HIS HONOUR: Hin Lok Mok today appears for sentence in relation to an offence to which he pleaded guilty at the Local Court, which is an offence of knowingly take part in an attempt to manufacture or produce a prohibited drug. Specifically it alleges that the offender between 18 January 2016 and 25 January 2016 at Campsie did knowingly attempt to take part in the manufacture of an amount of a prohibited drug to wit 88.5 kilograms of methylamphetamine, which was not less than the large commercial quantity applicable to that prohibited drug.
This is an offence contrary to section 24(2) Drug Misuse and Trafficking Act 1985, a provision that is to be considered with section 33 of the same Act. The maximum penalty for which there has been some discussion, shortly before I commenced my remarks on sentence is life imprisonment and/or a fine of 5,000 penalty units. The standard non-parole period for this offence is 15 years imprisonment, according to the Table annexed to section 54D Crime (Sentencing Procedure) Act 1999.
The offender has been in custody since the date of his arrest 25 January 2016 and I will backdate his sentence to that date to take into account all the time spent in custody referable to this offence.
The offender pleaded guilty at the Local Court on 7 February 2017. True it is that he pleaded guilty at the Local Court in excess of a year after he was arrested but as he was committed for sentence I am prepared to conclude that he entered his plea of guilty at the first reasonable opportunity. There is a "co-offender" called Hok Man Tsang. I am informed that he had a trial listed for 19 August 2017 but I understand he has not been sentenced yet.
The co-accused Ng to whom Mr Coyne refers in his submissions is not referred to in your cover sheet, has that person been dealt with in the courts or not?
SWEENEY: No she hasn't your Honour, that matter is listed for trial your Honour in February next year.
HIS HONOUR: February next year, I may have been told that but I don't have a transcript of the previous proceedings. Thank you for that. I understood that I would have been told if any of the co-accused had been dealt with.
The co-accused Ng who was arrested at the same time as the offender is listed for trial in February next year. If I have not already said it, bearing in mind I just interrupted my remarks the offender will receive a discount of 25% upon the otherwise appropriate sentence to recognise the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of the Court of Criminal Appeal in relation to these matter of Thomson & Houlton from 1999.
The facts of the matter I will summarise although they are extensive and helpful. Police in late 2015 in an investigation obviously arising from previous inquiries located very large quantities of methylamphetamine that had been imported into Australia and lodged into a number of self-storage facilities that had been rented by Mr Tsang (to whom I earlier referred). The facts available to me reveal that relevant storage units that contain methylamphetamine when searched by police on 24 and 30 December 2015 were located at Miranda, Padstow, Hurstville and Rockdale. When searched just before Christmas 2015, at Miranda 3,332 bottles were found containing 333 litres of methylamphetamine, at Padstow 2,000 bottles were found which contained 200 litres of methylamphetamine.
On 30 December 2015 search warrants were executed in respect of storage units at Hurstville and Rockdale to which I referred. At the Hurstville location were found bottles containing 200 litres of methylamphetamine and at the Rockdale location was found equipment available for the purpose of manufacture of either methylamphetamine or the crystalline version of methylamphetamine and also was found two kilograms of methylamphetamine that was in the process of being converted from liquid to crystalline form.
Mr Tsang was it would seem under police surveillance at the relevant time. He was a gentleman who had travelled apparently to Australia on a number of occasions prior to late 2015. The offender travelled to Australia landing in Brisbane in company with a person called Sou Ping Ng. The offender arrived in Australia on 2 January 2016 and as I understand the matter was travelling from Brisbane with some type of tour group, presumably to make his arrival in Australia as anonymous as possible. The offender arrived in Sydney on 9 January 2016 with Ng in the tour group.
The police in the course of their searches of the storage units had substituted for the methylamphetamine various inert substances that were later, it would seem, provided to the offender by Tsang in the belief that he was providing him with the raw materials for the conversion of the liquid methylamphetamine into crystalline form.
On 16 January 2016 Tsang went to Rockdale and removed a number of items which he took to premises at Hurstville. It is said in the facts that, "on the Crown case this was manufacturing equipment". The statement of facts has extracts from telephone intercepts presumably involving conversations in the Chinese language in which either Mr Tsang or the offender over a period of time between 17 January 2016 and 25 January 2016 discussed matters relating to the manufacture of methylamphetamine with an unknown person who was a man contacted in China.
