The prisoner appears today for sentence, many months after it should have occurred, in respect of a charge to which he pleaded guilty earlier this year jointly with Qingtao Liu and others possessing tobacco products knowing that the goods were imported with the intent to defraud the revenue. This charge was one for which he was committed for trial. I will come back to the issue of discounts for the utilitarian benefit for the plea of guilty and for facilitating the course of justice and his cooperation later in my reasons.
This is an offence according to the material provided to me by the Crown contrary to s 233BAD(2) Customs Act 1900 in conjunction with s 11.2A Criminal Code (Cth). It has a maximum penalty of ten years imprisonment and or pecuniary penalty of $25,200. There are no other charges to be dealt with.
The prisoner, as I understand it, entered the plea of guilty on 6 February 2019, having been committed for trial in April 2018. He has spent one night in pre-sentence custody.
The "co-accused" of the prisoner, Qingtao Liu, was tried before me earlier this year in a trial that concluded with a verdict of guilty in relation to the same charges to which this prisoner has pleaded guilty. Mr Liu gave evidence in his trial and Mr Li, the prisoner here, gave evidence for the prosecution in that trial.
In my remarks on sentence of 20 June 2019 I set out in considerable detail the facts relating to Mr Liu many of which of course are common to this particular prisoner. In fact, as I said, the two men are jointly charged in relation to the same offence although clearly the roles of the two men are very different. I do not propose to reiterate all that I put before the Court in my remarks on sentence concerning the events of 8 May 2017 when this prisoner, Mr Liu and others were the subject of Australian Federal Police and or Border Force surveillance and subsequently were arrested.
However, to reiterate some essential matters that arise in relation to the case, the cigarettes that were later recovered by the investigators on the arrest of this prisoner and Mr Liu numbered 7,450,400 individual cigarettes. The importation of those cigarettes avoided duty in the sum of $4,595,747.60. In this sentencing proceeding I have a calculation of the GST that was avoided or potentially avoided which was not as I remember it available to me when I sentenced Mr Liu. Although I would have imagined it was a substantial sum, it turns out to be 10% of the sum total of import duty. That is, $459,574.00 and odd cents. The total evasion is $5,055,322.36.
The facts that have been provided in relation to this prisoner go over the circumstances of the arrest of this prisoner and I do not propose to reiterate them. They are well set out in the remarks on sentence I made in relation to Mr Liu. The difference between this prisoner and Mr Liu in terms of events subsequent to the arrest, are that Mr Li was granted bail; he only spent one day in custody.
Mr Liu was in fact remanded in custody and remained in custody until his trial. Mr Liu apparently was in Australia illegally having overstayed a visa.
This prisoner is legally in Australia. He is on a visa relating to, as I understand it, either his skills or his education. The visa allows him to work and receive income and there are no specified conditions in relation to his work. When arrested on 8 May 2017 the prisoner told police or investigators quite truthfully that he was studying a course at the University of Technology in integrated product design, and I will come back to the details of that.
In addition to the facts of the arrest and the facts and circumstances surrounding the particular importation of cigarettes to evade the payment of duty, which I have already set out, there are quite a number of additional pieces of information or facts in relation to the consequences of the investigation information obtained by other sources and information obtained from an examination of the mobile phone of the prisoner and examination of photographs that he took and various private messages sent through the WeChat App. This appears to me to be very similar to WhatsApp but apparently from what I see in many cases involving reference to WeChat an application is primarily by Chinese speaking people.
This evidence in the Statement of Facts concerns the prisoner's involvement in other consignments which involved the importation of tobacco products to avoid duty. I was well aware of this aspect of the matter because it was the case, firstly in the trial of Mr Liu, that a video recording of CCTV camera operation was played at the trial involving an exercise one would expect to be identical to what was anticipated to occur on 8 May 2017 when the prisoner and Mr Liu were arrested. In May 2016 however the relevant unloading of shipments of cigarettes, the unpacking of them, the repacking of them in containers to enable them to be sold around Sydney and elsewhere was conducted within the warehouse outside which this prisoner and Mr Liu were arrested. The prisoner was shown in that video recording at least for part of the time that that particular process was undertaken and it was part of the Crown case against Mr Liu that he had been involved in other shipments of cigarettes. This matter being particularly relevant to establishing the fact that, as was pleaded by the Crown, he knew that the importation of the cigarettes was to avoid revenue.
Amongst the material referred to in the additional facts relating to this prisoner include photographs found on his phone, evidence of the use of his credit card on at least one occasion to pay for recycling of the cardboard containers, bearing in mind it is clear from the evidence at the trial that Mr Liu either directed or personally recycled much of the cardboard material in which the cigarettes were imported over a period of time.
In the context of what is agreed by the Crown and the defence in their submissions to me to be the role of the prisoner in relation to Mr Liu it is clear that any payment that he made was not in the pursuit of his own criminal enterprise but a payment made at the request of, or the direction of, Mr Liu, albeit that the prisoner would have been recompensed for that.
