling I have already referred to.
He left home at 15. He has mainly had unskilled employment. His education is limited. It would appear that he associated with people that were perhaps "antisocial", although not significantly so. The prisoner himself had no history according to the version he gave the psychologist of antisocial conduct or behaviour issues in school. He has generally been in employment and as I have pointed out he worked as a carer in the period leading up to his departure from China to come to Australia.
Because of his lack of qualifications he is at a considerable disadvantage in his native country claiming "no bargaining power in the job market". He has had several relationships over a period of time, one particular girlfriend being particularly demanding of his financial support. He has had no really significant injuries or ill-health. He had one head injury. There is no evidence of cognitive impairment, mental illness or intellectual disability.
I have already dealt with his occasion use of "drugs" and his gambling up until the time he came to China.
The psychological assessment of the prisoner reflected upon him being anxious and "depressed", be active to his current circumstances. There is no evidence of mental illness relevant to the offending. There is no history of mental health treatment such as may be available in Taiwan or mainland China. His depressive symptoms were said to be "within the normal range" and he suffered obvious general psychological distress from his current incarceration having never been in custody and awaiting the outcome of the sentencing proceedings.
There was a Depression Anxiety Stress Scale undertaken in the Chinese language. I have taken into account those conclusions. He had some psychological distress as a child, thoughts of self-harm and some obsessive compulsive disorder but none of that appears to be relevant to his offending or his current circumstances.
The formulation of the psychologist reflects upon the matters I have identified, the lack of financial security as a child, difficulties with employment that was rewarding and ultimately the problematic gambling behaviour which contributed to his offending.
The prisoner expressed remorse in his evidence in this Court and to the psychologist which I note. He does not have any "antisocial" attitudes on the testing of the psychologists such as lack of empathy, significant impulsivity or insensitivity to punishment. He lacks criminal history as I have already pointed out. It was suggested that he would have some difficulties in custody with his lack of English.
He would benefit whilst in custody undertaking courses in relation to English and he may need a Mandarin speaking counsellor psychologist should his psychological state deteriorate in custody. He will suffer obvious isolation. His mother no doubt would have difficulty travelling to Australia, at least frequently, to support him. He would not have any other particular support in Australia. He is motivated to occupy himself in custody, but obviously will suffer those "hardships" that inevitably follow upon coming from a foreign country to commit a serious crime in our country.
None of those aspects of the matter, whilst I take them into account, amount to exceptional circumstances. It is the fact that people who commit this type of crime, that is involvement in the importation of drugs, will find themselves isolated from their homeland to complete their sentences to varying degrees. He certainly does not have a wife or children who are depending upon him.
By reference to the evidence of the prisoner I also note his observations about the effects of drugs upon other inmates whilst in custody in Australia, although I doubt that he was not aware of these matters from his experience in Taiwan and China to varying degrees. Particularly himself having used drugs, albeit occasionally.
But I took his evidence on this matter before me to represent a reflection upon the significance of the crime that he committed, bearing in mind the drugs imported from China such as crystal methylamphetamine or methamphetamine, heroin and the like, or from other countries, are damaging to our community as recent public debate has emphasised. That public debate seems to be one that seems way behind the reality of what courts have been experiencing in the 15 years I have been a Judge and for many years before that.
With regard to Pt 1B Commonwealth Crimes Act (1914) the learned Crown's written submissions took me through matters pertinent to consideration of that part which obviously I have taken into account. There is nothing controversial in reality about the detail of the Crown's written submissions and there are obvious self-evident truths. I am required to have regard to the maximum penalty as a yardstick and a basis for comparison between this case and a 'worst case' as it may be described citing the decision of Markarian. This aspect of the matter, admittedly in the context of sentencing under State law where an offence had a maximum penalty and a standard non-parole period, was recently the subject of discussion by Simpson J in her usual erudite way in the decision of R v Campbell [2014] NSWCCA 102, particularly at [27]-[29]. The matters that her Honour identified, albeit as I say in the context of State sentencing for an offence with a standard non-parole period, are pertinent to this aspect of the matter.
I have reflected upon the analysis of matters required to be considered, under s 16A(2)(a), "the nature and circumstances of the offence". The role of the prisoner as I said was to "warehouse", perhaps for a relatively short time, the drugs, in the knowledge that they were drugs of a certain quantity. Although I accept he did not know how much was there. He certainly had a belief that there was at least two kilograms there and he actively assisted the importation.