The first such extract available in the facts is a translated version of a conversation between Tsang and the 'Chinese connection' which is clearly not a reference to the offender, where Tsang advised on 17 January that "Chang Mo was moving 'there' the next day". Chang Mo is the offender Mok and the reference is to the fact that on the following day 18 January 2016 Mr Mok entered into a lease for the occupation of premises at unit 19/45 South Parade, Campsie which I will herein after refer to as the 'Campsie premises'.
The statement of facts has a record of discussions that occurred on 18 January and 22 January 2016 between Tsang and the person in China that clearly were concerned with the forthcoming process of "manufacture" which the offender attempted in the period of time pleaded in the Court attendance notice. The statement of facts refers to Tsang removing items particularly from the Rockdale premises that were items presumably concerned to assist in the manufacture of a relevant prohibited drug and also attendance by Tsang to the storage unit at Hurstville in which he took five Kennard's storage boxes which the police had examined on 30 December 2015, which contained 200/100 millilitre bottles, which as I mentioned earlier contained a total of 200 litres of methylamphetamine.
The man Tsang on the same date 23 January 2016 took various items to the premises at Campsie Tsang and the offender Mok were observed removing bags and boxes from Tsang's car and taking them to the unit. Five of the boxes were taken into the unit and five boxes were returned to Hurstville.
The facts state that that evening the offender removed and cooked liquid in the unit at Campsie in an attempt to convert the liquid to a crystalline substance and Ng was present throughout the evening. Mok the offender spoke on 24 January 2017 to an unknown man who called from China and the offender indicated, in the extract of the conversation set out in the facts, that he was having difficulty in the manufacturing process. Clearly this was so because what he was trying to convert into crystalline methylamphetamine was not capable of doing that.
The man in China apparently rang Tsang shortly afterwards to discuss the difficulties. In fact he spoke to him twice that evening and after those conversations the offender was rung by the "unknown man" from China and he was questioned about the circumstances in which the process did not work.
Tsang was spoken to after that conversation and then minutes later, all these conversations occurring on the evening of 24 January, the offender was again rung by the man from China and further questions were asked of the offender about the process which had been clearly unsuccessful and known to be so by the offender. In fact the following day 25 January 2016 the offender himself called the "unknown man" in China and had further discussions about the process of manufacture. Later that same afternoon approximately an hour after the conversation between the offender and the man in China police executed a search warrant at the Campsie premises and both Ng and the offender were arrested. Inside a bedroom in the unit police located a large quantity of liquid that Mr Mok believed to be methylamphetamine, this was in fact the inert substance that had been earlier substituted, a large amount of equipment that is used in converting methylamphetamine to crystalline form was located in the bedroom. The bulk of the substituted material was located in small 100 millilitre bottles stored in two suitcases and a soft bag. The bags were visible on the floor and when the soft bag was unzipped there were 100 millilitre bottles clearly visible.
On a shelf in the bedroom wardrobe was a glass jar containing a quantity of inert liquid. In a plastic box in the lounge room just outside the door to Ms Ng's bedroom were a large number of opened 100 millilitre empty bottles and a pair of plastic gloves. In the kitchen there was a quantity of crystalline powder, on the kitchen bench-top, this was also an inert substance.
Mr Tsang was arrested the same evening, a search warrant was executed at his premises at Hurstville and he was found in possession of a sum of cash amounting to $12,500 in a satchel and $4,000 in a suitcase and a small amount of crystalline methylamphetamine was located weighing 200 grams.
The offender has admitted in the context of what was found at his premises to attempting to manufacture the quantity of methylamphetamine as it is described in the Court attendance notice of 88.5 kilograms. I am not assisted by how that calculation was made.
The offender has no prior criminal convictions in New South Wales or apparently overseas. He was born on 28 December 1978. Thus, on my calculation, will turn 40 at the end of next year. He would have been on my calculation 37 at the time of the commission of the offence with which I am concerned. He gave an interview to police which is electronically recorded. He made some partial admissions but made no real admissions of guilt and certainly sought to, if not mislead the police, deflect suspicion upon himself. In my view the account he gave of not knowing particular people with whom he had been in contact was untruthful as the facts make clear.
It is clear that he must have known who Mr Tsang was. He must have known his name and the fact that he was not only contacted by somebody from China but was able to contact that person himself, reflects that he must have had knowledge of who that person was and I would have thought, where that person was. Although he did make some admissions about his possession of various items that were relevant to the manufacture in the circumstances of his arrival in Australia. It really would not have mattered very much in proof of his guilt because the proof of his guilt in the context of the telephone intercepts and the evidence found through police investigations was completely overwhelming.