Clearly, apart from unpacking cigarettes and repackaging them, noting the complaints the prisoner made in WeChat messages, he was also involved in the disposal of rubbish, assisting in the recycling the packaging to which I have referred. Of course the precise number of shipments he was involved in is not known. But certainly there is strong circumstantial evidence of quite a number of shipments over a period of time between May 2016 and May 2017, particularly with increased intensity in the early part of 2017. But the precise actions of the prisoner would be a matter of speculation. It is also correct to point out that his involvement in these matters was at the direction of Liu.
I have noted in many of the WeChat messages a number of boastful claims. To my mind, however, they are in the context of both his naivety and what he has attested to in his affidavit that he was boasting about matters that were not entirely true. It is to be remembered in the context of the consideration of the evidence that he gave evidence at the trial that he was acting at the direction of Mr Liu, which was the Crown's case against Mr Liu, that he was not only acting on the direction of Mr Liu but he was directly under the influence of that person in a personal manner.
The psychological report that has been tendered on behalf of the prisoner reflects upon some of his conduct as being very much a reflection of this naivety. What emerges as what I would call 'fact' rather than speculation from the representations, is that the prisoner claimed that he could make $300 a day working in the unpacking of cigarettes. The precise number of days he worked we do not know. This money of course is to be understood as being paid to him in the context of him also doing work for Mr Liu over a number of years in his legitimate removalist business for which he no doubt would be renumerated quite legally.
Occasionally in his representations in the WeChat messages he talks of "we" doing things. But this has to be seen in the context of his relationship with Liu. He admits to some sale of cigarettes but the scale of that is unknown and clearly in context, bearing in mind the masterminds, if I could call them that, or directors of this operation, were conducting the operation on a very significant scale, what personal opportunity for profit he made would have been limited.
As was evident in the trial the prisoner was not only assisting Liu in May 2016 as shown in the CCTV footage, but was also acting at his direction. Liu, in fact, on that particular occasion or those occasions over those two days took a very active role in the unloading, unpacking and repackaging of the cigarettes and clearly was giving direction in relation to that matter.
On the occasion of the arrest of Liu and this prisoner, Liu in fact was standing away from the unloading aspect of it, at least, presumably in the knowledge that those that he had employed, including two other men who apparently were never charged, knew what to do. By reference to the WeChat messages, I have taken into account what the prisoner has said about them and the true significance. I have got no reason to doubt his truthfulness, as much as the jury had no reason to doubt his truthfulness when he gave evidence on behalf of the prosecution helping to secure Mr Liu's conviction.
Of the representations in the WeChat messages, in the context of some submissions put by the Crown in its written submissions and accepted by the defence as to the relevance of the other activity, is a representation made by the prisoner that his belief was that the "punishment" if "caught" was "confiscation". Of course his messages reflected an appreciation on his part of the connection of Chinese organised crime to the importations. There is absolutely no reason to believe that this prisoner is in any way a part of an "organised crime network" or an active proponent of their goals beyond performing labouring duties at the instigation of Mr Liu. I was not able to conclude on the evidence relevant to Mr Liu that he himself was such a member, albeit that he played a very important role as acting at the direction of those responsible for the importation and distribution of the cigarettes, particularly the distribution of the cigarettes within Australia. There are a number of representations in messages cited in the Crown facts reflecting some ignorance by the prisoner of the persons within Australia directing Liu in his activities.
Of course I am only sentencing the prisoner for one offence. But this other activity is clearly relevant in the course of consideration of the appropriate sentence to be imposed on the prisoner. The Crown and the defence agree on this. His involvement is not an isolated aberration as the Crown has submitted. The Crown also submitted that the prisoner's role was that as of a worker or labourer in the process of unpacking hidden cigarettes and preparing them for introduction into the black market. The Crown accepted, as it must by reliance upon his evidence at the trial as a witness of truth, that the prisoner's role is not that of a principal. That is absolutely self‑evident and that his involvement was at the direction of Mr Liu.
The Crown submitted and I accept that clearly that financial gain was the "obvious motivation" for the offender's involvement but that having been said it is also to be observed, in the context I will deal with shortly, that the prisoner's involvement in the commission of this offence arose out a pre-existing relationship with Mr Liu which was entirely legitimate and had its origins in the circumstances of the prisoner's parents or at least the prisoner's father knew Mr Liu and had entrusted Mr Liu to provide assistance to his son who was a stranger to Australia when he came here first at the age of 18 to commence his studies. I will come back to the analysis of the prisoner's role in the context of the sentencing remarks I made in relation to Mr Liu and other matters shortly.
Part of the material in the Crown case, as usually is the situation, is a Sentence Assessment Report from the New South Wales Community Corrections. It is a short report and it tells me very little that I do not already know or I could not glean, if not from the evidence at trial, from the additional material tendered on behalf of the prisoner. The report reflects upon the "attitudes of the prisoner" and his "insight into the impact of offending". It is interesting to note that, as I understand it, the prisoner is a non-drinker, non‑smoker, nonuser of illegal substances. I am not quite sure what purpose is gained by pointing out that he can identify the potential "negative impact" tobacco can have on the community, when otherwise tobacco is a legal drug widely used within the community much to its detriment. The report notes the prisoner is ashamed of his offending and that permeates the material tendered on his behalf, and also concern for the impact of these proceedings upon his life.
