R v Lim, R v Tan

SENTENCE 1HIS HONOUR: I propose to impose identical sentences on both prisoners, taking into account the objective and subjective circumstances for reasons I will explain shortly. The total sentence I will impose is fourteen years imprisonment with a non-parole period of ten years. The effective non-parole period of ten years, I obviously have adjusted the non-parole period to reflect two special circumstances, the first special circumstance being the accumulation of sentences, the second special circumstance that may invoke the discretion under s 44 Crimes (Sentencing Procedure) Act, being a slightly extended period of time to adjust to community living and receive appropriate direction from the Parole Service. I am appreciative, of course, of the fact the prisoners will be deported but as is well known, that does not relieve the Court of the necessity to consider relevant special circumstances and make the necessary adjustment. I have given the prisoners each a discount of twenty-five per cent to recognise the benefit of the utilitarian value of their pleas of guilty. 2In relation to the first supply heroin charge, I will impose a sentence of seven-and-a-half years imprisonment which will date from the date that they came into custody. I will fix a non-parole period in relation to that sentence of five years, as I am required to under the legislation to fix a non-parole period for a sentence where there is a standard non-parole period provided. 3In relation to the two offences of supplying a commercial quantity of methylamphetamine, these are respectively committed on 28 July and 3 August, I propose to impose sentences of nine years imprisonment each to be concurrent one with the other but to start eighteen months into the sentence for the first matter, that is, to start on 9 February 2013. I propose to fix a non-parole period in relation to that sentence of six years. 4In relation to the last offence in time, the supply of a large commercial quantity of heroin, I propose to fix a sentence of ten years six months, that sentence commencing from 9 February 2015 that is, two years after the commencement of the sentence before, and I fix a non-parole period for that sentence of six-and-a-half years so the ultimate total sentence will be fourteen years with a non-parole period of ten years. I will give my reasons for arriving at that calculation. 5The prisoners appearing today for sentence are Cheng Choy Lim, who was born as I understand on 17 May 1963, and Yong Hong Tan who as I understand it was born on 24 June 1983. Hereinafter, I will refer to the two prisoners as Mr Lim and Mr Tan. They appear today for sentence in relation to identical charges. The first offence in time is a charge alleging that each of them on 28 July 2011, at Haymarket in the State of New South Wales, did supply a prohibited drug namely, 685.3 grams of heroin being an amount which is not less than the commercial quantity applicable to that prohibited drug. This is an offence contrary to s 25 Drug Misuse and Trafficking Act and carries a maximum penalty of twenty years imprisonment with a standard non-parole period of ten years imprisonment. The second offence in time is an allegation against each of them that they, on 28 July 2011 at Sydney in the State of New South Wales did supply a prohibited drug namely, 998 grams of methylamphetamine, being an amount which is not less than the commercial quantity applicable to that prohibited drug. That offence, contrary to the same provision of the Drug Misuse and Trafficking Act, has the same maximum penalty as the previous offence. 6The third offence in time is an offence of supplying at Sydney on 3 August 2011, a prohibited drug not less than the commercial quantity applicable to that prohibited drug to wit, 996.5 grams of methylamphetamine. The last offence in time is an offence alleging that each of the accused on 7 August 2011 at Lansvale in the State of New South Wales did supply a prohibited drug namely, 1,381 grams of heroin being an amount not less than the large commercial quantity applicable to that drug. That offence, as opposed to the previous offences carries, under the relevant provisions of the Drug Misuse and Trafficking Act, a maximum penalty of life imprisonment and/or a fine of 5,000 penalty units and a standard non-parole period of fifteen years imprisonment. I should point out of course that the offence of supplying not less than the commercial quantity of a particular prohibited drug has an additional or alternative penalty of 3,500 penalty units. 7In respect of the first offence in time, as I have referred to it and will hereinafter refer to as the first offence, there was a person who could be called a co-accused called Xiao Ding who I will hereinafter refer to as Ding, who was sentenced on 10 August 2012 by her Honour Judge Murrell. I have read her Honour's remarks on sentence. In relation to the second and third offences in time there was a co-accused called Cheung Wing Chow, who was sentenced on 3 August 2012 by his Honour Judge Neilson of this Court. I have read the remarks on sentence in relation to those matters. In relation to the fourth offence in time, the co-accused, or person involved in the criminal enterprise to a particular extent was Fook Chan Wong who was sentenced on 24 April 2013 by his Honour Judge Haesler. As with the other remarks on sentence I have read those remarks on sentence and I will refer to some aspects of those sentencing exercises as they are obviously highly relevant to the sentencing of these two prisoners. 8Although the four offences are particularised as being committed by the prisoners between 28 July and 7 August 2009, the evidence reveals to the Court, through the very lengthy statement of facts tendered by the Crown, that preparations and arrangements that culminated on the commission of the offences with which I am concerned began in February 2011 arising out of a joint investigation focussing on large scale domestic supply of prohibited drugs particularly methylamphetamine and heroin in New South Wales. The investigating authorities were assisted by a person described as a "civilian police source" who is named in the 'facts' as "Jimmy." It would appear that he and Mr Tan had some association prior to February 2011 for some few years beforehand, the detail of which is irrelevant at this particular time. 9From late February 2011 up until the arrest of the prisoners there was an active police telephone intercept operation that occurred intercepting various telephone calls but initially, telephone calls between Jimmy and Mr Tan. These telephone calls commencing in February 2011, so far as the investigations were concerned related to discussions between Jimmy and Mr Tan concerning the prospective future supply to Jimmy of prohibited drugs. The relationship between Jimmy and Tan culminated, as I will outline in the later facts, in Mr Tan with his wife arriving in Australia from Malaysia on 29 July 2011 to be ensconced at the supposed expense of Jimmy, but under the close surveillance of the investigating authorities at the Star City Casino. Mr Lim as I understand it arrived in Australia on 2 August 2011 staying at the same facility. There was, as the particulars reveal, a supply to which both prisoners have pleaded guilty when both prisoners were outside the country. The facts clearly establish the basis upon which that charge was properly brought. There was, in fact, two supplies prior to Mr Lim's arrival and two supplies, to which the prisoners have pleaded guilty, after his arrival. 10During the course of the initial detailed conversation set out in the facts on 25 February 2011 Mr Tan sought to organise what was described as a "long term arrangement" with Jimmy for the supply of prohibited drugs in Australia and for the next months Jimmy, and then Jimmy's supposed boss, "David," another civilian police source, cultivated the accused Tan to come to Australia. I do not propose to dwell upon the considerable detail in the facts about those conversations. I refer to some features of them without necessarily indicating that overdue emphasis is being placed upon them. During the course of these various conversations that are referred to in the facts before Mr Tan's arrival in Australia, he referred to a boss or his boss as a man named, "Peter" and, up until July 2011, at various times gave details of his boss' supposed movements around Asia and the Middle East up until that time. Some of those details he provided are supported by the extracts of the prisoner Lim's passports which have been tendered, some are not. 11The first time, as I understand it, Mr Lim spoke to Jimmy was when he became involved in a conversation that was intercepted, of course, occurring between Jimmy and Tan and Mr Tan passed the phone to him. In the various conversations that are cited in the facts, Mr Tan made representations about his responsibility to Lim as his boss, but also showed Mr Tan making arrangements for himself or in his interests to the exclusion of Mr Lim such as on one occasion talking Jimmy not to mention to Mr Lim a commission that Jimmy had been asked by Tan to include in the price. Tan also asked Jimmy without the assistance of Mr Lim at one point close to his arrival in Australia for $10,000 to cover expenses. 12By 20 July, Tan had details of a man that he referred to Ah Hing otherwise known as Mr Ding, to provide to Jimmy and arrangements were made for the provision of heroin as a "sample." Heroin was referred to as "the girl" or "girls" in the course of some of these conversations. In relation to the first supply which involved Mr Ding, there was an agreement between Tan and Jimmy that the cost of the supply to Jimmy would be $150,000 and that ultimately, when the transfer of the drugs occurred, Mr Ding was to be paid $5,000 in cash. It was during a conversation on 22 July that Jimmy explained that he was a "middle man" and that his boss was named, "David," to whom I earlier referred, and David became more involved in the various arrangements and there were many that occurred in subsequent days up until the arrest of the two accused. 