The offender did not give evidence before me but produced through his counsel a psychological report. I note the Crown has not had the opportunity to test the history given by the offender. So far as the history given by the offender about his personal circumstances, there is nothing particularly controversial about it as it relates to this sentencing procedure because there is nothing in the report to reflect upon an existing health condition, either mental or physical that would warrant a diminution to be given to the weight for general deterrence, personal deterrence and the like that ordinarily would be required and will be required in this sentencing exercise.
As I understand his history the offender grew up in Hong Kong where he was born. He apparently had an unhappy childhood in a range of ways and he left school when he was 15. He did a traineeship in air-conditioning installation and has had various labouring jobs. So in the context of the offender not being tested in relation to his history it is a matter where one would have to approach some of the history with some circumspection. But as I said there is little in the way of significance in the report.
Of course in the history it should be noted, even in its own terms, there is absolutely nothing said by the offender in relation to what is self-evident from the facts, that the offender must have had some skills in relation to the manufacture of crystal-methylamphetamine. This is because on the facts available to this Court it is clear and established beyond reasonable doubt that the offender had come to Australia, notwithstanding he initially joined a tour group, for the purpose of the manufacture of crystal-methylamphetamine. He had been "specially imported" for that task.
Mr Tsang was the organiser in Australia, as the facts make clear at least so far as the facts presented in this case, and Mr Tsang had set up the arrangements whereby pure methylamphetamine or at least liquid methylamphetamine of a percentage purity I am not sure, would be available to enable the process of crystal-methylamphetamine production to occur on Australian soil.
Whether the offender however was to involve himself in a process of manufacture beyond the one that was interrupted by the police, or was unsuccessful before the police arrested the offender, clearly I am unable to say. Whether there was some other process of manufacturing going on in Mr Tsang's apartment or in some other location I am unable to say although I do note, although it is not evidence particularly relevant to this offender, but as the facts reveal Mr Tsang had control of a rental storage area at Rockdale which had two kilograms of methylamphetamine that was in the process of being converted to crystalline form.
It may well have been that Mr Tsang himself had some skills in relation to this process of manufacture. Clearly the evidence from the telephone intercepts suggest that he had knowledge of the matters of which Mr Mok spoke and of which the man from China spoke when discussing the failure of the process of manufacture that had occurred up until 24 January.
Coming back to the psychologist's report the psychologist suggests that the offender was, from the viewpoint of the psychologist "in hindsight" suffering from post-traumatic stress disorder at the time after he had left school as a result of his family experiences which made him vulnerable to bullying at school about which he complains. There is some information provided to the Court in relation to the stress created by bullying at school and the stress upon the people and consequences for people suffering some form of post-traumatic stress disorder. The relevance of this condition to matters germane to the offender's circumstances is that the offender told the psychologist that it was, as a consequence of his early life experiences, that he turned to drug use to make himself feel better. That he incurred debts in relation to his drug use and that ultimately the debts in relation to his drug use:
"became too large for him to pay off and he was offered the opportunity to come to Australia to set up a drug operation and this would wipe the debt".
The report says that he was:
"anxious about doing this but could see no way out of his predicament with the likely scenario of his demise or his family being hurt if he did not pay the debt."
If that aspect of the history, referring to what is sometimes described in sentenced "non-exculpatory duress", that is duress that is relevant to the sentencing exercise not relevant to the issue of criminal liability, then it is an account that I cannot rely upon nor regard as truthful. It is a matter that is insufficient in the form in which it is presented to the Court to provide a basis for concluding that a relevant mitigating factor was that the offender acted "non-exculpatory duress". The account is entirely unexaminable.
I do not need to go into the particular judgment in chapter and verse, but the judgment of Johnson J, in a case of Ticknius, discussed in some detail the relevant considerations that arise when the issue of non-exculpatory duress is sought to be relied upon. It must be said in the discussion that I had with learned counsel for the offender it was not pressed that it was a matter that I could find in favour of the offender in this particular sentencing exercise in any event. But Johnson J noted amongst other things that such claims often made must be approached with considerable circumspection, bearing in mind that they are made about events that usually are alleged to have occurred overseas with no capacity for the prosecution, for example, to undertake any independent checking. Usually, as is the case here, there is no independent evidence to support the claim. Furthermore what history the offender has given the psychologist about the matter that he was offered the opportunity to come to Australia to "set up a drug operation" is not in accordance with the facts. The drug manufacture operation was actually set up, as I would understand it, by Mr Tsang by what I would regard as well planned means. That is by getting the offender and Ms Ng to join a tour group the offender entered in Australia to avoid suspicion in order to assist the drug manufacture process in a particular respect, that is by bringing his expertise to bear to convert liquid methylamphetamine to crystal-methylamphetamine.