Of course he was not the importer. He did not organise the importation. He did not pay for the importation. He was not a courier who brought the drugs actually into the country but he had a "crucial" role to play and he was a link in a chain of distribution that would have ultimately but for the skill of the Customs Service and the skill of the Australian Federal Police led to the dissemination of these drugs into our community with the resultant damage.
His role was not "menial or limited", but he was very much at the lower level, perhaps at the lowest level of the relevant distribution network, although of course I do not have an organisation chart to assist me precisely identifying his position. This has been pointed out time and time again by courts of high authority, from Olbrich, the decision of the High Court of Australia, through to many decisions of the Court of Criminal Appeal.
I accept the submission of the Crown of course that the amount of drugs are relevant, in fact a highly relevant factor in determining the objective seriousness of the offence. It is interesting, however, to note and comment upon that aspect of the matter given the range of quantity that the provision to which the prisoner has entered the plea of guilty contemplates. This is demonstrated in the comparative cases cited by the Crown which I have taken into account as well as the comparative cases cited by the accused in the schedule of cases in the written submissions.
The crime obviously must have been committed for financial gain although there is no evidence to prove beyond reasonable doubt that it was a gain more than modest.
I accept the Crown's written submission and oral submission concerning the role of general deterrence clearly is a significant matter to have regard to.
The Crown also made submissions about the guilty plea in accordance with s 16A(2)(g) the need for adequate punishment under (k) and, of course, the prisoner's character antecedents and background which I have sought to summarise from the available material.
I have already dealt with the issue of non-exculpatory duress as identified by the Crown.
By reference to s 16A(2) I take into account that there are no other offences required to be taken into account. Even though the Crown submitted that the prisoner's sole purpose was to be here for the reception of this consignment and that raises of course the possibility of further consignments to come I could not conclude that this offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character (s 16A(2)(c)).
Due to the skill of the AFP and the Customs officials as I have said there was no victim of this crime, there was no loss or damage, although of course there was great potential.
The prisoner has expressed contrition and has indicated he now recognises the harm that drugs do and I note that, I take that into account, but it is not significant contrition that is both timely and complete. I note the fact that I am required to take into account the deterrent effect that any sentence will have upon the prisoner and to ensure he is adequately punished I am also required to take into account his prospects of rehabilitation (s 16A(2)(n)).
I am required also to take into account the probable effect that any sentence will have upon his family (s 16A(2)(p)). His mother may be categorised as a dependent, but I do not conclude that she is solely dependent upon the prisoner. Ultimately of course the situation is not one that invites a finding of exceptional circumstances that would warrant any substantial mitigation and penalty.
The prisoner is the architect of his own misfortunate ultimately. Whatever initial persuasion was placed upon him, his mother it would seem has been living independently of him even though he has provided some financial support over the years.
With regard to the oral and written submissions of the prisoner, as I said, the bulk of those submissions were directed at an issue I have resolved.
I have taken into account the various subjective circumstances that are summarised helpfully in the written submissions, the plea of guilty, the absence of criminal history. I accept that he has good prospects of rehabilitation. One of reasons the prisoner obviously was recruited was because he was a person of good character with no prior criminal convictions. There is no point walking through the terminals of Sydney Airport with convictions for drug supply overseas, or the like, that would only attract attention. It should be understood that, as is often pointed out sometimes in the consideration of sentencing for offences of this type, good character is of lesser value, particularly in the circumstances where people are recruited or agree to perform these crimes because they are of good character and would hope to escape detection by reason of the fact that they have no prior criminal convictions. That is why those people are used. But I accept ultimately that his absence of criminal history, his past work history, the largely pro social life that he has, no conclusive evidence of his involvement in a criminal subculture other than his connection with the people in China that recruited him, reflect a risk of further offending.
His use to other cartels or organisations is no longer viable given this conviction and the inevitable term of imprisonment.
I note the circumstances in which he must serve his custodial sentence, I bear that in mind and the difficulties he will have with his lack of English. His English will be much improved I expect by the time he finishes his non-parole period but these are matters he brought upon himself.