13By 25 July 2011 Mr Tan had arranged to arrive in Australia on 29 July, he supplied Jimmy with information as to the cost of his flights and cast upon Jimmy, as I earlier mentioned, the obligation of arranging accommodation for himself and then Lim. On 26 July 2011 Tan also drew to Jimmy's attention the identity of the person Chow to whom I will refer shortly. So far as the first offence in time is concerned, on 28 July 2011 Mr Ding came up from Melbourne to Sydney to supply the drug to Jimmy. Tan on this day spoke to Jimmy and made arrangements for either him or David to meet with Ding. Ultimately, David met Ding at a McDonalds restaurant in Chinatown sometime around about 3.40 pm. David gave Ding an empty blue bag, Ding apparently went back to a hotel nearby and returned approximately a half an hour later and gave David back the bag that had been provided to him and inside it were contained one resealable bag with 335.6 grams of heroin with a purity of 72 per cent, one resealable bag containing 349.4 grams of heroin with a purity of 72.5 per cent and another resealable bag with a small quantity of heroin with a drug purity of 72.5 per cent. The total quantity of heroin that had been handed back to David by Ding, as I earlier mentioned, was 685.3 grams. Ding then travelled back to Canberra by bus. Unbeknownst to him, and Tan and Mr Lim, they were under constant police surveillance. Ding in fact was spoken to by police under the guise of a police operation taking the details of all the passengers on the bus that Ding was travelling in on his way back to Melbourne. Ultimately, Ding was arrested on 9 August. His arrest was delayed so as not to sabotage or prejudice the operation designed to ensnare Mr Lim and Mr Tan. There was contact between Jimmy and Mr Tan after the supply and reference made to "the stuff" being "all right to eat." 14The second supply of a commercial quantity of methylamphetamine came later the same day. This involved the man Mr Chow. He met Jimmy and David that evening near Sydney Town Hall and after some confusion as to whether Chow was to be paid money for the drugs that he was to hand over which involved Jimmy checking with Tan as to what the arrangements would be, David gave Chow a bag which Chow took to a residential complex in Bathurst Street. He returned with that bag, which had inside of it another container with 998 grams of methylamphetamine, which was found to have an average purity of 78 per cent. Chow again was not arrested at that time so as not to compromise the operation. Chow at that point was not paid any money by arrangement between Jimmy and Tan. 15Mr Tan as I said earlier arrived in Sydney on 29 July 2011 with his wife. The room that he was installed in at the Star City Casino had various surveillance devices installed. The facts reveal in considerable detail that in the meetings between David, Jimmy, Tan and on some occasions, the wife and various conversations cited, although I am sure that the transcripts of those conversations run for far longer than the lengthy statement of facts. During one of these conversations Mr Tan agreed to supply 10 kilograms of methylamphetamine and at least four 350 gram lots of heroin on credit. At this stage, the outstanding debt for the heroin and the methylamphetamine which had been supplied the previous day was $305,000. Later coded conversations reveal that heroin was referred to as "number one" and methylamphetamine or "ice" was referred to as "number two" to reflect the order of supplies by Ding and Chow respectively. The facts reveal that Mr Chow was acting on behalf of principals in Hong Kong who apparently, as I would understand it, were the providers of the methylamphetamine that had been imported into Australia for Chow to supply to David and/or Jimmy. In relation to Chow's transactions, it is clear that Lim and Tan at least presented themselves to be, and this is the only evidence, as effectively brokers or intermediaries between the suppliers from Asia, located at least in Hong Kong, to the recipients in Sydney. It is clear on the evidence available to the Court that Mr Tan had knowledge of the source of the methylamphetamine and clearly was able to make all necessary arrangements for the connection to be made between Chow and Jimmy and as he was able to make a connection between Ding and David as the facts reveal. 16During the course of these various conversations Tan had with Jimmy and or David discussions were made about future supplies of ice sitting a minimum price of $160,000 per kilogram. During a meeting between Tan and David in the hotel room Tan received $10,000 in cash as part payment for the methylamphetamine previously supplied by Chow. Also, during one or other of these meetings, Tan told David about 500 kilograms of methylamphetamine to arrive in Australia. There was also a discussion about matters concerning interception of other drug importers in New Zealand, reflecting knowledge on the part of Tan of matters pertinent to the importation of drugs to Australasia. As I have pointed out, there were a number of meetings between Tan and David and or Jimmy between his arrival on 29 August and before Lim arrived. There were meetings where bank account details were provided by Tan to David for payment of money. But, ultimately, no agreement was made about the future supply of 10 kilograms of methylamphetamine until such time as full payment was made in respect of supplies already planned or completed. I assume this is the reason that at least Mr Tan has not been charged with an offence of offering to supply that quantity of methylamphetamine, given the extended definition of supply in the Drug Misuse and Trafficking Act. 17On 1 August 2011 David paid Tan $150,000 in what is described as 'police money' to settle the outstanding debt in relation to the methylamphetamine that Chow had earlier provided. Lim subsequently arrived on 2 August 2011, David met Tan and Lim in Lim's room, which itself was fitted with listening devices, at the Star City Casino. During the early meeting with David, Lim discussed value of drugs and made reference to the fact that he and his colleague Mr Tan would gain only $10,000 from the supply of one kilogram of what I understand to be methylamphetamine. Lim canvassed the possibility with David of him being supplied ecstasy in various ways but David was not interested in these suggestions. There were other discussions about the method in which drugs may be supplied in the future. 18Later that day, Lim and Tan meeting with David discussed supply of a further amount of methylamphetamine on one week's credit with an agreed price if $160,000. It was expected that this supply would be about one kilogram. I should point out, going back to the first supply of heroin, that references were made in discussions between Tan and Jimmy and/or David, of that being a "sample" as references had been made to the supply of methylamphetamine initially as a "sample" for potential future supply. Further, bank account details of bank accounts apparently overseas were provided to David for him to make payment. 19Amongst other things, at the conclusion of this meeting it was understood by David that he would meet Chow the next morning that is, on 3 August to be supplied with methylamphetamine. It thus came to pass that the third offence was committed when on Wednesday 3 August 2011. At about 11am David met Chow again in the vicinity of the Sydney Town Hall and again Chow went to the address at Bathurst Street, returned with a gift bag, gave it to David and some discussion occurred between them about a kilogram being available. There was reference to "one girl" to keep him occupied "for starters." During this transaction confirmation was made between David and Tan that the supply had taken place, the methylamphetamine that was supplied to David was found later to weigh 996.5 grams with a purity of 78 per cent. 20There was subsequent contact between David and Tan and Lim and there were various arrangements made between them which ultimately led to information being provided by Tan that he understood there would be a supply or shipment of drugs, as it turned out heroin, that would arrive in Australia on 8 August or thereabouts. There were further discussions between the parties about further supplies and payment for the drugs supplied. By 4 August the debt owed, as I understand it, totalled $325,000, $145,000 for the heroin supplied on 28 July and $180,000 for the supply of methylamphetamine on 3 August 2011. Also, during this period of time, an unknown male was intercepted on one of the telephone services the subject of surveillance contacting Jimmy looking for Tan and providing a number in Malaysia for Tan to ring. 21The final supply occurred on 7 August 2011. The background to this was that on 5 August 2011 Lim was informed from an overseas source that a shipment would be arriving in Australia that would eventually be at the Stamford Hotel in Sydney and that the drugs had to be picked up by a particular time. In the early hours of 6 August 2011 Mr Lim and another unknown male in Malaysia coordinated timings for the delivery of the shipment. At 10am after various discussions had taken place Lim was given the location and the address for delivery. Later on Mr Tan contacted Mr Wong about picking up the drugs from the Stamford Hotel and at the Stamford Hotel, Mr Wong picked up two 700 gram, in general terms, units of heroin referred to as "girls" or a "pair of girls" with a confirmed price later reached of $150,000 for each of the approximately 700 gram units of heroin. Tan made arrangements for the supply to be given to or provided to David. 22I just point out in passing, if it was not expressly stated in the facts provided to me, that my reading of the sentencing of Mr Wong revealed that Mr Wong was in fact the uncle of Mr Tan and Mr Wong was sentenced on the basis that Mr Tan had recruited him. Ultimately, there was the supply of 1.381 kilograms of heroin on the morning of 7 August which involved liaison with Wong for him to supply David at a McDonalds restaurant on the Hume Highway at Lansvale. These arrangements were largely made by Mr Tan. David told Tan he was going to use the same blue bag as he had used previously and the persons David and Mr Wong met each other in the car park, David saw a package in a Stamford Hotel bag, he placed the drugs in a blue bag that he was carrying, and when it was finally examined, the weight of the drugs was, as I pointed out, the drugs were heroin. The drugs had an average purity of 74 per cent. David then rang Lim to report that he had received the sample and ultimately, Mr Lim contacted Malaysia and requested persons in Malaysia to despatch another two females. Some reference was made to a missing sample of ice that it had been discussed to be supplied to David but as I understood the facts, Mr Lim was told by his Malaysian source that that ice was not for David. 23Of course, by this stage, a great deal of money was outstanding to Tan and Lim for the drugs supplied. On 9 August 2011 David promised to settle the debt that afternoon and various discussions occurred about depositing monies in nominated bank accounts. The outstanding debt at this point was $625,000 and both Tan and Lim were becoming quite concerned at the slow efforts of David to pay what was owed. Lim was receiving pressure from Malaysia over this sum and the pressure upon Mr Tan was reflected in intercepted telephone conversations of this period which in part are before me in transcript form. 24When it was learned by investigators that Mr Lim was intending to fly to Queensland, he was arrested at Kingsford-Smith Airport. When provided legal advice, he declined to be interviewed and has provided no coherent, or in any way believable, account of his involvement in the crimes with which he is concerned. Tan, Chow and Wong were likewise arrested on 9 August in a coordinated exercise and Mr Ding was arrested in Melbourne still in possession of the $5,000 given to him on 25 July. The facts state that between 3 August and 9 August whilst in Australia Mr Lim utilised a mobile phone service provided to him by David, hence the capacity of the authorities to intercept the telephone conversations. During this period of time the facts state that the prisoner Lim spoke to people in Malaysia, China, Indonesia and Dubai. These conversations consisted of receiving details of bank accounts, details of monies to be deposited into them and arrangements in relation to drug distribution. 