He is assessed as being at "low risk" of re-offending, which I believe is self-evident from the overall facts of this case. The recommendation is that apart from supervision no other special conditions are required which I think is also self‑evident. He is also suitable to undertake community service work, and as I foreshadowed in my introductory remarks to the prisoner which I trust will be incorporated into my remarks on sentence, (but have not!) I propose that he be required to perform community service work.
In relation to the defence case; the defence case is not confined to the material that was tendered on the sentence proceedings which I will deal with shortly. The defence case includes the evidence the prisoner gave at the trial. Defence counsel has pointed out to the various parts of the evidence given by the prisoner in the trial about his association with Liu, his involvement in the offending and other matters which clearly were accepted by the jury.
The prisoner in my view was a witness of truth. He was subject to significant attack by learned counsel for the co-accused. One of the matters upon which he was attacked was the fact that he purchased a property to live in in Australia, paying a significant deposit. I understood the attack upon him by learned counsel for Mr Liu was a suggestion that in fact the deposit was the product of his illegal activities. In my view the prisoner's evidence was truthful. There is evidence available to me that the prisoner's parents are, if not wealthy, they are well off by Chinese standards. The prisoner gave evidence of the circumstances of that purchase being connected to support from his family. There is no reason whatsoever to believe that his ownership of the property is in any way connected with his illegal activities. In fact he made representations about receiving money which would assist him with his living expenses and the like.
Apart from the affidavit from the prisoner there is a report from Patrick Sheehan, a forensic psychologist, a letter from Dr Charles Chan a consultant psychiatrist, two mental health plans that have been developed for the prisoner over a period of time, and evidence of appointments the prisoner has made for consultation with a psychologist, prescriptions for medication, for the treatment of anxiety, for depressive symptoms. Further, there is evidence relating to university courses undertaken by the prisoner between 2016 and 2019, character references from the prisoner's mother and wife, as well as two adult men, one gentleman born in England in 1958, a man of substance, and a younger man as I understand it who has known him over the last three years. There is evidence relating to the prisoner's father's death in early June 2019 from prostate cancer and the existence of that condition. It is a very sad thing, although sympathy does not come into any sentencing exercise, that by reason of the extensive delay in this matter, the prisoner was unable to go to China to be with his father before he died. If I had been asked about the matter having formed a view about the prisoner's truthfulness I would have been prepared, subject to any particular matter drawn to my attention by the prosecution, to allow him a variation in his bail application to permit him to do at least the simple task of saying goodbye to his father directly. Still this is one of the matters borne upon him by reason of the delay in this matter.
In his affidavit he indicates the circumstances in which he pleaded guilty and it seems clear to me in the context of him being a Chinese citizen for whom English is a second language and with clear ignorance of the Australian legal system, that he was not well served in advice and certainly had confusion of understanding as to what his courses were in entering a plea given the number of charges with which he was originally charged. There was uncertainty in his mind about the legal advice he received. I note part of the evidence before me shows a change of legal advice.
I am very satisfied having regard to admissions he made against his own interest at the time of his arrest that if the prisoner had fully understood the legal position he was in he would have pleaded guilty at an earlier time. Although, that matter is not to my mind relevant to the assessment of the utilitarian benefit of the plea. The subjective belief of a person is not usually a matter of any substance in the assessment of that issue.
The Crown in its written submissions and the facts themselves demonstrate to me that the prisoner has been contrite for his involvement in this matter from an early stage. Although his plea was at a later stage his explanation for that occurrence sheds light upon reasons for the delay that do not detract from the existence of that contrition. That contrition of course is evidenced by his willingness to cooperate with the authorities, to give evidence against Mr Liu, an older family friend as I understand it. These are matters that demonstrate substantial contrition on his part. I accept his evidence in his affidavit that if he had known that he could plead solely to the possession charge, believing rightly or wrongly that he was not guilty of another charge of importation, the plea of guilty would have been entered at a much earlier time. I must say in another case of importation of drugs recently I was drawn to the fact that I did not appreciate, not that it reflects upon this matter, that the definition now of importation can include the expression "dealing" with the subject of the importation. In fact I am sentencing somebody shortly for importing drugs that on the Crown case did not know the drugs were coming into the country and had no connection with the drugs until they were actually delivered to a house that he shared with other people and he was intercepted by Federal authorities opening up a box that contained the drugs within them.
In any event, this prisoner gave evidence at the trial and I accept that his father had asked Mr Liu to take care of him when he first came to Australia with his parents in 2012 in anticipation of coming to Australia the following year, and firstly undertaking an English language course, and then pursuing tertiary study. He gives evidence which I accept that the obtained a Diploma of Design and during that period of time worked for Mr Liu in his removal company doing legitimate work. The prisoner obviously worked for Mr Liu in a range of ways, as I said earlier, not just confined to his involvement in the unpacking and unloading of cigarettes imported to defeat the revenue. The prisoner's offending has to be seen in this context, not as a person recruited to commit crime by Liu as such. But recruited initially to perform perfectly legitimate work, albeit that the prisoner was aware of the illegality of the involvement in the unpacking and repackaging of cigarettes.