Now of course I am no expert on the manufacture of methylamphetamine, but I certainly have done enough trials relating to such matters to understand that there is a degree of expertise and knowledge required in order to successfully convert raw pre-cursors into methylamphetamine and also to convert methylamphetamine into crystalline form I bear in mind as the facts reveal the offender spoke knowingly to Tsang and to the man in China about the fact that the process that he had undertaken had not been successful and there was, it would seem to me, equal discussion between the offender and the man in China, particularly about what might be done to rectify the situation or why the situation had arisen. He gives no explanation for his acquisition of skill in this area.
The fact that the offender asserts that he was a user of drugs is something that I do not discount. It may well be that he, because he is a user of a drug, that he is capable of "manufacturing" it at least to the extent that he was involved in this particular process. But that would seem to be little qualification by itself. I note in relation to the offender's childhood experiences that the psychologist on two occasions refers to the conclusion he reaches about the existence of post-traumatic stress disorder as being "concluded in hindsight". He states in the report that there is no evidence of the offender receiving any treatment in relation to drug usage or dependency. There is no evidence of any treatment of the offender in the past in respect of any mental health issues.
The psychologist's opinion so far as it goes reflecting upon the offender's mental state at the relevant time is very much dependent, it would seem to me, upon the truthfulness of the account given by the offender. Not just as to the circumstances of his childhood but the relationship of that history to the offender's use of drugs and then the circumstances in which the offender found himself, he claimed, in debt.
Of course I could not be satisfied on balance that that account in its entirety is true. There are suggestions made for the offender's assistance on his return to the community, including suggestions of a need for cognitive behaviour therapy, psycho-education in relation to negative thinking and mindfulness techniques, matters all addressed as I would understand it to the issue of his drug usage and the effects of the claim of trauma to which reference is made. But I cannot on the basis of all the material available to me and the circumstances in which it arises, conclude that there is material within the report that would warrant a diminution of weight to be given to general deterrence or any relevant weight to be given to personal deterrence.
His counsel produced some statistics which show a range of penalties imposed in respect of 19 cases brought pursuant to section 24(2), where the quantity of the "amphetamines" was not less than the large commercial quantity. Of course there has been much criticism of the use to be had of those statistics, the decision of the High Court in Hili v R (2010) 244 CLR 520 and in Pham (2015) 256 CLR 550 reflected upon the limitations of the utility of statistics. In fact the Judicial Commission of New South Wales, in a recent 'Bulletin' prepared for the benefit of Judicial Officers, has noted that an additional enhancement of the sentencing statistics held by the Commission is being made to try and address some of the matters that have been referred to in the High Court.
But that having been said the Court of Criminal Appeal on a number of occasions has noted the limitations of statistics. In 1998 Spigelman CJ, who was then new to the position, reflected upon the limitations of statistics in dealing with matters on appeal in the decision of Bloomfield. More recently decisions such as Knight v R [2015] NSWCCA 222, reflected upon the limitations of this utility. It seems to me based upon the statistics provided in this case they provide some indication of the range of penalties that have been imposed. But, of course, there are many variables that arise. Particularly issues relating to the role of the offender, the benefit to be received by the offender, the position the offender had in any particular hierarchy that can be identified and of course, most importantly the quantity of the drug in question.
The quantity of the drug attempted to be manufactured in this particular matter is 88.5 kilograms which is very substantially greater than the minimum quantity that is required to be manufactured in order to commit an offence involving the manufacture or attempted manufacture of a large commercial quantity of the drug methylamphetamine.
With regard to the matter I had helpful oral submissions from the parties and written submissions from the offender's learned counsel. In relation to the written submissions of the defence provided to me I note the observation that Mr Mok's role was a relevant matter for determining the objective seriousness of the offending. He was not the principal in this operation, which I accept. He was not involved in sourcing the precursors. Such was the "sophistication" of the operation that obviously the methylamphetamine had been imported into Australia without detection, at least as far as I am aware, or if it was detected it was permitted to be stored so Mr Tsang could have access to it. Mr Tsang was the person who had obviously organised the equipment for manufacture and any relevant other precursors for the manufacturing process. He also provided the equipment for the manufacture of the drugs. I accept the particular submission that the offender had been recruited as the methylamphetamine "cook". Although clearly as the "cook" the offender had a vital role in the proposed process of manufacture.
