R v Lai; R v Wu

Judgment

1. Two Taiwanese nationals, Po Wu, aged 24, and Wei Han Lai, aged 31, appear for sentence in relation to the importation of 200 kilograms of methamphetamine, (160 kilograms pure), with a street value between $30 million and $80 million. Both have pleaded guilty to a count under s 307.5(1) of the Criminal Code (Cth), of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, which carries a maximum penalty of life imprisonment.
2. Both have been in custody since 9 May 2018 and it is common ground that a term of full time imprisonment is required and should commence on that date.
3. The methamphetamine was contained in 200, one kilogram packets secreted into the base of two metal lathes, which were reported in a consignment on behalf of a company known as Anyink International Home Appliances Pty Ltd.
4. The methamphetamine was intercepted and wholly substituted with an inert substance, which leads to the offender's plea to an offence of attempt to import the commercial quantity.
5. A co-offender Mr Ngan has pleaded guilty to two offences arising out of the importation and is to be dealt with in due course. Ngan was the sole director of the company during the period of the subject importations as well as the previous importations. He rented the warehouse to which the lathes were delivered, liaised with the freight forwarders and his contact details were recorded on the importation dockets. Once in the warehouse he unwrapped some of the drug packets after they had been extracted from the lathes, which exposed the white crystalline substance. Together with Wu, Ngan weighed 33 of the 200 drug packets which he then kept.

Facts in relation to Wu

1. Wu liaised with an overseas controller to facilitate the possession of the drugs in Australia. To this end he rented a property in Strathfield for the purpose of storing the drugs after they were extracted and unpacked. Lai's role included cutting into the base of the metal lathes for the purpose of accessing the drugs which had been secreted inside them.
2. On the morning of 9 May 2018 Wu transported some of the drug packets to a property in Strathfield while Lai cut into the second metal lathe. Later that afternoon Wu and Lai transported the remainder of the drug packets towards the property in Strathfield, before they were arrested.
3. Wu had travelled to Australia on two occasions since 2017, having first entered on a working holiday visa in March 2017, but as his Counsel points out, there is nothing illegal or significant about those previous visits. Lai had not previously visited Australia and he arrived in Australia on a working holiday visa.
4. The agreed facts set out the considerable detail of the importation of the consignment. The Crown submissions helpfully summarised the involvement of each of the two offenders. In relation to Wu, he came to Australia on 29 January 2018. The drug consignment arrived on 20 April 2018 and on that day he signed a six month lease at the Riverwood address, which is where he and Lai resided.
5. On 28 April 2019 Wu leased a Strathfield address, which was intended to be used as a safe house to store the unpacked drugs from the consignment. He communicated directly with the overseas controller using EncroChat in relation to the consignment.
6. On 4 May he received $20,000 from an unknown person through the use of a token in the form of a serial number from a $50 note, to cover the expenses for himself and Lai in connection with the consignment.
7. On 7 May he bought and supplied the suitcases to carry the drugs once they were extracted from the lathes.
8. On 7 and 8 May, Wu worked with Ngan to unpack the lathes within which the drugs were secreted and the dry run consignment.
9. On 7 May Wu went with Lai to Bunnings at Kingsgrove and purchased a fan-cooled arc, two welding electrodes and cutting fluid. On the same day Wu went with Ngan to Kingsgrove Bunnings and bought two crowbars. Wu also bought electronic scales and clip seal bags to weigh and repack the consignment.
10. Wu was entrusted by the overseas controller to represent the syndicate in their dealings with Ngan, and who Wu was reminded, is an outside person.
11. On 9 May Wu prepared the suitcases with the intention of repacking the drugs from the consignment in them to move them to the Strathfield location. The substitute packages from the base of the lathes were unloaded and Wu transferred two large suitcases containing these packages from the warehouse to the safe house at Strathfield before returning to the warehouse with the electronic scales.
12. Wu and Ngan weighed 33 of the clear packages that Ngan had previously unwrapped and three packets found to be under a kilogram were replaced by Wu on the instructions of the overseas controller. Ngan kept the 33 weighed packages. Wu had been reminded again in relation to Ngan, that "he's an outside person." Wu and Lai transported the remainder of the substituted packages in suitcases towards the safe house at Strathfield before they were arrested.
13. Wu was found to be in possession of encrypted EncroChat phones. Wu provided the password which enabled the messages to be read prior to the burn time being reached, and he was also in possession of $8,935 which will be the subject of a consent confiscation order.
14. Wu lied in his record of conversation to the police and said "I just carried the bag, I didn't know the contents and I just carried the bag for my friend."