He was, he claims, significantly under the influence of Mr Liu in part because of the arrangement that had been entered into between his parents and Liu some years before. Since completing his diploma the prisoner has been studying for a Bachelor's degree in Design and Integrated Product Design and can complete his degree this year. The semester that he has already paid for will be completed in October 2019. For reasons I need not go into he has been informed if he does not complete this semester this year he may forfeit credits from past results. The prisoner is deeply concerned that he be able to complete his degree because he believes if he cannot complete his degree he will lose the benefit of what he has worked for in a constructive way in his studies.
It is to be remembered, although the prisoner is a national of China with legitimate reasons to be in Australia, there is no reason to believe whatsoever that he came to Australia to commit crime, or that his involvement in criminal activity was his sole raison d'etre for his presence in Australia.
The prisoner is a married man. He married his young wife in late 2017. She has provided a written reference in support of him speaking of his positive qualities. One of the matters relevant in this sentencing exercise reflecting more so on the adverse effect upon individuals of delay in matters as I have earlier noted, has been the progress of his father's prostate cancer and his death in June this year. I have already mentioned he was unable to visit his father because of his bail conditions. I accept that this very distressing for him and in conjunction with the uncertainty about the outcome of these proceedings, the delay in his sentencing in part occasioned by the progress of Liu's matters, and also noting the concern the prisoner had about giving evidence as a stranger to the Australian legal system, I accept the prisoner has been placed under significant stress.
The psychological report does not provide a great deal of original information. I am very mindful as the Crown reminds me of the circumspection one must approach out of court representations upon which opinions may be based where those representations have not been tested, but largely what the psychological report provides by way of history is material already known to me, either by using common-sense and by having regard to the evidence the prisoner has given in these proceedings and other matter.
The psychologist reflects upon obvious stresses to the prisoner, his inability to work, the hiatus in his studies, the concern about his father's condition and the like. I note as I have said earlier the prisoner has sought psychological counselling prior to seeing Mr Sheehan and mental health plans provided to the Court evidence arrangements made to assist in dealing with the symptoms of his anxiety for which he has received some medication.
He has what the psychologist describes as a "pro-social family background". The psychologist was of the view that since his arrest the prisoner may have an adjustment disorder given the symptoms reported. In that regard I note that Dr Chan being a qualified psychiatrist, diagnosed the prisoner, as suffering from an Adjustment Disorder with "depressed mood", noting his strong sense of self-blame and guilt in a range of ways. I appreciate these conditions are subsequent to his offending. There is no suggestion of any psychological or psychiatric condition contributing to his offending behaviour. The psychologist said in his current condition in custody through cultural and language reasons, and his general pro-social attitudes he would not only suffer some isolation in custody but there could be a real risk of deterioration of his presentation as assessed by both the psychologist and the psychiatrist.
The psychologist was of the view that the prisoner had no substantial indications of risk of re-offending such as substance abuse disorder, prior criminality, antisocial sentiments, anti-social peers, if one just ignores Mr Liu for the moment, and unstable domestic circumstances. I note in that regard attacks upon him by counsel for the prisoner were entirely unsuccessful in relation to his credit.
The psychiatrist had noted symptoms of significant insomnia and considerable loss of weight through reduced appetite over the period since his arrest. He is currently prescribed an antidepressant. I accept the prisoner is significantly impacted by the litigation, stress and worry about the outcome of the litigation, particularly criminal litigation is pretty well part of course but a person with this prisoner's background would find it significantly distressing nevertheless, but he also has had the weight of the family circumstances.
His parents when they were both alive, living in China, were well-to-do and law-abiding people. The mother has written a reference subsequent to her husband's death. She reflects upon their disturbance at their son's conduct and of particular disturbance, the fact that the person to whom they had entrusted some responsibility for the care of the prisoner had in fact led him astray. The mother states that he is a respectful son, and that he has great affection for his parents. He has expressed to her his considerable distress at a range of circumstances, particularly the loss of his father. The mother is in regular contact with him and states in her opinion as one might expect a mother to do, that he has learnt from his experience and regrets his conduct.
His wife in her reference speaks of his talent as a design student, his close relationship with his family, his respect for her and her continued support for him. She confirms, as he asserts in his affidavit, that he takes responsibility for his conduct and she expresses the opinion that the criminal conduct in which he was involved, admittedly over a period of time, was a "one‑off". She writes of the concern that he holds for his career and the impact upon him of these proceedings. The two friends of his to whom I have referred, spoke positively of his character and the impact upon him of both his father's death and the litigation, they reflect upon his usual good conduct and his wish to pursue his career on obtaining his degree. Mr Jones is an accountant, and I take to be a respectful person based upon his assertions in his reference, describes the prisoner as a "decent honest person" who was very remorseful for his conduct and angry with himself for becoming involved. Mr Heng, a friend of the prisoner who works for a bank reflects upon the fact that the prisoner acknowledged his wrongdoing to him, his regret for his conduct and reflects upon the effect upon the prisoner of his father's death.
Whilst it is correct to say by reference to, for example, s 16A(2) Crimes Act (Cth) 1914, that the offence with which I am concerned is part of a course of conduct, I accept in all the circumstances having regard to the evidence I have about the prisoner's personality and his family and cultural circumstances, that his conduct over the period of time he was involved was truly "uncharacteristic" in that it was inconsistent with his normal standards.