It is said that the offender did not know about any intended quantity to be manufactured. Clearly I could not be satisfied beyond reasonable doubt of an intention on his part to be involved in a process of manufacture of a quantity greater than that particularised in the indictment, I can only deal with the matter on the basis of the facts available to me. Clearly the police had interrupted the operation. But the extent to which the offender was to remain in Australia I do not know and certainly the offender did not assist me with the interview that he gave to the police in which he sought to mislead the police in respect of his involvement in this matter.
The offender is described by his counsel as a "unsophisticated person", a matter about which I can make no conclusion whatsoever either on the balance of probabilities in his favour, if it be a favourable matter, or beyond reasonable doubt if it be a matter that is required to be proven by the Crown that he is a "sophisticated person". That being said, he certainly was familiar with the process of manufacture, being left by himself with Ms Ng to undertake it. Reference is made that he was a drug user. It is submitted in relation to the matter that he possess "no special skills" which were "not possessed by others involved in this manufacture". The facts are largely ignorant in this regard and it would be a matter of speculation to conclude that he was the only person who had skills. I can only deal with the matter on the basis of what is proven against him beyond reasonable doubt as the facts made clear.
The offender's involvement in the manufacture is said to have deflected the risk of detection to himself as opposed to others. Well clearly on the basis of the facts available to me Mr Mok's detection was already foreshadowed of course by the fact that Mr Tsang was under investigation. There is no suggestion of the material available to me that Mr Mok was held out by anybody else as a sort of sacrificial pigeon. It is not like a courier who is intercepted when police are well aware of a particular importing operation. The courier is clearly exposed. I would expect on the facts available to me that Mr Tsang and Mr Mok and Ms Ng, to the extent that she was involved in this matter, were completely unaware of the fact that they were subject of investigation at the relevant time. He was said to be "lowest in the hierarchy" and "always took instructions from those higher in the hierarchy". I am prepared, on the basis of the evidence available to me, to conclude that he was to be seen at a lower level than Mr Tsang. Quite clearly and obviously people in China who might be regarded as the architects of this criminal enterprise. With the sentencing of offenders involved in drug importation matters, I am required to sentence him for what he did, rather than speculate about where he stood in the hierarchy which is largely unknown to me, I am prepared to accept that he was taking instruction from Mr Tsang and a man in China but it is also worthwhile to mention that insofar as the process of manufacture was concerned, and that is the principal matter with which I am concerned rather than the organisation that funded this affair, the offender was able to discuss matters, it seems, on equal footing with those that had an interest in the matter.
His counsel submitted in the context of consideration of the standard non-parole period that I should find this offence as below the mid-range. This turns me to the submissions of the Crown in relation to this aspect of the matter because it is a very important matter in any sentencing exercise as to what is the particular role of the offender.
The Crown's submissions to me were that I should regard the role of the offender as being above the mid-range, or middle range, of objective seriousness, having regard to the quantity of the drug involved and the role of the offender, the importance of the offender in the actual process of manufacture. I have come to the conclusion in the context of accepting that the middle range of objective seriousness is not necessarily a "narrow band" that the offender's objective criminality assessed by reference to section 54A of the Act, can be seen as at the lower level of the middle range of objective seriousness. But slightly above the cusp of that band as it has been sometimes described. The factors that I determine relevant to assessing this matter are as follows:
Firstly the offender was, it would be apparent from the facts, employed as "the cook" not of the methylamphetamine itself because that was already in existence when the police seized it as a prohibited drug, but for the purpose of converting the imported methylamphetamine to that of crystalline-methylamphetamine. He had come from Hong Kong to supervise and undertake the process but at the direction of a "local manager" Mr Tsang with the input of those in China with whom he had contact. He consulted with and took direction from a person in China who clearly had a supervisory role over the offender and Mr Tsang.
The offender did not finance the operation. The offender was to be regarded on the facts available to me as an "employee". He did not set up the manufacturing process insofar as gathering and bringing materials to the apartment at Campsie. Although when the materials were brought to him, given what I would take to be his expertise in respect that he was involved he would have been required to put the relevant components together at the Campsie flat to enable the process to begin. He had independence in performing this task but was clearly answerable to Tsang and the Chinese person to whom I referred.
I cannot conclude beyond reasonable doubt that he was to profit directly from the operation, but clearly he was to receive some sort of financial benefit, the extent of which I am unable to conclude.
He had a colleague with him Ms Ng who was available to assist. Whether she was on equal footing with the offender or subject to his direction I am unable to say, I note the facts reveal that when the man from China rang at one point she passed the mobile phone to Mr Mok for him to conduct the relevant conversation about the process of manufacture. But it would appear that her presence in the apartment was for a purpose not entirely explained in the facts.
