Mum Kit Lock (the offender) appears for sentence after pleading guilty in the Local Court to an offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely ketamine, contrary to ss 11.1(1) and 307.5(1) Criminal Code (Cth).
The maximum penalty for the offence is life imprisonment.
The offender also asks the Court to take into account an offence of dealing in identity information for the purpose of committing a Commonwealth indictable offence contrary to s 372.1(1) Criminal Code (Cth), on a s 16BA Crimes Act 1914 (Cth) schedule, when passing sentence for the principal offence.
[2]
Approach to Sentencing
To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].
The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. The Crown case was a strong one. The offender's plea has saved the need for witnesses to be called at trial, and the utilitarian value of the plea is high. I am satisfied that the offender's plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.
I have had regard to the principles relevant to sentencing serious federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].
For a federal offence the non-parole period or recognisance release period is the minimum period that that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[3]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
On 23 April 2021 Australian Border Force intercepted a consignment in Sydney addressed to Xuyan Li at an address in Waitara (package 129).
Donghao Li (a co-offender) resided at the Waitara address. He was arrested on 20 April 2021 for receiving a different package containing ketamine to that address. Li had earlier provided his address and telephone number to Baiqi Fu (a co-offender) for the purpose of receiving packages. Fu had provided those details to unknown others who arranged for the 129 package to be sent from Belgium.
The package contained a green Bosch Tool Kit case. A white powder, which was later analysed and found to be ketamine, was concealed inside the lining of the case. The weight of the ketamine was 4.394 kg, with a purity of 87.5%, amounting to 3.85kg pure ketamine.
The ketamine was replaced and the parcel was reconstructed. The parcel was then the subject of a controlled delivery.
On 28 April 2021 and 30 April 2021, the offender tracked the package on the Australia Post website.
On 30 April 2021 the offender attended the Hornsby Post Office to collect the package. He presented a driver's licence in the name of Xuyan Li.
The offender took the package to a multi-level car park in Hornsby Shopping Centre where he was arrested after trying to run away from the police.
After he was cautioned, the offender told the police that he was asked by a friend, Jin Mao (which translates to "golden hair") on WeChat, to pick up an identity document from Blacktown and to use it to pick up the package. He was told that he would be paid $5,000. He thought that it might involve fraud, but he did not know what was in the package. He was told if something went wrong that his only crime would be to use a false identity. He threw his wallet on the ground and tried to run away because he did not realise that the person approaching him was a police officer. He described Jin Mao as Malay-Chinese, in his 30's and about a head taller than him with long blonde hair and a tattoo on his arm.
The offender later participated in an interview with the police that was electronically recorded. He told the police that he was introduced to Jin Mao, who was part of a group who helped their big boss to receive parcels. He was told that the parcels contained tobacco and that they were received "very often". He was told that package 129 was meant to be sent to a younger person at an address in Hornsby, but that it could not be delivered because the person had moved out. He believed that he had first been asked to pick up the parcel on 27 April 2021. Jin Mao told the offender the package contained tobacco and that he would be paid $2,000-$3,000. He had met Jin Mao many times including at his house, where people would come and use "ice". He had not picked up packages for Jin Mao before but was told that if it went fine that he could pick up more packages in his area. He was aware that other people were paid $200-$300 for picking up packages. He was told that he would get more for this package because it involved a lot of trouble. He was told to take the package home where Jin Mao would pick it up. The offender could not identify Jin Mao from photographs that he was shown.
[4]
Sentencing Assessment Report
The Court received a Sentencing Assessment Report (SAR) dated 28 July 2022.
The SAR confirmed a number of aspects of the offender's subjective case, which I will not repeat. The offender expressed remorse for his actions and displayed insight into the harm done to the community and his family. He expressed willingness to participate in rehabilitation programs and to perform community service. He was assessed as a medium-low risk of reoffending and as suitable to perform community service work. It was thought that he would benefit from drug and alcohol counselling and positive lifestyle courses.
[5]
The Offender's Case on Sentence
The offender tendered a report of Andrew Wong, psychologist, dated 12 August 2022 and a reference from Peter Ainsworth, the chaplain at Clarence Correctional Centre, dated 29 June 2022.
[6]
The offender's subjective circumstances, prospects of rehabilitation and remorse
The offender is 42 years of age. He has no prior convictions.
The offender was raised in a rural village in Malaysia. His family were poor and they lived with their extended family in the one house. The offender was the eldest of three children.
He finished school in about Year 9 in Malaysia and he struggled with school, particularly in subjects taught in Malay and English. His family and the people in his village communicated in Chinese and he did not learn Malay or English. He left school to find work to support his family. He went to Singapore to complete an apprenticeship as a brickmaker for two to three years and then to Kuala Lumpur to work as a brickmaker.
The offender came to Australia in 2016. He found work as a brickmaker which he undertook until the COVID-19 lockdowns took effect in April 2020. He became unemployed and as a non-citizen did not qualify for support. He experienced financial hardship. At this time he was introduced to a different Malay-Chinese group of people through mutual friends. He took up collecting what he believed to be cigarettes for others from post offices. He did this infrequently before his arrest.