25Of course, the arrest of Mr Lim and Mr Tan brought an end to any potential supplies of either methylamphetamine or heroin. If not intercepted by arrest, the full extent of supplies that would have occurred, that would have been coordinated by one or other of them in what could fairly be described as a joint criminal enterprise, would merely be a matter of speculation. Clearly, however, they indicated their willingness and capacity to broker at the very least the supply of substantial quantities of methylamphetamine and heroin if available beyond those quantities already supplied. Both prisoners through the facts and the detail of their conversations with Jimmy and David indicated their knowledge at least for the source of the drugs, the timing of importation and the contacts of those that directly imported the drugs to facilitate supply. 26With regard to the co-accused, Mr Ding, he was sentenced on 10 August 2012 for supplying a commercial quantity of heroin, the same quantity as reflected in the first charge in time against each of the accused. He received a discount of twenty-five per cent upon the otherwise appropriate sentence and ultimately sentenced to a total of five years eight months imprisonment with a non-parole period of two years and ten months. I calculate a starting point of the sentence imposed by her Honour to be eight-and-a-half years imprisonment. Mr Ding was twenty-four years of age, he had come to Australia as a student, he had not come to Australia to commit the crimes with which or the crime with which I am concerned in relation to these two accused. Her Honour obviously made a finding of special circumstances and it is clear from the concessions made and the submissions and the facts that he was beholden particularly to Mr Tan as Mr Tan was the person who had direct contact with him to facilitate the supply. 27Mr Chow was sentenced on 3 August 2012 to a total sentence of six years nine months for each offence with a non-parole period of four years in respect of each offence of supplying not less than a commercial quantity of methylamphetamine, however the sentence for one offence was partially accumulated upon the other offence to the extent of one year. Thus, I would understand the sentence imposed to be in effect seven years nine months with a non-parole period of five years. In relation to Mr Chow he was either at the time of the offence, or at the time of sentence, thirty-nine years of age. He had been in Australia for some period of time before the supply, he was a Chinese citizen. The judge found, as I find from the facts available to me, that he was employed by interests in Hong Kong. He like Mr Ding had no prior criminal convictions in Australia although at the age of twenty-one he had apparently been convicted of assault in Hong Kong, a matter about which his Honour gave little weight. He received a twenty-five per cent discount upon the otherwise appropriate sentence and my understanding would be that the starting point of the sentence imposed upon him was nine years imprisonment. 28Mr Wong pleaded guilty to supplying not less than a large commercial quantity of heroin, an identical charge to the charge that I have described as the fourth in time. He was sentenced by his Honour, Judge Haesler to a sentence of eight years imprisonment with a non-parole period of four years. His Honour said in his remarks on sentence that the starting point of the sentence he imposed was nine years, I was told that the discount was ten per cent. My mathematics reveal that the discount must have been slightly greater than ten per cent. In any event, the learned sentencing judge indicated the starting point. Mr Wong was thirty-eight years of age, he, "attempted to deceive police," to quote the findings of his Honour on sentence, he was related to Mr Tan and recruited by him to participate in this offence. Wong Hung Tan was referred to as "his nephew" in the remarks on sentence of the earned sentencing judge. 29Those sentences of course are very relevant in this sentencing exercise, not as comparative sentences per se, in the conventional sense, but as relevant in the assessment of parity issues so far as they apply in circumstances where the objective criminality was conceded by counsel for each of the accused in these matters to be greater, to varying degrees, to the objective criminality of those charged with identical offences. 30Dealing with the cases by each of the accused and dealing first with the case conducted by Mr Lim, a report was tendered from a psychologist Daniel Hopkins which was prepared on 31 January 2013. This sets out the background of the prisoner given by him, a version which is untested as with his version of his involvement in the commission of the offences with which I am concerned. He said he was one of six children, born in Malaysia and had lived there, "throughout his life" before his arrest in Australia. He apparently came from a comfortable family, his father owned a transport business which the prisoner worked in for a period of time. He claimed no issues of physical and sexual abuse, he was involved in business ventures with friends or a friend, that left him out of pocket, one friend absconding with approximately USD100,000 which left him in financial difficulty. The prisoner's father's business went into receivership according to the prisoner in 2005. He went into a car sales business and share market training for a period of time and then in 2008 he said he attempted to set up a health food business venture and also developed a business that sold vehicle parts. He stated that these businesses failed as he was unable to find markets. He tried to develop new markets to sell products through advertising but this further increased his debt and the failed business ventures in combination left him with over AUD250,000 in debt. 31This history that he has given of his business affairs does not sit at all squarely with what appears in his passport to be his movements in and out of Malaysia between 2006 and his arrival in Australia in 2011. As was noted in the course of the submissions, his passport reflects residency in the United Arab Emirates for a period of three years. Nothing is referred to in the history given the psychologist, or by his wife, to explain the reasons for him having residency in the UAE. Neither is any information provided by his wife, or him, to explain the detail of his travel as it appears in the passport. It goes without saying, in the context of him not giving evidence in these proceedings, that his version of his involvement in the commission of this offence given to the psychologist I cannot accept as truthful. Firstly, it is untested and many aspects of it sits at odds with the facts revealed to this Court, particularly the details that emerged from conversations had by Lim and Tan with Jimmy and David and the contacts the prisoner had with interests overseas in the supplies that were occurring in Australia, or were planned to occur in Australia during the brief time he was here. 32I appreciate, just passing to another matter for a moment, that Mr Tan made many what could be called contemporaneous representations about the prisoner and his movements which are at odds with the version the prisoner has given in his psychological report. Of course, I appreciate that Mr Tan is, as learned counsel for Mr Lim pointed out, knowingly concerned with the same criminal enterprise as that with which Mr Tan is charged. I appreciate Mr Tan's contemporaneous representations are "hearsay" and are untested. If it was a matter of conducting a criminal trial, I doubt that there would be any issue that Mr Tan's representations to Jimmy and/or David would be admissible, subject of course to the s 137 discretion, to establish the relationship between Tan and Mr Lim. I will say more about the history of reliability in my assessment of the facts at the end of a summary of the evidence, but the reliability of a number of Mr Tan's representations, although not all of them, is confirmed very much by the prisoner's presence in Australia and the role he took in negotiations which occurred whilst he was in Australia, as well as the negotiations he took part in with Jimmy and David on the telephone when Tan was calling them from outside Australia before 29 July 2011. They are also confirmed by the manner of the communications and the detail of the communications provided to the Court between Lim and unknown persons in South East Asia. 33I must say that the explanation Mr Lim gave in the psychologist's report, particularly at para 21, of his involvement in the offence is frankly, laughable when compared to the statement of facts. It follows that the prisoner's reliability as a historian is very suspect and the ultimate conclusions of the psychological report have to be approached with considerable circumspection given the significant reliability of the psychologist upon the accuracy, reliability and truthfulness of the prisoner as a historian. In fairness, the prisoner does give a history of treatment with antidepressant medication in 1998 to 2000 and does not appear to, if I could use the expression, gild the lily in relation to matters relating to his medical health. But such matters as are raised relating to antidepressant medication and the like are very remote and are disconnected to the matters with which I am now concerned. There is no suggestion of any mental illness or disability having a causal connection with the prisoner's involvement in these charges. 34Having regard to the history he has given about his circumstances, I accept that he had a good relationship with his family and I am prepared to accept that he is a person supported by his wife and sons who have travelled to Australia to support him in these proceedings. But any suggestion that he makes about his involvement in this crime as solely a reaction to his gambling debts and business debts cannot be accepted. Nor can the psychologist's description of the prisoner's involvement in these offences as "opportunistic" be accepted. Based upon his own self-report, the psychologist said that the prisoner did not appear "inherently antisocial." 35I point out in passing that the facts of this matter are that the prisoner's conduct and his conversations with others reveal that he was well connected with sources in China, Malaysia, Hong Kong and elsewhere that were substantially involved in the distribution of heroin and methylamphetamine from South East Asia at least to Australia. This level of access and knowledge does not fall to people who at the last minute opportunistically, or otherwise, fall into the thrall of others. If it were thus, he would have been bringing the drugs into the country as a courier, not as he was as a manager and facilitator for substantial and planned long-term imports and supplies of prohibited drugs, having a knowledge of bank accounts to which large sums of money were to be deposited. It is interesting to note that both he and Mr Tan were very careful to ensure that they at no stage did not handle any of the drugs and tried to avoid as best they could, although could not always do so, handling substantial cash payments required. Of course as I have pointed out, Mr Tan received one very substantial payment for at least one of the supplies after his arrival in Australia. 