Ultimately the prisoner's role was that of an employee. But with a significant or vital role in a particular aspect of the process of manufacture. The quantity to be manufactured was a very substantial quantity by reference to what constitutes the minimum quantity to establish a large commercial quantity of methylamphetamine. I note in terms of the quantity that it was substantially greater than many of the comparative cases to which I was referred and it was potentially very valuable.
I note the process was unsuccessful not from any lack of endeavour on the part of the prisoner but because of the police investigation. This is an aspect of the case that was the subject of particular submission by both the Crown and the defence and I will refer to some legal decisions that deal with this matter in a moment.
Quantity of course is a very important consideration in determining where a particular offence fits within the range of objective seriousness. The quantity attempted to be manufactured whilst very, very substantial and considerably greater than the minimum quantity, is not the greatest quantity that could be manufactured in a particular individual process of manufacture. I also note that other matters important in determining the objective seriousness of offending of this type is the particular role of the offender where the person's position stood in relation to other people who can be identified by reference to any particular "organisation" or "hierarchy".
Another relevant factor is what can be established as far as offender's "financial benefit". Whether the person was substantially to profit or was to benefit by a payment of "wages", which if itself must be regarded as some profit. But there are other features of manufacture of prohibited drugs that are relevant to the assessment of the objective seriousness which do not arise here.
People can be involved in the process of manufacture who themselves are going to be involved in the distribution of the drugs. There is no evidence that the offender had any role in that regard. Whether Mr Tsang was to be involved in that or whether some other person was waiting in the wings to take over that role to disseminate the drugs to the community, I do not know.
I bear in mind by reference to section 21A(2) that it must be said that the Crown has established beyond reasonable doubt in all the circumstances that the offender was involved in an organised criminal activity. Obviously it was well-planned. But planning would be an inherent quality of any manufacturing of prohibited drugs of this type and in any event much the planning of the matter would have fallen to others not to the offender himself.
It is in these circumstances weighing up all those matters that I have assessed where the offence sits in the context of the assessment of the matter by reference to section 54A(2) of the Act. The standard non-parole period represents the non-parole period for an offence on the Table of the Act taking into account only the objective factors affecting the relative seriousness of the offence that render the offence "in the middle of the range of seriousness", section 54B(2) of the Act provides that the standard non-parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence of an offender. This now existing statutory provision reflects ultimately the findings made in the decision of Muldrock v R (2011) 244 CLR 120, particular at [19] - [30].
As has been said in another context the standard non-parole period in all the circumstances provides "a guidepost". It is clear, following upon Muldrock and the terms of the sections to which I referred, that these matters are to be taken into account as required from the decision of the High Court of Markarian [2005] HCA 25, particular for example the observations of McHugh J at [51] of judgment.
Returning if I may to the matters that arise out of the submissions of counsel for the offender and the matters that are identified by Counsel for the Crown, reference is made to some decisions as "comparative" cases to which I might have regard. Those cases include S (2000)111 A Crim R 225, Pedavoli (2002) 128 A Crim R 137, by the defence. There is a short summary provided in relation to the facts of those matters and I did have regard to them. I note in relation to those two matters referred to in the written submissions of the offender that they are sentences that pre-date the creation of a standard non-parole period in respect of the particular offence.
With regard to other judgments that were brought to my attention I particularly note the decision of DW [2012] NSWCCA 66 and the decision of AB [2013] NSWCCA 273. In the decision of DW, Baston JA, in his judgment referred to one seemingly comparable case, that is the decision of El-Azzi [2004] NSWCCA 455. The judgment of R S Hulme J in that matter contains much more extensive reference to a number of supposedly "comparative cases" in respect of the issue of manufacture of prohibited drugs or attempted manufacture of prohibited drugs at [119] - [128].
I do not propose to detail all the cases that his Honour referred to, but some of those include Thompson from 1999 and Spaliviero 1993. All judgments of course that pre-date standard non-parole periods. Then more latterly the decision of OPA [2004]NSWCCA 464, the decision of S, to which I believe I was referred by counsel for the offender and the decision of AD (2008) 191 A Crim R 409 which post-dates the introduction of standard non-parole periods.
Comparative cases of course provide some assistance to a Court in giving indication of the range of penalties appropriate for particular offences. But again, as was mentioned in the High Court decision of Hili to which I referred, one must be cautious in using comparative cases. The facts objectively and subjectively will vary considerably, notwithstanding people have been sentenced in relation to the same provision.