Facts in relation to Lai

1. Lai arrived in Sydney on 22 April and lived with Wu at the Riverside address. On 7 May he went with Wu to Bunnings at Kingsgrove, where Wu purchased the fan cooled arc, two welding electrodes and cutting fluid. Lai was found to be in possession of an encrypted EncroChat phone, there is evidence that he used the phone and that he was also communicating directly with the overseas controller.
2. On 9 May he arrived at the warehouse with Wu and immediately got to work utilising various tools to access the base of the lathe from the drug consignment.
3. Lai was wearing gloves and he assisted Wu in removing the concealed packages from the cavity of the first lathe that he had cut into, and minutes later commenced cutting into the second lathe. Lai remained in the warehouse and continued to work on accessing and unpacking the second lathe, while Wu transported the first two suitcases to the safe house in Strathfield.
4. Lai was present when Ngan removed the clear bags containing the substituted substance from the Chinese tea packets. Lai saw the clear bags with the white substance exposed and handled one of them, with assistance from Wu. Lai accessed the cavity of the second lathe and removed the concealed packages and put them in the prepared suitcases. He was present at the warehouse when Ngan and Lai weighed the substituted drugs with the electronic scales and he repacked the substituted drug packets neatly in the suitcases with Wu. He was present when Ngan wiped them down with a wet cloth. Lai and Wu then transported the remainder of the substituted packages in suitcases towards the safe house in Strathfield before his arrest.
5. He participated in a record of interview and he said that he had lost 1,000,000 Yuan, or about $44,000 Australian at a Casino in the middle of Taiwan owned by a man named George. He said George refused to let him repay the money in instalments and introduced him instead to David, who arranged this job for him. He was taken to a factory in Taiwan with his eyes covered and taught how to cut into a steel box with an angle grinder. They told when the time came they would help him get a visa and give him a phone when he arrived in Sydney.
6. When he arrived in Sydney he stayed one night in a hotel George paid for and then went to a rental unit. He said George told him he had to open the boxes at the warehouse and that would be all. He was told he should go with the person he was arrested with, namely Wu, to the factory, and open up the steel box, and then he could leave Australia and go back to Taiwan. He said he did not look at what was in the box, he just opened the box and the others did the rest. He said he did not know what was in the suitcase and he said he was given a phone when he arrived in Sydney and he used that phone to contact George and David.
7. As I mentioned briefly, the 200 one kilogram packages which were seized by AFP crime scene officers, were of a purity of about 80%, with a wholesale value between $15 million and $22 million, although more likely to be closer to $22 million.
8. The Crown case contains a number of photographs showing a lathe and the way in which the packages were inserted into the lathe.

Subjective Material on Sentence - Wu

1. The evidence provided by Ms Carroll of counsel for Mr Wu, comprised a report of a psychologist, Mr Borkowski. The history contained in that report was not adopted by the offender in evidence, or otherwise tested or corroborated and is treated with the appropriate caution outlined in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 396.
2. As far as subjective factors are concerned, it seems uncontroversial that he is a young man from Taiwan. He is a single man with no children. There is nothing remarkable about his reported upbringing in Taiwan. It is said that he completed compulsory military service for some months. He acknowledged that his living expenses in Australia were paid for by the person who was coordinating the importation. He has been undertaking educational courses to learn English and numeracy while in custody.
3. There was no relevant history of mental health issues, substance abuse or gambling difficulties and he acknowledged being offered a million Taiwanese Dollars or approximately AUD$50,000 for his involvement in this episode.
4. A diagnosis of major depressive disorder was proffered by the psychologist but it is not suggested that there was any causative link between any such disorder and his offending.
5. Mr Wu also acknowledged to the psychologist that he was sorry to the people of Australia and expressed remorse for his actions, and those expressions of remorse and regret are understandable and acceptable in these circumstances.