36The psychologist's view was that the prisoner Lim requires assistance dealing with life events including problem solving and consequential thinking skills. This opinion makes an assumption, as I would understand it, that the prisoner was unable to do that to participate in these crimes. If that is an assumption made by the psychologist, I reject it. Clearly he could. He may of course need assistance in due course in relation to his gambling and financial management skills, but of course the true extent of any indebtedness or his wealth for that matter has not been revealed in the history he gave to the psychologist or in his wife's evidence which I will refer to shortly. There will be, I am satisfied, a need with the consequences of a significant incarceration, to assist him in a range of ways but such assumptions made by the psychologist about his involvement in this criminality are not valid by consideration of the facts to which there were no objection. The extent to which he needs a mental health professional or other counselling on his return to Malaysia cannot be determined with certainty if at all because his true reasons for his involvement in these crimes he has not revealed and on his wife's evidence, she has no idea. 37There was tendered in his case a short report from a psychologist practising in Kuala Lumpur in Malaysia who has treated the prisoner's wife since 2009 and states that she suffers from anxiety, depression, with insomnia and has done so for the past ten years and has been receiving antidepressant and anti-anxiety medication. He wrote, "We treated her actively with antidepressants and mood stabilisers with supportive counselling. (She) showed significant clinical improvement remained relatively well maintained with the current medication regime and supportive counselling however (she) is still quite vulnerable mentally and is prone to relapse when under stress or any emotional upset." 38Optimistically, the psychologist said that it would be "therapeutic and a great relief" to the prisoner's wife for her husband to come and stay with her and for she to look after him and for him to give her the necessary psychological support. Obviously that will not be possible for some years. Judging from the prisoner's travels in and out of Malaysia before he came to Australia, he was not providing the constant support to her when he had the opportunity to do so. I have another medical report stating that the father of the prisoner has hypertension, has previously had prostate cancer and is current asymptomatic in relation to that. He also has dementia. 39The wife prepared a letter the details of which she expanded upon in her oral evidence concerning the conditions of her parents-in-law, the prisoner's parents and her own family. She claimed that she was under enormous financial strain and stress to pay back the prisoner's debts and to support his family which I take to be his extended family at the time of the commission of the offences. She said it was difficult for her family to cope with him in Australia, which I can accept, at least on an emotional level. 40The prisoner also wrote a letter to the Court setting out his background and his family circumstances and claimed that his difficulties economically were the reasons for him committing these crimes. He has expressed regret at being separated from his wife and children and I accept that. But I cannot accept that he is genuinely contrite, amongst other reasons, because he has not sought to present to this Court anything like a truthful account of his involvement in these crimes and has shown no cooperation with the authorities, not that he is obliged to but in terms of s 21A (3) Crimes Sentencing Procedure Act and provided no evidence such as to satisfy the finding of contrition as a mitigating factor. He does ask for leniency and mercy, in not so many words, and also asks for a "second chance." 41The prisoner's wife gave oral evidence in relation to the family's circumstances and her husband's business interests and some evidence in relation to his trips outside Malaysia before coming to Australia. It is clear that that evidence only tells part of the story. None of the evidence of the wife explains or details the circumstances in which the prisoner may have become involved in organised criminal activity as he was for at least a number of months prior to July 2011. The evidence she gave of the current financial circumstances of herself and the prisoner's family was that her family home is worth $150,000 and it has a mortgage in the sum of $100,000. This may be true, but it does not provide a full account of the financial circumstances of the family and is not supported by any independent documentation. I appreciate of course I cannot fill gaps in the evidence with speculation and I will not, but it is difficult to believe that a prisoner who is so ensconced in organised crime located in his home country might not have some financial support from that source. Clearly, he has done nothing to betray the interests of any masters he has in South East Asia anyway. That is a matter about which I cannot make a finding conclusively one way or the other. I understand, of course, that his parents and his wife's parents have medical problems and I accept that that is so but the prisoner's wife's evidence was that the prisoners siblings were "reluctantly" providing for the parents and it seem that no exceptional circumstances arise in relation to the welfare of the parents, particularly given both the prisoner and his wife have extended family to assist them. 42In relation to the circumstances of the wife, she no doubt, accepting her psychiatrist's short opinion, has psychological and or mental health issues to address. But there is no evidence in that report of a deterioration since the prisoner's arrest in 2011 although she remains fragile. In any event, her condition has existed for apparently ten years, at least. The prisoner ought to have realised by coming to Australia to commit serious crimes that should he be arrested this would cause hardship to his wife and family members who are dependant upon him, but he went ahead and took that risk. 43As was conceded in submissions, the difficulties for the prisoner's wife, his parents and her parents do not amount to exceptional circumstances, but are matters to be taken into account as hardships that may be reflected in special circumstances. I approach the wife's evidence about the family's financial circumstances with considerable circumspection because with the exception of material relating to her own health and the health of the prisoner's father, the only evidence independent of her evidence of significance is the evidence in the prisoner's passports of frequent overseas travel, which sits very much at odds with the picture painted by her of financial difficulty or his reasons for travel. Of course, the circumstances of the husband's overseas travel only emerged in cross-examination leading to the tender of the passports to which I have referred. I have already mentioned they show frequent travel outside Malaysia which remains unexplained either to the psychologist or by the wife. 44The prisoner in his personal history to the psychologist never explained why he should be in Dubai and obviously never explained to his wife his business affairs relevant to the current charges. I appreciate the wife may have been shocked by the prisoner's arrest and subsequent incarceration in Australia, but the reasons for that shock and adverse affect upon her, if any, are not fully explained by her or readily identifiable given the secrecy about the prisoner's real involvement in crime in Malaysia. If she knew that he was involved in the business of drug supply the shock would be a matter that excites absolutely no sympathy. If she is shocked because his conduct is a complete surprise to her, then she has been badly let down by her husband. The wife's evidence about her own travel with the prisoner reflected upon one trip to Macau for gambling purposes plus a trip to Thailand apparently to see temples. Again, it does not reflect upon the reality of what appears in the passport nor provide an adequate explanation for the prisoner's travel. 45She was, when confronted or challenged in relation to her evidence, a vague and unacceptable witness unable to provide even basic details about her travel that one would expect to be able to be supplied. 46The written submissions presented to the Court on behalf of the prisoner Lim deal with issues relating to the quantity of drugs and the like. It is to be fairly said that the two supplies of a commercial quantity of methylamphetamine are near the very top of the range of quantity of drugs covered by the relevant provisions relating to not less than a commercial quantity. 47In respect of each of the drugs as I understand it the subject of the charges the commercial quantity is not less than 250 grams, the large commercial quantity is not less than one kilogram. I am mindful of course of a range of authorities and note that the quantity of the drug involved is not a sole determinant in the assessment of the objective seriousness of the criminality. I accept that the quantity of drug is a relevant matter to be considered, in the context of an assessment of the role of the prisoner in the particular supply, and other matters that are relevant to sentencing, including of course the subjective circumstances. 48I accept in relation to the large commercial quantity of heroin supplied on 7 August, that it is at the very low end of the range of weight of relevant prohibited drug covered by the provision. That having been said, of course, that offence, the fourth offence in time, has to be seen in the context of the previous offending of the prisoner that culminated with that last offence and the interception of the prisoner by investigators. 49In relation to the submissions of learned counsel for the accused Mr Lim it was submitted that his role was "within a syndicate" that cannot accurately be identified. 50It was submitted that he was equal in culpability with Tan in a range of ways. Particularly, liaising with Tan regarding supply of drugs to a domestic syndicate, liaising with a member of the domestic syndicate to discuss the terms upon which the drugs would be supplied, liaising with an Asian syndicate member regarding delivery of the drugs for supply into the domestic syndicate, conveying bank account information from the Asian syndicate member through Tan to members of the domestic syndicate for payment of drugs already supplied, attempting to recoup payment from members of the domestic syndicate for drugs supplied. These are some of the matters that can be identified. They are accurate statements so far as they go of the prisoner's involvement. 51All these observations are true, but they neglect to reflect the trust in the prisoner given to him by the "syndicate", to use the words of learned counsel, to have the authority to do the tasks. He was no courier or delivery boy. The matters identified whilst accurate and fair also neglect to reflect the direct evidence of the prisoner's involvement of negotiation of price or approval or price for drugs to be supplied. He was described in the submissions of learned counsel as a 'middleman', but the prisoner provides no detail as to who were the people at one end of the bridge at least with whom he was liaising to facilitate the supplies. 