There was suggested in passing without much conviction, if I may use that term without seeking to make a joke of it, that there was an element of extra curial punishment at work here. I note the prisoner was attended by people purporting to be representatives of the Taiwanese government. The prisoner has been told that he may be subject to sanction when he returns to Taiwan. I have no evidence about this of any worth. I do not mean that critically of the way the case is presented, but the truth is I have no details of what further punishment or penalty will await him or what further prosecution may be launched against him on his return to Taiwan. It may be that the State of Taiwan seek to exercise some extra territorial jurisdiction in relation to such offending. In the absence of any coherent or cogent evidence all I can do other than acknowledge the possibility that he may be subject to sanction on his return to Taiwan, but for what I cannot identify. I have not been given any assistance whatsoever as to Taiwanese law or the probabilities or otherwise of such an event occurring. If such event occurs. Whether it has any connection with this matter or other matters I do not know and I believe ultimately that that was conceded in the way the case was conducted.
I have had regard to the comparative cases. Of course, I appreciate as the Court of Criminal Appeal recently said in the decision of RCW (2) "A judge sentencing at first instance should not become fixated on any particular so called "comparative case." I do not propose to recite all the decisions at first instance and on appeal that have been referred to by both the Crown and defence but I have read both the summaries and the judgments that were helpfully provided, particularly, the judgment provided in full by the Crown.
I have had particular regard to DPP v De La Rosa [2010] NSWCCA 194 in the judgment of the then Chief Judge at Common Law McClelland J and particularly [193] - [224]. His Honour sought after an exhaustive summary of sentencing of offenders for importation of border controlled drugs, particularly cocaine as was the case in De La Rosa, to categorise different levels of culpability in the manner that is set out, for example, in the table at [224]. It is not for me in my humble position to "criticise" his Honour. I do not. But it might fairly be said that his categories might not be seen to be exhaustive. There appear many overlaps between some of the categories that he identifies, the role of people and the consideration of the quantities of the drugs involved.
I appreciate this prisoner is not a "courier", but in terms of his position within the distribution structure I see his position as "analogous to that of a courier". In terms of such assistance comparative sentences may provide, bearing in mind variations in discount for pleas of guilty, cooperation and the like, it seemed to me that the purported "fourth category" which his Honour refers to at [214] - [215] is more similar to the situation here than other categories he identifies. But as I say, his categorisation cannot, in the context of my experience of dealing with a range of importers over the years, reflect all relevant computations of offending.
I have been provided with some statistics by the defence which have their limitations that are the subject of discussion by Chief Justice Spigelman in the decision of Butterfield in 1998 but I take those statistical figures from a relatively small sample surprising of 24 cases to show a range of penalty bearing in mind the absence of key information as to the discount for the plea of guilty, the quantity of the drugs, the role of the prisoner and the like.
As the Crown correctly pointed out in its submissions I am required under Pt 1B to impose a sentence of imprisonment, no other penalty is appropriate. I have determined a sentence of imprisonment that will require the fixing of a single non-parole period in assessing the non-parole period. I have had regard to the decision of the High Court, particularly, of Hili v The Queen and Jones v The Queen [2010] HCA 45 and the relevant principles to the assessment of fixing the non-parole period or minimum period. I am required to backdate the sentence to the date that the prisoner came into custody as a matter of fairness to him.
Thus, having taken all relevant matters into account, if you could stand up please, Mr Kuo, in respect of the offence to which you ultimately pleaded guilty you are convicted.
You are sentenced to a term of imprisonment of seven years. That sentence will commence on 12 November 2013 and will expire on 11 November 2020. In respect of that sentence, I fix a non-parole period of four years to date from 12 November 2013 to expire on 11 November 2017 on which date, subject to s 19AL Crimes Act 1914, you will be released to parole should that decision meet the favour of the Parole Authority. When you are released to parole you almost certainly will be taken into Commonwealth custody and I would expect be deported from Australia back to your country of origin, that is, Taiwan. It will be a matter for the Parole Authority, in consultation with the Commonwealth, as to whether you should be released to parole at the expiry of the non-parole period, it may not be an automatic release. You can take a seat, thank you.
HIS HONOUR: Mr Crown, are there any technical matters from you?
WHITEMAN: No, I don't think there is, your Honour.
HIS HONOUR: Any matters from you, sir?
SAUNDERS: No, your Honour.
HIS HONOUR: Thank you. Do you understand the sentence that has been imposed?
OFFENDER: Yes, your Honour.
HIS HONOUR: Yes, thank you, you are excused. Thank you, Mr Interpreter, very much for your assistance. Thank you, Mr Crown, and will you pass on my thanks to the learned counsel and again, Mr Saunders, the attention of learned counsel for the assistance you gave and thank you to the court staff.
ADJOURNED
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Decision last updated: 21 December 2015