Subjective Material on Sentence - Lai

1. The evidence for Mr Lai, as tendered by Mr Scragg of counsel, comprises a report of Anita Duffy, psychologist, together with a letter from the offender and letters from his family members and girlfriend. The untested history in the psychologist's report is subject to the same qualification and caution to which I have already referred. It is uncontroversial that he is also a native of Taipei, he clearly has close support from his family and his brother and sister who were present for the previous hearing of the matter some months ago, and they have been a source of support to him whilst he has been in custody.
2. There is nothing remarkable about his conventional upbringing in Taiwan. According to the history he also undertook compulsory military service and seems to have been in regular employment. He reports a gambling habit which led to him allegedly having a million dollar debt, which is the version he had provided in the record of interview immediately after his arrest.
3. He acknowledged that he considered George's offer to become involved in the trip to Australia, and he suspected it was illegal. He says that he was fearful of repercussions on his family if he did not agree.
4. Notwithstanding that the version was given to the psychologist in relatively consistent terms to that proffered to the Police shortly after his arrest, I am not satisfied in the absence of it being tested or adopted, that it has been established on the balance of probabilities that there was some non-exculpatory duress operating on Mr Lai at the time of his offending. Further, Mr Lai said in his letter to the Court, "every day I reflect in my mind why I so carelessly and easily agreed to do this matter for them, just because they threatened to bring troubles to my family members." That is also a significant indication from the mouth of the offender that he was not operating under duress.
5. The psychologist diagnosed a gambling disorder and that, together with anti-social people in the underground casino, were major contributory factors to his offending.
6. I accept his expressions of remorse and regret contained in his letter to the Court and his apology to Australia and the Australian citizens for his criminal activity.Mr Lai has also expressed remorse and regret to his family members, who have written to the Court offering their strong support for him, and their disbelief at his involvement in such serious criminal activity.
7. The Crown's written submissions, which highlight the customary matters to be considered in imposing sentence according to Pt 1B of the Crimes Act 1914 (Cth), assert that Wu played a significant role which was indicative of a position of significant trust and responsibility within the importing syndicate, over an extended period of time. It is clear and common ground that Lai performed an essential but more confined role in the attempted possession of the methamphetamine.