I also conclude, notwithstanding the boastful comments made by the prisoner in the course of private communications about his involvement in the importation of the cigarettes, that in understanding the prisoner's conduct the prisoner did not have a full appreciation of the significance of the illegal activity. This is stressed quite properly in the Crown's submissions by reference to authorities commenting upon the character or prosecutions of people for seeking to avoid the revenue. As I said earlier, ignorance of the law is no defence, but it is a matter that can be relevant to the assessment of a person's moral culpability.
If I could turn to the very helpful written submissions of the Crown and the oral submissions of the Crown as well as the helpful written submissions of counsel for the prisoner and some matters that arise out of those. I do not propose to recount the submissions as such but merely comment upon them. There is, to be frank, little dispute between the Crown and the defence. When counsel who very skilfully ran the trial in prosecution of Mr Liu was replaced in the middle of the plea a few weeks ago, the new representative of the Director of Public Prosecutions approached the possible disposition of this matter in a different way. But it was conceded by him in the context of what had previously been decided in relation to Mr Liu two very important matters. Firstly, that any sentence imposed upon this prisoner as a starting point would be less than that required to be imposed upon Mr Li. That is self-evidently so, and in fact the range of sentence in context was not the subject of substantial discussion.
The other matter agreed both in the written submissions of the Crown and in the oral submissions of counsel for the Crown in terms of what had been put by the defence, is that it was open to the Court to provide a discount for the utilitarian benefit for the plea of guilty in the context of a plea of guilty entered some weeks before the trial started, in circumstances where I hasten to say the trial had to be prepared because Mr Liu was pleading not guilty in any event, and of course a discount is open to be provided to the prisoner for his cooperation with the prosecuting authorities. A matter of course required to be considered pursuant to s 16A(2) of the 'Act.'
With regard to this issue of parity it is well and good for me to work my way through the Commonwealth sentencing provisions and specific matters that might arise out of the New South Wales sentencing procedure provisions as they are incorporated into Commonwealth Law, but in every sentencing exercise there will be other issues that are not directly addressed by the legislature whether it be under Commonwealth law or New South Wales law. Two such issues arise in this matter. Parity is one of them. Parity of sentencing is an important aspect of equality before the law. It has been sometimes expressed as a manifestation of the "Aristotelian concept of equality". It has been the subject of comment in a range of high authority, Green v R (2011) 244 CLR 462 particularly at [28]; Postiglone v R (1997) 189 CLR 295, particularly refer to the observations of Dawson and Gaudron JJ in that judgment at p 301; and of course before that where the expression "justifiable sense of grievance" emerged in the decision of Lowe v R (1984) 154 CLR 606.
A particular authority to be referred to in this context is a decision of the Court of Criminal Appeal of Campbell JA, Howie, Rothman JJ, that decision is Jimmy v R [2010] 77 NSWLR 540. In relation to the application of the "parity" principles of sentence, amongst other observations that have been made, is the importance of a Court avoiding an unjustifiable disparity, the requirement generally for the same judge to deal with co-offenders which has happened in this particular case, the desirability of Courts properly distinguishing offenders both by regard to the objective facts and their subjective circumstances.
In relation to Mr Liu it is to be noted that he is now 60 years of age. This prisoner is now 24 years of age. I have already made comment upon what the evidence establishes as to the circumstances in which this prisoner came within the thrall of Mr Liu. As was conceded in the submissions, and rightly so, the prisoner, as I said earlier, was under the direction of Mr Liu. It is quite clear that this prisoner was working, as the Crown has conceded in its written submissions, as a labourer at Mr Liu's direction and such remuneration or financial reward he received was not a percentage of the profit he gained from the criminal enterprise but a wage which to be brutally frank might be seen in context as relatively modest. This issue of parity was paraphrased by reference to "Aristotelian" principles by Rothman J in the decision of Jimmy where his Honour said, if I myself paraphrase it, that what parity of sentencing requires is 'alike to be treated alike, and the unalike to be treated unalike to the extent of their unalikeness' on reasonable and rational grounds. That will be done in this particular case. But as I said when one goes back to what obviously had to be a concession made by the Crown the final sentence to be imposed on this sentence would be substantially less than Mr Liu, putting aside the issue of their different roles and their different culpability, both legal and moral. There is the fact that Mr Liu could not claim the benefit of any discount upon the otherwise appropriate sentence for any reason whatsoever.
Coming back to s 16A(2), the Crown sets out at subpara (h) of para 6 of its submissions what the prisoner did and I need not reiterate that, that is self‑evidently so.
In relation to s 16A(2) I am aware of the fact that the Court is bound to give consideration to those matters. I accept the Crown submission that the maximum penalty for the offence is a yardstick and a basis for comparison of the case between that and the worst case. In that regard I might point out both the Crown and the defence took my attention to a range of what were so‑called comparative cases. Some of those cases were drawn to my attention in the sentencing of Mr Liu. But I was also drawn to an additional decision, particularly in the submissions of the current Crown Prosecutor of Saleh to which I have had regard. I will come back to those comparative cases shortly. It is important to note in relation to the consideration of the comparative cases what the High Court said about them in Hili; Jones v R [2010] HCA 45 particularly at [54]. I note in another context observations have been made by the Court of Criminal Appeal about the consideration of supposedly comparative cases. Two particular cases spring to mind, a decision of McClennan CJ at CL in Holland [2011] NSWCCA 65, at [3], and also the decision of Gow [2015] NSWCCA 208, I particularly refer to Basten JA and Hamill J at [35]-[52].