52It is conceded in submission that such people are a well-known phenomenon of drug trafficking syndicates and such persons are integral to the success of the syndicate and deterrent sentences are required. Nevertheless it is submitted the appropriate sentence will be significantly less than that for persons more senior in the hierarchy. I will deal with that submission later after I have summarised the material in the case of Tan. It was submitted that the prisoner's reward was limited to $10,000 per kilogram as commission to be shared with Tan. 53Although it was acknowledged the drugs would be supplied exceeding the quantities the subject of the charges the reward the prisoner was to receive was said to be modest. It is submitted that the fact that he shared the commission or profits with Tan is inconsistent with him having a role high in the hierarchy of the "syndicate" and being more of a middleman. Reference is made to the discount to which the prisoner is entitled pursuant to the guideline judgment of R v Thomson and Houlton. This is not disputed by the Crown and the prisoners will receive a discount of twentyfive percent each for each offence upon the otherwise appropriate sentence to represent the utilitarian benefit of the plea in each case, the prisoners having pleaded at the Local Court and been committed for sentence. 54The subjective circumstances adverted to in the submissions include, and correctly so, the absence of prior criminal convictions which I take into account. This is not a matter of great significance in this matter for several reasons. Firstly, without having to cite authority, it is commonly held in relation to serious offences of drug supply, as these are, that absence of prior convictions is not a significant matter given the seriousness of the offending. But here, of course, we have the fact that if the prisoner was without prior criminal convictions he was involved in a series of criminal offences each themselves significant. 55He was also, as is conceded by his counsel, involved in organised criminal activity and clearly so for some months before his arrest in relation to these matters. Thus as the facts clearly reveal, he was an undetected criminal. This is not a case of a man with no prior criminal convictions opportunistically and impulsively engaging in serious crime. In relation to his failed business ventures and his indebtedness it is asked that those matters be taken into account as reflecting upon his circumstances of involvement. 56I cannot be satisfied as I said earlier that he relevantly had the significant indebtedness that he claims contributed to his offending. He may be indebted, as I said, but its causal connection with the offending I am not satisfied has been established. It was submitted by his learned counsel both skilfully in writing and orally that it should not be assumed that the offences were committed for greed. That submission I cannot accept, because clearly these are offences of greed and could not in any way be categorised otherwise. Even if he did commit crimes to assuage his indebtedness it would not automatically follow that he had not acted through greed in any event. 57The facts of the matter are that as a man significantly involved in organised criminal activity in Southeast Asia, no motive has been advanced which could be accepted to justify his conduct or to in any way diminish the greed selfevident in that conduct. I am urged to consider the circumstances of his parents and his wife's parents through their illhealth. As I said I accept the prisoner has responsibility for his wife and his children, that they will miss him and this is a human component of this sentencing exercise which I am obliged to take into account. 58On the other hand the prisoner is clearly the architect of the situation that he faces, not this Court. The Court is not responsible for any difficulties either financial or emotional that he will suffer as a result of his clearly deliberate and wellplanned behaviour. Reference is made in the submissions both orally and in writing as to the need to find special circumstances through partial accumulation and other matters that may relevantly be special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act. I accept some partial accumulation of sentences is itself a special circumstance and I have reflected that in the adjustment of the non parole period. 59I have had regard to Pearce principles particularly, what was said by the majority of the court in Pearce v The Queen [1998] 194 CLR 610 at [45]. I have also had regard to decisions such as Cahyadi [2007] 168 A Crim R 41, at [12] and R v XX [2009] 195 A Crim R 38, at [52]. 60In relation to the sentences passed upon the other offenders it was submitted that they each had differing roles and different subjective circumstances. It was conceded they each played a lesser role than this prisoner, although it was submitted Mr Chow's role was not substantially lesser than the offender and there should be only limited differentiation warranted between the sentence imposed upon Mr Lim and the sentences imposed upon Mr Chow. 61The oral submissions of the prisoner at one point concentrated upon the need to approach the contemporaneous representations of Mr Tan about Lim, or Peter, with caution because of his knowledge of the criminal enterprise and his personal concern and involvement in the relevant criminal enterprise and events. It was also, as I said earlier, untested. Of course, I accept one must exercise caution for the reasons advanced by counsel, but it's a matter where greater caution would be required where someone criminally concerned in a particular criminal enterprise was actually giving evidence, for one's own benefit, in criminal proceedings against the accused. 62Section 165 Evidence Act 1995 sets out matters that may be taken into account as making evidence of particular witnesses unreliable. Of course, this is concerned with the circumstance of a person actually giving evidence rather than a contemporaneous account, as a general rule. In this matter we have Mr Tan making representations in unguarded moments when his conversations are being secretly recorded. Whilst I accept that caution submitted by learned counsel must be exercised. Having exercised that caution, noting some unreliability of Mr Tan, I accept that his references to Mr Lim as being his "boss", in a technical sense at least, was an accurate description of his then relationship. 63It was conceded in oral submission that much of the background to this matter is "unknown" in the context of the facts as opposed to the history given by the prisoner to the psychologist. I accept, however, in relation to what Tan said to Jimmy and David, that there were a number of examples of Tan talking up what he could do. Using what I would call 'sales puff' and this could have included descriptions of things that Mr Lim was doing at the time or had done in the past but it was conceded in submission that Mr Lim did play an important role and he was more than an intermediary or a subordinate to the syndicate. 64He was not a courier. But it was also submitted he was not the "ultimate boss", but somewhere in between. I have taken into account all matters that were raised in those further oral submissions many of which reflected upon what was in the written submission. I was also I hasten to say referred to the decision of Buttrose which I will refer to in a moment. 65Turning to the case for Mr Tan he, like Mr Lim, did not give evidence. He produced through his counsel a psychological report, a photograph of him with a child, some police reports from Malaysia prepared in 2009 relating to events reported to police where he was assaulted or "kidnapped" or placed in physical jeopardy by other people apparently in relation to debts owed by him to loan sharks as they are referred to. I was also provided with a letter from his parents dated 25 September 2012, a medical report in relation to his father, a work reference for the period 2007 to 2009 and some certificates for programs he had completed in custody. 66A psychological report from Gareth Dawes was prepared from an assessment conducted on 20 September 2012 and sets out a deal of information provided by the prisoner and other sources including of course the police reports to which I have made earlier reference. The police reports were discussed in the course of oral submissions with learned counsel for the prisoner. I appreciate they confirm that in 2009 the prisoner was under some financial pressure at that time, but they do not, in the context of all the evidence, persuade the Court, or establish if it be a matter requiring establishment on the balance of probabilities by the prisoner, that the prisoner committed the current offences under duress. 67In fact, I find no evidence of duress that is relevant to the offending behaviour. Of course the prisoner may have had financial difficulties at the time of the offending, but the truth is the contemporaneous records of the prisoner's representations between February and July show absolutely no hint of the prisoner acting under any outside pressure other than, of course, the pressure of completing the deal and selling drugs. The psychologist's report noted "a range of high level reporting for problem behaviours and adverse consequences" with "poor problem recognition". 68His scoring on actuarially based testing showed him to be at the "upper range of problem gambling" and it was said that this pattern is consistent with dependence or addiction. In that regard, noting the submissions of counsel which I will come to in a moment, it may be that the prisoner was a problem gambler, or had debts from problem gambling before coming to Australia. But, in the context of this prisoner, like Mr Lim, not providing a coherent or reliable or truthful account of his connection with Mr Lim, the syndicate as it is described by Mr Lim's counsel in Malaysia or his involvement in the commission of this offence, no basis has been established, or can be identified, for concluding that there was a causal connection between such "precipitating circumstances" and his offending. 69The prisoner is said by the psychologist to have evidenced some "guilt" and "shame" about his gambling behaviours and is thought to be in remission, or recovery, from any "gambling dependence disorder". The psychological survey of him in areas such as thought disturbance, antisocial tendencies, alcohol and drug addiction and the like, found no existence of antisocial attitudes or behaviours but did find poor selfesteem and the presence of "disorganised thought processes". 70This matter was explained as indicating "impact of thought processes that resulted in poor concentration". My assessment of this analysis is that it reflects upon the current circumstances of the prisoner's custody awaiting his fate in court. There is absolutely no evidence of any psychosis or mental health problems contributing to his offending and such symptoms as are identified by the psychologist can only be seen as reactive to his current circumstances. The psychologist's testing, of course, is part based on a history provided by the prisoner which is scarcely to be regarded as completely truthful or reliable. 71It is fair to say, however, he has not himself 'gilded the lily' and he has not sought to claim a history of violence or drug addiction or the like. The psychologist felt that there were no historical indicators existing to elevate the risk of recidivism. His clinical presentation failed to reveal any factors that might elevate current risk but he did have stresses arising from his current circumstances. He opined that the prisoner was of "low risk of reoffending". This would certainly be true whilst he is in Australia, unless he commits crimes in custody. Ultimately, when he completes his sentence he will be deported. 