The decision of AB was a matter involving appeals against sentences imposed in relation to two groups of offences. I need not cite the exact facts but the particulars of the sentences and the offending as set out in that judgment at [3]-[40] I note in relation to AB that the relevant offence if I might call it that bearing in mind AB was sentence for a range of offences, was an offence concerned with the manufacture or the process of manufacture of MDA, a slightly different drug, had ascribed to it a discount of 50% for assistance and the plea of guilty. I also note AB whose appeal was dismissed I hasten to say, committed that offence whilst on bail in relation to earlier offences that involved, amongst other things, an explosion that caused him to be seriously injured. A relevant matter to that sentencing process. The offender committed the offence of involvement in the process of manufacture whilst on bail in relation to that earlier offending, but having said that as I understand it there was no finding that AB was involved in any organised crime network. Particularly AB had not come to Australia to commit a crime against our community.
One matter that was specifically raised in the course of submissions through the parties was the fact that the police operation led to the fact that any drugs that were sought to be manufactured could not be disseminated. The process of manufacture was incapable of production of the relevant prohibited drug and the methylamphetamine that had apparently been imported into Australia had been seized by the police. R S Hulme J in DW discusses these matters at [107] - [117] Hulme J came to the conclusion on considering the various authorities that, from [117]:
"I have no difficulty in accepting that absent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated in the community in no way mitigates the subject criminality of the offender. However if the involvement of the authorities prevents the transaction from resulting in harm it is illogical not to afford that fact appropriate weight, just as in the converse situation one would take into account of any damage that was a consequence of the offending. Insofar as the authorities to which I have referred suggest the contrary, or that the significance of the absence of dissemination of the community is slight or "very minor" they are in my view wrong."
Earlier in his judgment he referred to a number of authorities where various senior Judges particularly Latham J, Rothman J and Johnson J in a number of authorities referred to the view to be taken of the fact that by reason of police intervention the relevant prohibited drug either in the context of supply or in the process of manufacture had not been disseminated.
Latham J held, for example, in the decision of Gao, [2007] NSWCCA 343, that in the context of the supply being interrupted by an undercover operative and thus not finding their way into the community, the "objective gravity of the offences was diminished accordingly, albeit slightly".
In the same judgment Rothman J said, at [47] - [48], where there is an undercover operation that is beneficial to the community in that the drugs are not able to be used, the benefit is as a result of the actions of law enforcement agencies not the result of any intention or action of the person charged. There are no victims to such dissemination and that may be a factor like others, that a sentencing Judge takes into account. But for his own part his Honour thought "I would not generally regard it as 'significant'".
Johnson J's view in the judgment of Hristovski [2010] NSWCCA 129, particularly at [41], was that the fact the drugs would not be disseminated into the community because of police activity "does not materially assist the applicant".
The applicant in that matter "intended that the drugs would be disseminated into the community and it was no act that the applicant stood in the way of such dissemination".
There appears to be three positions identified at least in that judgment of DW. I would take the view expressed by Latham J and Rothman J, expressed in different ways of course, that in this particular matter there is some diminution of the objective gravity of the offending by reason of the fact that there has been no harm caused, albeit by the work of the police, not through any intention of the prisoner and that matter is not to be regarded as "significant". Thus the matter operates slightly in favour of the offender but not significantly.
I should in fairness to the learned Crown's position in assessing the objective gravity of the offender note that apart from submitting the offending was above the mid-range, particular by reference to the quantity, the Crown noted that it was a well organised criminal enterprise which I accept, although not organised by Mr Mok.
The Crown accepted that the offender was acting as a "cook" but that he operated with some independence and I accept that that is so, as I have already outlined. The Crown's particular submission was that the fact that the drugs were not manufactured and thus were not capable of causing harm to the community did not reduce the objective seriousness of the offending. As I said the matter is not "significant matter". The Crown also made submissions about non-exculpatory duress to which I have earlier made reference.
Turning to the subjective matters that arise in this case, noting what has been put by his learned Counsel. Firstly, if the offender be a drug user it is not a matter of mitigation in this particular matter and of course drug use usually is not a matter of mitigation although it is relevant usually in sentencing in a range of ways, for example as described by Wood J in the guideline judgment of Henry from 1998, particularly at [273] of that judgment. I accept however by reference to section 21A(3) of the Act that the offender did not have any record of previous convictions. Whilst he obviously had some experience as a methylamphetamine cook before he arrived in Australia, by reason of the fact that he had no prior convictions and had some history of industry I am prepared to accept that he was to a limited extent a person of "good character".