McClennan CJ at CL made the point that the categories of drug importers that he discussed in the decision of De La Rosa [2010] NSWCCA 194, particularly at [216]-[254], were not such that it was appropriate to fix a sentence that fitted within the categories that he identified in that judgment. He said in Holland that what one should do is approach supposed comparative cases on the basis that they can stand a "yard stick against which to examine a proposed sentence". In that regard I also note the observations of Garling J in Gow at [63].
The Crown in submissions, as it had done in Mr Liu's submissions, took me to the South Australian Full Court decision of Zhang [2017] SASCFC 5 and particularly at [32] - [34]. I need not repeat what is contained in those judgments. I accept what is put in those judgments. It is directly apposite to what I am concerned with here. The Crown is correct to submit that the accused was significantly involved in the offending on 8 May 2017 in the context of the facts as I earlier outlined them to be.
The Crown correctly said, as was said by the High Court in Olbrich (1999), that care must be taken to ensure that a shorthand description of the offender's role does not obscure the assessment of what the offender actually did. The Crown describes the prisoner as being a "worker or labourer" for unpacking and repackaging of cigarettes, preparing them for introduction into the black market as I have already identified and I have already quoted from the Crown written submissions about the accused's role by comparison to Mr Liu.
The Crown is correct to point out that the offence with which I am concerned is to be regarded as part of a course of conduct and the Crown is correct to point out the fact that the offending formed part of a course of conduct consisting of acts of the same or similar character may at least go to establishing the context of the offending, that is, that it was not isolated. It may also be relevant to assessing the offender's character, antecedents, contrition, prospects of rehabilitation and the need for specific deterrence.
In that last regard I have concluded, firstly, that whilst it does not reflect favourably upon his character, apart from his involvement with this matter and since his arrest, the prisoner has been a person of good character. He is genuinely contrite, I believe because of his achievements and education, the support of his family and his breaking with Mr Liu he has excellent prospects of rehabilitation and I do not believe that in this case there is special weight that has to be given to specific deterrence. Of course, as the Crown points out by reference to the 1981 decision of the High Court in De Simoni (1981) 147 CLR 383, the prisoner is to be sentenced for that with which he is charged, not for other offending. However, the other conduct as I said, can have clear relevance as it does in this case under s 16(2)(c) of the Commonwealth Crimes Act. This was a matter where the prisoner had financial gain but as I said, modest in the context of what others would have no doubt been able to obtain.
So far as the prisoner's guilty plea, that is a relevant factor and a mitigating factor pursuant to s 16A(2)(g) of the Act. As is the prisoner's contrition and remorse which I have accepted under subpara (f) of the subsection. The cooperation with law enforcement agencies is another relevant matter under s.16A(2)(h). Of course in every criminal exercise particularly in relation to offences of this type there is a need for particular attention to the weight to be given to general deterrence pursuant to s 16A(2)(J)(a). But, of course, in the context of considering general deterrence in the individual case one has to have regard to the individual's role in the commission of the offence in the context of the maximum penalty for that particular offending.
So far as specific deterrence is concerned, a matter relevant under 16A(2)(j) of the Act, I have already made comment about that. I also note his youth or comparative youth, particularly to Mr Liu being 36 years older than he and the fact that the prisoner has been subjected to conditions of bail with which he has complied. I note in the general context of considering his prospects of rehabilitation and the like, his full cooperation with the authorities, and his willingness to live up to the bargain that he struck with the prosecuting authorities. S.16A(2)(k) required attention to the need for adequate punishment by imposing a sentence that is of a severity appropriate in all the circumstances of the case.
Matters relating to the offender's character, antecedents and background I have already detailed. The Crown's submissions deal with a number of matters which I have taken into account as to the weight of out of court representations. I have already made comment upon that.
This is not a case where there are any exceptional circumstances of hardship to the prisoner's family, his wife, arising out of his sentencing. Although I have noted the hardship to the prisoner of the circumstances of his bail situation. Parity of sentencing is referred to by the Crown. I have already dealt with that in my remarks earlier.
With regard to the consideration of the comparative cases as they are described both the defence and Crown took me to a range of cases. I have already referred to the decision of Saleh which I read with some considerable interest. I do not believe Saleh was brought to my attention in the sentencing of Mr Liu (Saleh [2015] NSWCCA 299). Mr Saleh was an older man than this prisoner and had much more substantial involvement in the importation of the cigarettes involved, albeit that the duty evaded was considerably less than that in this particular charge.
Other decisions included a Victorian decision of Young v R, the South Australian decision of Zhang, another Victorian decision of Hussein which are contained within the material provided to me by the Crown and they make interesting reading and are of assistance in the way that McClellan J has discussed for example in the decision to which I earlier referred.
With regard to the defence submissions they are at one with the Crown in a range of ways including by reference to the operation of s 16A the relevant issues are to be taken into account. The Crown has drawn to my attention by a summary of the relevant Commonwealth sentencing statutory provisions. S.20AB (1) of the Commonwealth Crimes Act provides that additional sentencing alternatives that are available under the law of the participating State may be imposed and that would include in New South Wales an Intensive Correction Order.