72Recommendations in the report reflect upon the effect of a protracted sentence in a foreign country and separation from his family. It is said that absent the debt and gambling problems the prisoner would be unlikely to reoffend. The psychologist stated the prisoner would benefit from psychological assistance to address adjustment to the community and to address financial pressures. He also would be assisted by relapse prevention skills obtained by various programs in custody. I have taken into account the psychologist's report so far as can be taken as reliable given the reliance on the history of the prisoner. 73I note in relation of course to the prisoner's history that the prisoner does not give any history of "negative peer influences" nor gives any indication of the influence of "illicit substances" in his offending. Given that there is no suggestion that he was using "illicit substances", it thus falls to be that the prisoner has failed to explain in any way whatsoever how he came to be associated with Mr Lim and have direct knowledge of matters pertinent to the sophisticated importation and/or distribution of drugs in Australia. As many of the conclusions in the report are based upon the truthfulness of Mr Tan again the findings in the report must be approached with some circumspection and much of the report does not address the reality of the facts of these matters and the reality of the way in which Mr Tan conducted himself in the negotiations with Jimmy and David. 74I accept the prisoner has a child but is separated from his wife. I accept that his parents are not wealthy, they have shame from his incarceration. The mother apparently of the child has gone to live in Japan. His family are upset about his presence in Australia. They will support him on his return. I note, as I said earlier, the reference in the reports cited by the father of the treatment of the prisoner by loan sharks in 2009. The parents indicate to the Court that their son has expressed to them regret and remorse for his involvement in these crimes. It seems to me much of that regret and remorse is of the fact that he was caught. 75They state that this will be a very painful lesson for him being sentenced in Australia which I accept. There is some financial predicament for the family and some pressure it is said upon the family from people to whom the prisoner owes money. This is a situation the prisoner has left in his family's lap and does not assist me in assessing the criminality of the prisoner. Certainly it is not a mitigating factor either. It is suggested in the letter from the father that the bad people that are pursuing him for money do not accept that he is not in Malaysia. I would be very surprised, if the prisoner does owe money to "bad people" that his presence in an Australian gaol could not be established to their satisfaction given his association with organised criminal elements in that country. 76He has completed the Getting Smart program and has undertaken an English course. He acknowledges in his communication with the Court that he is aware of the serious wrong that has brought him into custody and has learned a very painful lesson. He is upset at the fact that he cannot look after his parents or his child. He asks the court to accept that he was contrite and regrets his conduct. He says that he would never commit such a wrong again in his life. I note his statements of regret and remorse but can give them little weight in the absence of a frank account of his criminal conduct. 77I accept that his plea of guilty might be seen as evidence of contrition, but the facts of the matter are that the Crown case against both men was overwhelming, given the telephone intercepts and the listening device conversations and the objective fact of the supply of the drugs in accordance with the arrangements hatched by telephone or in the privacy of hotel rooms. As it is acknowledged in the submissions by counsel for Mr Tan, the coaccused were associates at the very least, if not members, of organised criminal elements and clearly if they have failed there may be repercussions for them. 78I accept as a reality of the situation that if they were to tell the truth about their involvement in these crimes they would run considerable risk or their families would run considerable risks in their home countries. They are not penalised in sentencing for not telling the full story or the truth or avoiding any form of tests or proper examination of their criminality or an examination of their motives, their financial rewards and related issues. However, on the other hand, simply telling a story to a psychologist as they each did that was transparently inadequate to explain their involvement in the commission of these crimes does them no credit in relation to the issue of contrition. 79It reveals them to be unreliable or untruthful historians and it reveals them as not being entirely frank or even partially frank in relation to their involvement in these crimes. 80Mr Tan's learned counsel prepared detailed written submissions in relation to the criminality of the prisoner and other relevant matters to sentencing. The learned counsel referred to the standard non parole period and I will deal with that matter shortly. There was much in the written submissions on matters of legal principle from both counsel with which there could be little disagreement. 81Duress is raised as a mitigating factor and a number of authorities are put to the court as supporting the relevance of duress falling short of a defence. I accept without any reservation that duress may be a mitigating factor if satisfactorily established. However, here there is no satisfactory evidence to establish the existence of any duress on the part of the prisoner. In that regard I note the details of two intercepted conversations in which Mr Tan refers to pressures upon him in relation to the arrangements being made with Jimmy and David. 82These statements by Mr Tan, however, are not evidence of duress. They are merely statements of the reality of the situation that he and Lim were ultimately responsible for organising the delivery of substantial quantities of drugs on credit or on part credit and they were very anxious to ensure that they got the money otherwise there would be obvious consequences for them that have absolutely nothing to do with duress. They have everything to do with the associates that they kept or the associations they had in the drug supply business. 83I note the submissions by learned counsel in relation to Olbrich and Raz concerning the need to identify the role of a particular offender. It is accepted by the prisoner Tan that he was a higher level of criminality than the "three runners", including Chow, who was "an agent of his Hong Kong principal" and more than a "mere runner". It was accepted in submissions that Mr Tan had a middleman role and exercised a degree of autonomy on a day to day basis, handling the proceeds of crime, negotiating prices, but it was submitted that he operated on instructions from others including his coaccused and that he should be differentiated from Mr Lim. 84Of particular significance were representations that Mr Tan made to others that he had to "connect roads .. make connections for him", being a reference to Lim. He also made statements of the need for money from Jimmy to cover expenses. He made representations about his commission which was said to be modest and sharing in the commission with the coaccused. It was also submitted that he gave limited information in relation to bank accounts and was dependent upon Lim for that information. I accept at all relevant times that Tan spoke of Lim in his absence he referred to him in terms that indicated he was, that is Lim was Tan's boss, and he also told Jimmy and David of his need to consult with his "boss" to make certain executive decisions. 85On the other hand he made a number of representations which were either incorrect, or simply untrue, or clearly 'sales puff'. For example, I am prepared to accept in his favour that his assertion that he could arrange the importation of 500 kilograms of prohibited drugs was sales puff. He said at one stage that Mr Lim was in Indonesia when in fact the passport does not reveal this to be true. Of course, at that time in June 2011, Mr Lim was in Thailand and China and possibly somewhere else. But he was not in Indonesia. Tan could have been mistaken, or he could have just been making things up. 86I note also that Mr Tan participated in negotiations in the presence of Lim with little evidence of deferral. As was pointed out in the written submissions he did undertake important tasks without consulting Lim. I point out also the facts reveal that the contact with Jimmy which led to the downfall of these two men was developed by Tan arising out of some past association. It may be that at a later time negotiations were evidenced to be under the supervision of Lim, particularly before Lim's arrival in Australia and Lim's arrival in Australia confirms at least circumstantially that fact. 87However, what was actually being done to give effect to the relevant supplies shows that Tan took a very active role and was deeply involved in discussions and negotiations, some of which he initiated and/or encouraged. 88It was submitted as far as subjective circumstances were concerned I should take into account Mr Tan's relative youth. He is twentynine years of age, and his family responsibilities in Kuala Lumpur. I take these matters into account but the facts of the matter are Mr Tan is a mature man and an experienced man it would seem given his negotiations with Jimmy and could not call upon youth nor for that matter to any significant extent his "marginal" youth compared to that of Mr Lim. 89Concessions were made about the offence being committed for financial gain, although it was submitted this arises out of his gambling addiction. In relation to his gambling addiction there is not sufficient evidence to accept that to be in existence at the time of the commission of the offences with which I am concerned or the leadup to the offences with which I am concerned. I note in that regard the judgment of Latham J in the decision of Le and adopt what her Honour says about the matter. This matter likewise fails in limine, so far as any "mitigating" aspect of gambling addiction, should there ever be such mitigation available in a particular case. 90In relation to the issue of duress, returning to that just very briefly, as it was very much at the heart of the oral submissions made as well as the written submissions, it is apparent, without having heard the conversations of course, that in the arrangements made with Jimmy, and later David, the prisoner gave absolutely no indication of fears for his safety, personal misgivings, existence of threats, pressure upon him or anything of the sort. He was an active and willing participant in the forthcoming criminal enterprises, enthusiastic to organise his trip to Australia. In fact, he brought his wife along for a holiday apparently all expenses paid without regard of course as with Mr Lim to the consequences of their conduct upon the residents of Australia. 91Submissions were made that I should make a finding of special circumstances based upon the material within the psychologist's report and the other features of the case subjectively, the hardship of the prisoner being separated from his family and being separated from his culture and also of course noting the need for partial accumulation of sentencing. It was submitted that I should not impose a "crushing sentence" upon him. I must say in relation to some of these matters, in the context of assessing his prospects of rehabilitation, the absence of any existing drug and alcohol addiction that might be said to contribute to his offending does not give much confidence in that regard. 