Consideration

1. Although, as the High Court said in Wong v The Queen; Leung v The Queen (2001) 207 CLR 854, the weight of the drug is not a paramount matter, it is a matter of some significance and here the amount of the imported drug attempted to be possessed is over 214 times the threshold for a commercial quantity, of a very high purity and a very high street and wholesale value.
2. The objective seriousness is heightened when offending is for financial reward and here there is evidence of financial reward, either in the form of a direct payment or forgiveness of a debt, if one were to accept the assertions about George.
3. A fundamental consideration of course is general deterrence, so sentences must deter others from engaging in illicit drug activities. In line with Xiao v R [2018] NSWCCA 2, it is common ground that a 25% discount on the terms of imprisonment should be allowed, due to the early guilty pleas.
4. I must take account, as I do, the need for adequate punishment to be reflected in the substantial period of imprisonment, and I take account of the evidence of good character on the part of both offenders, and their lack of prior convictions. I take into account the fact that their time in custody will be more onerous than for those without language and cultural difficulties or family isolation issues, but I do not take into account the prospect that each of them will be deported at the conclusion of any non-parole period. The weight of good character is, as pointed out by the Crown, tempered by the well-established principle that the absence of prior convictions is generally of less weight as a mitigating factor, because frequently people recruited to engage in these activities are chosen because they have no prior convictions and can travel without restriction.
5. In further support of the Crown's submission that non-exculpatory duress has not been established, I note that none of the referees have asserted in their letter any knowledge of gambling problems or deals done with a man named George.
6. There is no evidence of particular hardship to the offenders' families as a result of any sentence. I take into account considerations of parity, bearing in mind the different roles played by each offender, to which I have referred.
7. Each party has provided a reference to a significant number of allegedly comparable cases or cases which may be used as yardsticks, to illustrate the range of sentences available, bearing in mind the cautions expressed by the High Court in Hili v R; Jones v R (2010) 242 CLR 520 as to the use that may be made of those cases.
8. Cases to which the Crown referred were Yu v R [2016] NSWCCA 73, involving the importation of 10.6 kilograms of pure methamphetamine; Chan v R; Lo; R Nguyen v R [2010] NSWCCA 153 involving the importation of 10 kilograms of methamphetamine; R v Riddell (2009) 194 Crim R 524 involving the importation of 11.8 kilograms of cocaine; and R v Pham; R v Tran; R v Dang; Ex parte Director of Public Prosecutions (Cth) [2017] QCA, involving the importation of 33 kilograms of heroin, together with Cheun v R [2009] NSWCCA 116, which involved the importation of 257,000 tablets of MDMA (73 kilograms). I have considered the objective and subjective circumstances behind the sentences imposed in each of the above matters.
9. Ms Carroll in her submissions acknowledges that Wu was not initially truthful with Police about his involvement, but he ultimately made more fulsome admissions to the psychologist of having been involved for financial gain. She acknowledges that this is not a case involving a specific discount for assistance but asks me to take account, as I do, of the fact that he co-operated with law enforcement agencies in providing them with the password to his phone which allowed them to download his phone before the burn time was reached.
10. A number of cases mentioned by Ms Carroll in her submissions were divided into cases involving the importation of greater than 40 kilograms of methamphetamines being Yuan [2015] NSWCCA 198, Nguyen [2012] VSCA 119; and Nguyen (2010) 205 A Crim R 106, Pham; Tang [2012] VSCA 101, Franze [2013] VSC 421, Handlen [2015] QCA 292, Lim; Tee [2018] NSWSC 44 and Kuo [2018] NSWCCA 270. I have also read and had regard to all the circumstances behind the sentences imposed there, as well as the cases involving importations of less than 40 kilograms which have been referred to by Ms Carroll in her submissions being Anderson [2008] NSWDC 30, Tyler [2007] NSWCCA 247, Chan [2001] NSWCCA 247 and Dao [2011] NSWCCA 183.
11. Ms Carroll candidly conceded that the term of imprisonment which may be imposed upon her client was in excess of the range contemplated by the cases to which the Crown had made reference in written submissions.
12. Mr Scragg's written submissions for Lai note that his role was principally concerning events on 9 May, although as I have noted it was on 7 May that he went to Bunnings with Wu when purchases of the equipment were made to enable access to the lathes. I accept that he played no part, on the evidence, in arranging or participating in the importation.
13. Mr Scragg pointed to a number of alleged comparators, some of which have already been mentioned. The cases to which he particularly drew attention were Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270, Teng v R; Lam v R; Tan v R; Wong v R [2009] VR 706, and Lau v R [2014] NSWCCA 179, R v Franze [2013] VSC 421, Ibrahim v R [2016] NSWCCA 6 and Wang v R [2010] NSWCCA 319.
14. As Mr Scragg said, the Court noted in Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270 at [118] that characterisation of a position in a hierarchy is often of less assistance than focusing on what the offender actually did: "Because drug syndicates do not operate transparently, the 'rank' of a drug offender within the criminal organisation may be more a matter of speculation than a process of rational drawing of inferences … Such criminal syndicates are by their nature secretive and where people stand in such a hierarch is necessarily opaque"
15. Mr Scragg enthusiastically embraced the range of cases attached to the Crown's submissions and asserted that his client was much less morally culpable than any of the offenders in the cases to which he had referred in his submissions. Although it was asserted that his client was only reckless, he conceded that, at least by the stage of him dismantling the lathes, he became aware that drugs were involved.
16. Mr Scragg initially put an ultimate submission that after the 25% discount to which reference has been made, a non-parole period in the range of five to seven years should be imposed. However at a later stage in his submissions, he withdrew this and made no alternative submission, other than to assert that the non-parole period should be in the order of 60% of the head sentence.
17. I have taken into account the steps taken by the offenders towards rehabilitation, which should be considered on sentence and there is no adverse material as to their time in custody, which has been more than one year and three months. The material that I have seen suggests that their prospects of rehabilitation are good, but that does not significantly diminish the importance and general and specific deterrence.
18. I take into account the general principles of sentencing for Commonwealth offences as summarised by the Crown in an annexure to the written submissions.
19. The orders that I make are:

Wu 1. The offender is convicted of the offence. 2. I impose a sentence of imprisonment of 15 years commencing 9 May 2018. 3. I impose a non-parole period of ten years expiring 8 May 2028. 4. I make forfeiture orders pursuant to the short minutes of order, namely $8,935 cash.

Lai 1. The offender is convicted of the offence. 2. I impose a sentence of 12 years imprisonment commencing 9 May 2018 3. I impose a non-parole period of eight years, expiring 8 May 2026.

1. Could I just ask the interpreters to ensure that the gentlemen understand the sentence. Note - These extempore remarks were revised without access to the court file

Amendments 05 June 2020 - Minor grammatical amendments: remove comma at [9]; "w" replacing "W" at [26]; "Mr Borkowski" replacing "a Mr Borkowski"; insert comma at [33], [39], [43]. 05 June 2020 - Correction to Case title; "Po" amended to "Wu" 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: 05 June 2020