The defence submissions reflect upon the prisoner's early indication of his involvement, not only in the offending for which he was arrested, but his earlier involvement in other activities. The defence submissions are in accord with what the Crown has put about the relevance of that earlier conduct of the prisoner.
The submissions of the defence are that by regard to the prisoner's role it could be characterised towards the lower end of the scale of objective seriousness. Amongst other features that I have not already referred to is the fact that the Court cannot be satisfied beyond reasonable doubt that Mr Li knew the total quantity of the imported product. Although by previous experience he might have had some expectation of the fact that it would be a considerable amount of tobacco and he would have expected that he would have been involved in activities such as those which were demonstrated by the video recording to which I referred from May 2016.
There was evidence before the Court as to advice he had been given by Mr Liu about the illegal character of the offending which I have no reason to doubt. There was submitted by the counsel for the prisoner what were described as "mixed motivations". Primarily, as I said, the prisoner was drawn into this affair by reason of an already existing working relationship with Mr Liu. He was not specifically hired to commit criminal activity.
I have had regard to the various matters that have arisen out of the evidence that has been put and the submissions of the prisoner and also the matters relating to the prisoner's medical condition. The prisoner's medical condition, as I said, is not causally related to the offending and hence the matters identified by McClellan J in De La Rosa to which I earlier referred, particularly at [177]-[167], do not apply. I have already made comment upon his prospects of rehabilitation and contrition which have been referred to in the submissions of counsel for the prisoner by reference to the evidence available as well as his cooperation.
In relation to the issue of the utilitarian benefit of the pleas of guilty and the cooperation as I have foreshadowed, I propose to fix a discount for both matters. The New South Wales Court of Criminal Appeal decision of Xiao reflects upon the fact that there is no prohibition in sentencing under Commonwealth law, contrary to the false beliefs that have been held before, to recognising the utilitarian benefit of the plea of guilty. The facilitation of justice is another aspect of consideration of the weight to be given to a plea of guilty. In this particular case there is both the utilitarian benefit of the plea of guilty and the plea of guilty in conjunction with the cooperation, facilitates the course of justice.
For the utilitarian benefit of the plea of guilty I propose to give the prisoner a discount of 15% upon the otherwise appropriate sentence. It was not a plea at the doorstep of the Court which might attract in certain circumstances a discount of 10%. It was a plea of guilty entered some weeks before the trial, as I said earlier, in circumstances where the trial had to be prepared for the prosecution of Mr Liu.
So far as the cooperation of the prisoner with the authorities is concerned I propose to give the prisoner a discount of 20%. I do so on the basis that the prisoner, whilst the cooperation was not entirely timely, provided cooperation which was ultimately of significance. I bear in mind that the prisoner was required to come forward and give truthful evidence, which he did, and complete evidence and was tested in relation to that evidence and not found wanting. I appreciate the difficulties of a young man, particularly given his past relationship with Mr Liu, coming forward to give evidence in these particular circumstances.
I propose to give the prisoner a combined discount, thus of 35%, upon the otherwise appropriate sentence. I am appreciative of the fact, going back to decisions like El Hani from 2004 and Sukkar from 2006, there are authorities of the Court of Criminal Appeal that are in conflict about whether it should be a staged discount or a combined discount. In El Hani, Beazley JA reflected on the fact that her preferred approach was to give a staged approach. When she came to re-sentencing Mr El Hani, she gave him a combined discount. But it is a matter about which reasonable minds may differ. Thus, I have concluded, this prisoner is entitled to a combined discount of 35%, leading to the conclusion that I have reached that the appropriate term of imprisonment to be imposed is one of one year six months. Bearing in mind the starting point, must be below that of Mr Liu.
In that regard, by reference to imprisonment, s 17A of the Commonwealth Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a Federal offender unless the Court had not considered all other available sentences and satisfied that no other sentence is appropriate in all the circumstances. It is to be borne in mind, there are a number of authorities in New South Wales in relation to the ICO scheme that have observed that the imposition of an Intensive Correction Order is a term of imprisonment, albeit to be served in a particular way and has the capacity to operate as a substantial punishment. Even if it does reflect a significant degree of leniency because it does not involve immediate incarceration (R v Pogson [2002] NSWCCA 225 [8]).
However, of course, the appropriate way to approach the matter is the course identified in decisions such as Douar 2005, the judgment of Johnson J, and before that the judgment of Howie J in the decision of Zamagias [2002] NSWCCA 17, particularly [26]. The Court is required to undertake an entirely honest approach to the matter and determine firstly, if a term of imprisonment is to be imposed, permitted by the legislation, then determine the length of the sentence and then once having determined the length of the sentence, turn ones attention to the appropriateness of alternatives to that sentence being served by full-time custody.