92It is clear, as with Mr Lim, that the prisoner was involved in these criminal offences for financial gain or for "greed" if one wants to put it that way. The involvement of the prisoner was not altruistic or driven by any addiction that compelled the prisoner to act 'out of character', if that be the correct expression. As the prisoner is clearly concerned and connected to criminal elements in Malaysia involved in organising substantial criminal activity, the question of the prisoner's prospects of rehabilitation are very much tied up with his capacity to separate himself from those people. 93It is also submitted that I should accept that the prisoner has expressed remorse. Ultimately the final position is that the prisoner should be sentenced to a term of imprisonment less than that of his coaccused. 94The Crown's submissions included an indication that there is no expected prosecution of the offenders in Malaysia. I appreciate it has got nothing to do with what I now have to do, but if these two offenders committed these offences in Malaysia I would expect that they would be subjected to penalties far harsher than can be imposed in New South Wales courts. 95The Crown submitted that aggravating factors arising in this matter included the fact that the prisoners were involved or part of organised crime, they committed the offences for financial reward, that one or other of the offences form part of a series of criminal acts and they committed the offences without regard to public safety. The Crown agreed with Ms Fanning's submissions that I should differentiate between the two offenders and went on in some detail, which I need not reiterate concerning the reasons for that. It is submitted that there was no evidence reliable to conclude that they were, that is Lim and Tan, to share in a commission of $10,000 per kilogram of prohibited drug. 96Mr Gartelmann, in his very brief and succinct submissions in reply, pointed the Court to material that, in fact, supported that proposition as had been advanced by him. The Crown agreed that the prisoners were facilitators for the supply of prohibited drugs from other sources. The Crown noted the need to have regard to the purposes of sentencing particularly general and personal deterrence, which I do, and noted the decision of Le particularly at [32] to which I have referred. The Crown said there were no exceptional circumstances in this case and no special circumstances I pointed the learned Crown Prosecutor to some aspects of the matter, particularly the partial accumulation of sentencing, which would constitute exceptional circumstances. 97With regard to the comparative objective criminality of each of the offenders I have already made various observations about that. I accept that each of the offenders is more criminally culpable than Ding, Chow and Wong and in fact substantially so in each case, even allowing for Mr Chow being an agent of a Hong Kong syndicate. Mr Tan and then Mr Lim on different occasions organise Chow to be available for David and/or Jimmy and were aware of what he was doing and I note Chow's role was to handle the drugs. 98I also note Chow was already resident in Australia, albeit on a student visa as I would understand it, he had not come to Australia, as had these two prisoners, to commit these crimes. I am satisfied beyond reasonable doubt that Mr Tan was reporting on occasions and directed on occasions by Mr Lim or acted on his approval. It is common ground on the submissions of both counsel that Lim and Tan for various reasons were responsible to a foreign syndicated based in Southeast Asia probably Malaysia. It is common ground that they were participants in organised criminal activity. But it was established from the facts provided to me that Tan undertook a large number of tasks of his own motion, or a large number of tasks within Australia, with which I am concerned, cultivating Jimmy and organising the subsequent supplies, even organising Jimmy to hide his commission from those that employed him and discussing arrangements for particular supplies or future supplies and the receipt of money. 99He even received as I said earlier a substantial sum of money. It was submitted, as I noted, that if Lim was more senior than Tan then objectively his criminality is greater. This analysis is, with respect, flawed. I refer to The Queen v Olbrich [1999] 199 CLR 270, for example in the decision of the majority at [19] - [21]. 100Without dwelling upon the judgment the Court noted amongst other things that in some cases it might be possible to identify different levels of culpability but then the Court went on to say: "There are, of course, cases in which one offender is prosecuted but it is clear the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation and that in turn might assist in identifying the nature of the offender's criminality. But where there is no evidence one way or another to suggest that this is such a case that may not be so." 101The Court also pointed out that if several people are convicted of offences the distinction between couriers and principals may prove a useful shorthand description, but it may not. This point is taken up in the decision of Wong v The Queen [2001] 207 CLR 484, where the court (at pp 607-608) noted by reference to Olbrich, that in general the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be extracted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are to be imposed. 102But, as the Chief Judge at Common Law in the decision of Lee [2007] NSW CCA 234 said, particularly between [24] and [27], it is important to bear in mind that the offence for which an offender is to be sentenced is a breach of Australian law related to the importation into Australia of the relevant drugs. "Whatever be the international arrangements and the complexities of the chain that makes the drugs available for importation it is the criminality involved ... which must identified. There may be a 'Mr Big' in which the mastermind of the complete enterprise but this may not mean that the role of another who is subordinate to 'Mr Big', but who has the primary responsibility for affecting (the importation) is reduced to that of a middleman who must be sentenced at a middle level of responsibility for the offence. The nature and extent of the criminal networks which exist and are capable of accumulating tens of kilograms of drugs for importation may be known or at least partially understood by those involved in the criminal investigation process. However for want of admissible evidence, they are unlikely to be known to the sentencing judge in a particular case." 103Later on, his Honour said that the concern is with the offence and the consideration of the offender must be assessed by consideration of the involvement of the offender in the steps taken to give effect to the offence. The fact that an enterprise, even a large scale enterprise, has been created overseas before the drugs are available for importation, is of marginal relevance to an understanding of the criminality of those who actually aeffect the offence. Here I am not aware of the details of the organisation that everybody agrees exists as being at the back of the two prisoners. 104Even if I were satisfied Lim had a form of supervisory role, it does not necessarily follow that the objective criminality of Lim is greater than that of Tan. Both offenders knew the quantity of prohibited drugs that were to be supplied. In some respects Tan may have received information from Lim, but both offenders are shown to be claiming to be sharing equally in the commission to be received. I have got no reason to doubt that they asserted that to be true, whether it was true or not I cannot say. Both offenders at relevant times from mid July onwards actively encouraged the transactions that were undertaken by Jimmy and David with the respective contacts that had been outlined. 105If Tan was subject to direction from Lim, and from time to time required to report to Lim to receive further direction, the facts presented by the Crown show that Tan was the person who initially set up the contact with Jimmy as I said and who over a period of time advanced the prospect of a result ultimately to occur in late July and early August. On the evidence available, as opposed to speculation on what was happening behind the scenes, it is clear Tan was more actively involved at least up until mid July in making the arrangements for the visit of himself and Lim to Sydney with the approval of Jimmy and his boss David. 106That Lim was consulting with Tan, giving him direction from time to time, has to be seen in the context of Tan as the facts indicate having the authority to make arrangements as well and to relay information back and forth as the case may be and to exercise substantial discretion and ultimately on one occasion to receive substantial sums of money. Both men was acting in various ways as brokers or facilitators for the supply of methylamphetamine coming from Hong Kong and the heroin. They both knew, as I would understand it, when the heroin was arriving in Australia even if they did not know how it was specifically imported. 107They knew the source of the respective drugs. The facts are not entirely clear as to whether the "organisation" was responsible for the importation or whether they ultimately were facilitating the supply to the Australian connection of the heroin imported by another group. This brings into sharper focus the matters adverted to at [27] of Lee, even accepting the supervisory function of the prisoner Lim it has to be weighed against the greater activity of the prisoner Tan. It does not on balance establish that Mr Lim is more culpable or that his criminality is objectively more serious than Tan. 108They both in various ways had managerial and principal roles in facilitating the various supplies with which they are charged. The question is one of determining their respective culpability not so as to increase the sentence imposed upon him Tan, or to decrease the sentence imposed upon Lim, but to give equal attribution or appropriate attribution to each of the prisoners. Ultimately the focus of the assessment of their objective criminality is upon what they did in the context of the criminal enterprise to which they pleaded guilty and then to consider the subjective circumstances accordingly. 109Although it is true, where established, that people performing at different levels of a particular crime organisation should attract ordinarily appropriately differentiated sentences, the fact that people perform different roles or had different responsibilities does not necessarily establish satisfactorily that they were in fact operating at different levels. 110I have had regard to s 3A Crimes (Sentencing Procedure) Act there is a need for elements of general deterrence and personal deterrence in the sentencing of the prisoners and there has been nothing advanced that would diminish the relevance of that in the sentencing exercise. 111There is a need to make the prisoners accountable and denounce their conduct. There is a need to ensure that they are adequately punished. All the aspects of the purposes of sentencing identified in s 3A arise in this matter, even the promotion of their rehabilitation. So far as relevant matters arising under s 21A are concerned, first of all, I note the terms s 21A(1) including the need to have regard to objective and subjective factors relating that affect the relative seriousness of the offence other than those matters identified in subs (2) and (3). 