The offender had a partner at the time of his arrest, but they broke up as a result of his incarceration.
Prior to going into custody, the offender did not believe that he had any mental health issues. While in gaol he has seen a psychologist and been treated for an adjustment disorder. He has felt particularly isolated during COVID-19 related lockdowns. The conditions of his imprisonment at those times, which included wearing PPE, being locked in his cell and limited access to sunlight and exercise, left him feeling stressed, depressed and finding it difficult to sleep.
The offender regularly attends religious services in custody, finding it peaceful. The chaplain confirms that he struggles to communicate. He has told the chaplain that he misses his family and that they are more important to him than friends that have misled him.
The offender has found it difficult to express his feelings and needs as a result of his limited English skills. He has experienced bullying, racism and fear for his physical safety.
The offender told the psychologist that he was angry with the people who had lied to him about the packages and that he regretted his involvement in the offence. He was unaware of the content of the packages but reckless. He was financially desperate and participated without giving the consequences too much thought. He understands the danger to the community posed by drugs and expressed regret for his part in causing harm to the community.
The offender wants to return to Malaysia after completing his sentence to assist his family. He is worried about his elderly uncle who is financially dependent on him.
Mr Wong opined that the offender did not meet the diagnostic criteria for any mental disorder at the time of the offending but was struggling financially and circumstantially from the impact of the pandemic. He has developed an adjustment disorder as a result of the conditions in custody and his social isolation arising from his limited English skills,
[7]
Objective Seriousness
The offender's role in the organisation importing drugs through the mail was limited to involvement over two to three days and involved one attendance at the post office to collect a package. The offender tracked the package on the Australia Post website in the days leading up to the collection. The offender was tasked with retrieving a package that was likely to have been compromised, following the arrest of Fu and Li. The offender's involvement was such that he was likely to be identified. I am satisfied that he was offered a significant sum of money for his limited involvement because of the risk of detection by the authorities. The offender acted under direction and was provided with the false identification by another to be in a position to collect the package.
The commercial quantity of ketamine was 1 kg. The amount of the drug involved was significant being 3.85 times the commercial quantity.
The offender was reckless as to the contents of the package, he did not have actual knowledge of what was in it, including that it was drugs. He was not aware of the quantity of the drugs or the identity of the specific drug. The offender's involvement in the organisation was less than that of Fu and Li. I am satisfied by reference to the circumstances of the offender's participation that involved a significant risk of being caught that he was at the very bottom of the hierarchy of the organisation.
The offender committed the offence for financial gain.
I have taken into account the maximum penalty for the offence.
[8]
Deterrence
General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.
There is a need for specific deterrence, but it is significantly reduced for the reasons that follow. The offender has accepted responsibility for his offending conduct and expressed remorse. He intends to go back to his family in Malaysia when he is released from custody. He participated in the offence for financial gain when he was experiencing financial hardship as a result of the COVID-19 pandemic. I am satisfied that the offender presents a very low risk of re-offending.
[9]
Other Matters
The offender did not have a record of prior convictions and was a person of good character.
The offender has expressed contrition to the psychologist and to the prison chaplain. I am satisfied that he has accepted responsibility for his actions and that his contrition is genuine. His plea of guilty also indicates remorse.
The offender has good prospects of rehabilitation. The offender got to age 41 before committing any offence. I am satisfied that he understands the reasons that led to the offence and that he is committed to avoiding a repeat of the circumstances that gave rise to the offence. He does not have any mental condition or addiction issues that predispose him to recidivism. He has strong pro-social support from his family in Malaysia, who he will return to on his release. He demonstrated good behaviour in custody.
The offender co-operated with the authorities. The offender participated in an interview with the police where he made full and frank admissions as to his role in the offence.
The offender has suffered social isolation in custody as a result of the COVID-19 pandemic and his limited English skills. He has also suffered intimidation and racism in custody. I am satisfied that the conditions of his incarceration have been difficult for him and I have taken that into account in arriving at the appropriate non-parole period.
The offender's incarceration has had a negative impact on his elderly uncle who relies on the offender for financial support.
I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise.
I have had regard to the sentences that I will impose on Donghao Li and Baiqi Fu for their different roles in the same organisation.
[10]
Penalty
I have considered s 17A Crimes Act 1914 (Cth) and I am satisfied having considered all other available sentences that no other sentence other than a sentence of imprisonment is appropriate in all the circumstances of this case, for the reasons given in this judgment.
The offender is convicted.
The offender is sentenced to imprisonment for 3 years and 3 months to date from 30 April 2021 and expire on 29 July 2024. I fix a non-parole period of 20 months that will expire on 29 December 2022.
[11]
Explanation of Sentence
I am obliged to explain to the offender the effect of the orders I have made.
Mum Kit Lock the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 20 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 29 December 2022.
It will be a matter for the Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 29 December 2022. If you are released on that day, you will remain on parole for a further period of 19 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.
[12]
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Decision last updated: 30 August 2022