In that regard, in considering that issue of the matter, there are a number of features that I have taken into account. I have taken into account the mental state of the prisoner. I have taken into account the fact that the prisoner is a person with excellent prospects of rehabilitation. I am very mindful, as all judges should be, of the wisdom of the late King CJ of the South Australian Supreme Court that has been adopted in the New South Wales Court of Criminal Appeal on a number of occasions. I particularly cite R v Blackman and Walters [2001] NSWCCA 121, one of the first decisions of the Court of Criminal Appeal to reflect upon the appropriateness of suspended sentences under the then introduced or recently introduced Crimes (Sentencing Procedure) Act, where Wood J, one of the wisest judges that has ever sat in my experience in the Supreme Court, adopted King CJ's judgment in Yarldley v Betts [1979] 22 SASR 108, particularly at 112-3:
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others that have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentencing induces or assists at order (sic) to avoid offending in the future, the protection of a community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm".
I bear in mind in that regard the issue of the prisoner's desire to finish his degree. Overarching all of this of course, is the circumstances in which he does come forward for sentence that I have earlier identified, making himself available to the Crown in effect as a servant of the Crown to assist them in prosecuting Mr Liu, who was rightfully prosecuted and quite rightfully convicted.
The prisoner has much to commend him for the future and in my view, putting aside the issue of what might be for him the difficulties of a custodial sentence, there is of course the prospect even though he would be a Chinese citizen, of his capacity as I must analyse at this point to contribute to Australian society should he remain here.
I will just refer to one last matter. I was provided with supplementary submissions by the defence and the Crown after the matter had been heard a few weeks ago. Those supplementary submissions of the accused counsel reflected upon the evidence that I accept as to the significance of the ongoing studying of the prisoner which is of course relevant to his prospects of his rehabilitation.
A the heel of the hunt, there was a suggestion that if I was to consider a term of full-time custody, I might consider putting that off so to speak so by way of a form of "Griffith" remand, reference to of course the 1977 decision of the High Court where the High Court held that his Honour Judge Goran had the power to remand an offender for a number of months to chart the progress of his rehabilitation in the community, notwithstanding, what the Court of Criminal Appeal held. One of the problems with the case is the High Court reserved its decision for over a year, while the prisoner remained in gaol. Be that as it may, I do not believe I should prolong these proceedings. I certainly have, clearly made up my mind in my consideration of the matter, having regard to everything that has been put by the parties, that a term of imprisonment should be imposed but served by way of Intensive Correction Order. The Crown's supplementary submissions properly, in my view, identify the need for the matter to be resolved and the matter not be delayed and I have acted accordingly. You can stand up thanks Mr Li.
In relation to the offence to which you pleaded guilty, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year six months. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of Intensive Correction Order. The sentence will commence on 26 July 2019. You must report to the Community Corrections office at Burwood on Monday 29 July 2019 at 9.30 am.
The standard conditions apply pursuant to s 73(1) and (2) of the aforementioned Act. Firstly, you must not commit any offence and you must submit to supervision by a Community Corrections officer. The following additional conditions apply. You must perform Community Service work requiring the performance of Community Service work for 200 hours. If you fail to comply with the conditions of this order, sanctions may be imposed either by the Commissioner of Corrective Services, the State Parole Authority or the Commonwealth Director of Public Prosecutions. Those sanctions may include a formal warning, composing more stringent conditions or it may include revocation of this order. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
Finally, you are directed to attend our court registry; that is on level 3, where a copy of this order will be explained and given to you.
I can have a copy of that order for you, Mr Crown, and you, ma'am, in a moment. There's just an error in the draft order which has been corrected. Mr Li, do you understand the orders I've made?
OFFENDER: I understand.
HIS HONOUR: You're sentenced to 18 months imprisonment, but you serve it in the community under the current orders by way of an Intensive Correction Order. You will need to report to the Burwood office at 9.30am next Monday. In that regard, Mr Crown, ma'am, the Sentencing Assessment Report was somewhat out of date, it required him to report, if I made such an order, on a date in May, but I was overseas in May. I don't know where that date came from, so I'll just fix next Monday as the time he should report without the assistance of Community Corrections. We don't get much assistance in this Court I can assure you.
You are also required to be of good behaviour. That means not commit any other crimes. You are also required to be supervised by Community Corrections as they see fit. You are also required to perform Community Service work. I have ordered 200 hours. The Community Corrections Service said that you could perform up to 21 hours per month. The order I've made requires you to serve less than 21 hours per month, but according to the Community Corrections Service you could serve up to 21 hours a month. The legislation or its regulations prescribe a limit upon which the number of hours can be fixed.
You must understand if you fail to comply with the conditions of the Intensive Correction Order, steps can be taken either by the Commonwealth Director of Public Prosecutions or the Parole Authority or the Commissioner of Corrective Services to revoke the order or vary it in some way and you could serve a term of imprisonment. Do you understand that? Right, just take a seat, thanks very much. Yes, anything else, Mr Crown?
EMMETT: Just one procedural point, your Honour. Section 19AC of the Commonwealth Crimes Act as a default position requires the Court to impose a recognisance release order for any term of imprisonment of less than two years. Your Honour has a discretion under subs 4 to not impose that. It just needs to be‑‑
HIS HONOUR: Yes, if I've got a discretion not to impose it, I'm not going to impose it.
EMMETT: It just needs to be recorded and thank you, your Honour.
Thanks very much, thank you, you're excused.
[2]
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Decision last updated: 27 February 2020