112I also note, from the terms of s 21A(5), of the fact that any aggravating or mitigating factor is relevantly known to the court does not require the court to increase or reduce the sentences appropriate for the offences. I note in relation to this matter that an aggravating factor is that each of the prisoners were part of organised crime arising under s 21A(3)(n). I note that each of the offenders committed the offences for financial gain, but having noted that this is an inherent characteristic, if not an element, of the offending that carries such heavy penalties. 113I note in one view of it some of the offences involved a series of criminal acts. But then again that is the characteristic of drug supply including various agreements for supply or ongoing supply, possession and distribution of the proceeds of crim and other features which are the very character of the principal offending and thus giving rise as I said earlier to the significant maximum penalties. I am very mindful of course in this context of the need not to doubledip given the fact that some aggravating factors identified in s 21A(2) themselves are as I said earlier characteristics of the offending which attract significant penalties. 114I note the Crown's submissions of the character that the offences were offences committed "without regard for public safety". There is authority to support a substantial supply of prohibited drugs may satisfy that aggravating factor. I think it is unnecessary to identify that in this case, given the objective facts. 115With regard to the matters arising under s 21A(3) the mitigating factors I find are, firstly, that neither of the prisoners had prior criminal convictions, their pleas of guilty are mitigating factors. I cannot conclude on balance given the lack of honesty about their background and connections that the prisoners are unlikely to reoffend or have good prospects of rehabilitation, I have earlier found that I cannot be satisfied on balance that they have shown relevant remorse as required under s 21A(3)(i). 116With regard to the issue of parity of sentencing as it arises by consideration of the sentencing of the cooffenders, I first of all note the need to avoid justifiable sense of grievance. Particularly in relation to the fixing of the appropriate sentences, having regard to the objective criminality of the offenders. Each of the various offenders that I have identified have varying subjective circumstances although there is not a great deal of difference in the subjective circumstances between these prisoners and the others. I also note the observations of McClellan CJ at CL in Lau v The Queen [2010] NSW CCA 43, as to the legitimate and justifiable sense of grievance that might arise in failing to appropriately deal with the issue of "special circumstances". 117on the issue of parity of sentencing with cooffenders I note the decision of the Court of Criminal Appeal in Jimmy [2010] NSW CCA 60, and particularly the judgment of Rothman J and his reference to Aristotilean in principles of 'equal justice', summarised as being that alike will be treated alike and unalike will be treated to the extent of their unalikeness. Clearly heavier sentences are required of these prisoners than to be imposed upon the coaccused as was acknowledged by their counsel. In relation to the issue of the sentences of the coaccused I have taken those matters into account. In relation to the fixing of the non parole period I note that the non parole period is the minimum period of imprisonment which the crime for sentence requires to be served (Power v The Queen [1994] 131 CLR 623). 118I note the factors relevant to fixing the sentence are the same as those or will include those required in fixing the non parole period and the weight given to each factor may differ depending upon the relevant section or part of the sentence to be determined (see R v MA [2004] 145 A Crim R 434 and Bugmy v The Queen [1990] 169 CLR 525). In assessing the sentences and the non parole periods, noting those principles, I note that the subjective circumstances of the prisoners are not really greatly dissimilar. They both will suffer much the same hardship in custody, they both have family dependents in Malaysia, neither of the prisoners has any identifiable mental or physical disability. There is no significant difference in their other subjective circumstances, by and large, both men are without criminal convictions, both men are persons who have displayed in the past some industry, although the exact extent of industry they have exercised that relates to legitimate activity is not entirely clear. 119In the case of both prisoners I have determined by reference to all the objective and subjective circumstances that both the terms of imprisonment, the extent of accumulation and the non parole periods should be the same, so as to not give rise to that justifiable sense of grievance that I earlier referred to. I have made a finding that there are special circumstances arising pursuant to s 44, the accumulation of sentencing and the need for an extended period of supervision only marginally adjusted I hasten to say to assist the prisoners to adjust to community living. In that regard I note the decision in Rau. 120I have had regard to comparative sentences, I have been referred to Buttrose [2011] NSW CCA 35, particularly at [40] onwards, and the various cases therein identified of Wang, Coetzee, Stankovic, XX, El Helou, Sukkar, and also cases of Lui, Liu and Huynh, Sciberras, Chen, Lawson and Aoun. They provide some assistance, but each case is different. 121With regard to the relevance of the standard non parole period I have already pointed out I must fix a non parole period in each case, but in fixing the non parole period and considering the standard non parole period I note what was said by the High Court in Muldrock [2011] 244 CLR 120 and particularly the Court's conclusion that in fixing the non parole period in a case involving a standard non parole period is one part of the larger part of passing sentences, fixing the non parole period is not to be treated as if the standard non parole period provides a necessary starting point or an important end point in framing the exercise. 122The exercise of the discretion to fix a non parole period and the consideration of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act, in conjunction with s 21A, requires an approach to sentencing consistent with the approach to sentencing described by McHugh J in Markarian v The Queen [2005] 228 CLR 357 particularly at [51], whereby the judge endeavours to identify all the relevant factors, including those at common law, to the sentencing exercise, discusses their significance and makes a value judgment as to what is an appropriate sentence. I also note what the Court specifically said at [27] - [29] which I need not quote for the purposes of this judgment. 123Mr Lim, if you do not mind standing thank you very much. Sir, in relation to the offence of supplying not less than a commercial quantity of heroin on 28 July 2011 you are convicted and sentenced to a term of imprisonment which consists of a non parole period of five years to commence on 9 August 2011 and to expire on 8 August 2016. The balance of the sentence is two years and six months to expire on 8 February 2019. 124In relation to the offence of supplying not less than a commercial quantity of methylamphetamine on 28 July 2011 and the further offence of supplying not less than the commercial quantity of methylamphetamine on 3 August 2011, you are convicted, you are sentenced to a term of imprisonment which consists of a non parole period of six years to commence on 9 February 2013 and to expire on 8 February 2019. The balance of the sentence of three years is to expire on 8 February 2022. The total sentence of imprisonment is nine years. For each of those offences each sentence is to be concurrent one with the other. 125In relation to the offence of supplying not less than a large commercial quantity of heroin committed on 7 August 2011 you are convicted, you are sentenced to a term of imprisonment which consists of a non parole period being six and a half years, six years, six months to commence on 9 February 2015 and to expire on 8 August 2021. The balance of sentence is four years to expire on 8 August 2025. The total sentence is ten years six months. Fixing that non parole period I have made a finding of 'special circumstances' as I have for the other non parole periods that I am required to impose. You will be eligible for release to parole on 8 August 2021. Take a seat thank you Mr Lim. 126Mr Tan would you mind standing thank you very much. For the offence of supplying not less than a commercial quantity of heroin on 28 July 2011 you are convicted, you are sentenced to a term of imprisonment which consists of a non parole period being five years to commence on 9 August 2011 and to expire on 8 August 2016. The balance of sentence is two and a half years to expire on 8 February 2019, a total sentence of seven and a half years. 127In relation to the two offences of supplying not less than a commercial quantity of methylamphetamine on 28 July and 3 August 2011 you are convicted in relation to each of those offences and in relation to each offence sentenced to a term of imprisonment by way of non parole period of six years to commence on 9 February 2013, to expire on 8 February 2019, the balance of the sentence is three years to expire on 8 February 2022, the total sentence is nine years imprisonment in each case, each sentence to run concurrently. 128In relation to the offence of supplying not less than a large commercial quantity of heroin on 7 August 2011 you are convicted and sentenced to a term of imprisonment which consists of a non parole period of two years and six months to commence on 9 February 2015 and to expire on 8 August 2021. The balance of sentence is four years that will expire on 8 August 2025. The total sentence of imprisonment is ten years and six months. I make a finding of 'special circumstances' in the fixing of that non parole period as with the other non parole periods I am obliged to fix under the legislation. The total sentence to which you are subject on my calculation is fourteen years imprisonment with a ten year non parole period, the same sentence as imposed upon Mr Tan. Take a seat thanks very much. 129HIS HONOUR: Now Madam Crown are there any technical errors or mathematical errors. 130PONTELLO: Your Honour I believe there may have been a slip of the tongue in sentencing Mr Lim with respect to the second of the sentences that your Honour imposed. Your Honour stated the expiry date of the balance of term as 8 February 2012 when your Honour intended I'm sure 8 February 2022. 131HIS HONOUR: Sorry which sentence, the first sentence. 132PONTELLO: The second sentence your Honour imposed was 133HIS HONOUR: 8 February 2022 is what I meant to say yes obviously that is a slip of the tongue, I'm sorry, I've got it written out here, I apologise for that. 134Gentlemen you will be eligible for release to parole respectively on 8 August 2021, whether you are released to parole or not will be a matter for the parole authorities it will depend upon your conduct in custody. When you are released to parole you will be taken to a detention centre under the control of the Department of Immigration and I would expect you to be promptly deported from Australia.