I am unable to conclude whether he is likely to reoffend because I really do not know enough about his future in Hong Kong and the extent to which he is imbued with the qualities required of people who are members of organised criminal activity or enterprises.
So far as his prospects of rehabilitation I am not prepared to conclude that he has good prospects of rehabilitation. Again I do not know enough about his circumstances to be able to make a prediction about that, although I do accept that this being his first term of imprisonment will be a salutary experience for him.
The offender has pleaded guilty which is a fact to be acknowledged as a mitigating factor, although he receives a discrete discount for that. He has expressed remorse through the psychologist's report. He has not given evidence, I can understand a man in his position being reluctant to give evidence, there are matters of course, well-known to the Court that would constrain somebody in the offender's position from coming to the witness box, a fear of having to disclose matters within his knowledge, may operate to prevent him taking that course.
I am prepared, although the evidence might on one view of it be seen as tenuous, to conclude that there is remorse reflected in the plea and his acknowledgement of remorse through the psychologist which is I accept limited.
Of course in sentencing any offender pursuant to this particular provision with a life sentence maximum penalty, by reference to the purposes of sentencing under section 3A as I have mentioned, particular weight is required to be given to general and personal deterrence. The offender is to be adequately punished, he is to be made accountable for his conduct, he is to be denounced for his conduct as the section requires. I am also required under the section to promote his rehabilitation, although his rehabilitation of course will occur offshore. I am required to fix a sentence that involves consideration of a non-parole period as if, bearing in mind it turns out to be a fiction, he was a person who would be subject to parole supervision in New South Wales, which of course will not occur.
I have concluded in the context of him serving a term of imprisonment for the first time, requiring in my view some professional assistance to adjust to community living and to assist him in relation to his drug usage, that there are 'special circumstances' pursuant to s.44 of the Act and there should be some adjustment of the relationship of the non-parole period to the balance of sentence to reflect those special circumstances.
I have taken into account and I accept that because of his limited English language his isolation from his family, the fact that he is a foreign national, that there will be aspects of his custody which will make his time in prison in Australia more difficult than they may be for people who have family connections in Australia or greater support than the offender has.
Whether the offender is receiving any support from family members or friends in Hong Kong is not known to me. But I do accept that the offender has language difficulties. He is not conversant in the English language particularly and will find his time in custody difficult. Particularly in the context of being separated from persons who, if they lived locally would be able to visit him of course. I accept the fact that by the time he finishes his sentence in Australia, his skills in English will be much improved through his incarceration.
The sentencing of the offender requires the Court to ensure that he is prevented from committing further offences. It is highly unlikely that the offender will be committing further offences in Australia and of course the fact that he has been arrested and convicted in Australia will make it quite difficult for him to travel from his native Hong Kong in the future.
There is one aspect of his prior good character that needs to be taken into account, or at least the absence of convictions, and that is that it was the absence of convictions that would have permitted him to come into Australia in the first place, to be available to involve himself in the process of manufacture, that aspect of the matter has not been lost to me.
Thus, in all the circumstances of the matter taking into account all the evidence and having regard to the submissions of the parties I have concluded that the starting point of any sentence I impose should be that of 12 years with a discount for the utilitarian benefit of the plea of guilty. The sentence to be imposed in respect of this matter should be nine years imprisonment. Given the finding of special circumstances I fix a non-parole period of six years.
Could you stand up please Mr Mok.
In relation to the matter to which you pleaded guilty you are convicted. You are sentenced to a term of six years imprisonment to be served by way of a non-parole period, that will commence on 25 January 2016 and expire on 24 January 2022. In respect of that sentence I fix a balance of sentence of three years, that will expire on 24 January 2025.
You can take a seat thank you. Yes madam Crown are there matters.
SWEENEY: Nothing your Honour.
HIS HONOUR: Mr Coyle?
COYLE: Nothing your Honour.
HIS HONOUR: Thank you, madam interpreter can you ask the prisoner if he understands the sentence I have imposed?
INTERPRETER: Yes.
HIS HONOUR: You will be eligible for release to parole as I told you at the beginning on 24 January 2022, whether you are released to parole will depend upon the decision of the parole authority, your behaviour in custody and other matters. Ultimately you will be deported back to Hong Kong.
Thank you madam interpreter for your assistance, you are excused thank you. You are excused Mr Mok. Thank you gentlemen very much I wish you both a very good weekend.
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Decision last updated: 13 November 2017