R v Qiang James Chen

The Facts

1. At the sentence hearing Mr Lloyd QC informed the court that he only disputed one factual matter contained within MFI 1, namely whether it was the offender whom dealt with Le Feng Australia as I will describe in a moment, using as mobile phone ending in 588. Late last week whilst preparing these remarks, I sought through my Associate some further assistance from the parties as to this issue. In response the Crown supplied some further written submissions which I marked as MFI 6. Mr Lloyd QC was overseas when these were prepared and has only returned today but having seen them and sought instructions from the offender he did not seek an adjournment in relation to this aspect of the matter and also chose not to make any additional submissions thereon. Having considered these additional submissions and re-read the transcript as to this point I am satisfied beyond reasonable doubt that it was the offender who did so and for the reasons set out in MFI 6. In this regard, inter alia, he admitted to police that he received a call established by other evidence made to this phone from the person Chan, who was present at the Riverwood address at the time of the controlled delivery operation. Whilst the phone with this number was never recovered, the offender also admitted to police that he disposed of several mobile phones during the course of his activities.
2. Indeed, I am satisfied that all findings of fact contended for by the Crown in MFI 1, are both consistent with the jury's verdict and established to the relevant degree and I intend to essentially adopt them. Accordingly, my findings of fact are as follows: I. On 10 March 2014, the Offender signed a 12 month rental agreement for premises at 22 Kentucky Road, Riverwood NSW ("the premises"). He signed the rental agreement in the name of Clint Zhang, and provided a false address and a mobile phone number (0450 046 938) as contact which was subscribed in a false name. He paid $2,080 for the rental bond and stated that his uncle would be residing at the premises. The Offender purchased furniture and items for the residence, including a mattress, refrigerator, television and cutlery. II. On that same day, a Mr Ah Fung Yau ("YAU") arrived at Sydney Airport on a Cathay Pacific flight from Hong Kong, and indicated on his Incoming Passenger Card that he would be staying at the City Lodge in Sydney. YAU travelled to City Lodge on 10 March 2014, and checked in prior to being collected by the Offender and transported to the premises with his belongings. III. The Offender travelled to the premises approximately twice each week to convey money for living expenses to YAU during the period in which YAU was residing at Riverwood, being between his arrival on 10 March 2014, and his arrest on 1 May 2014. The Offender claimed to have been paid $100 on each occasion that he was required to travel to the premises. IV. On 7 April 2014, the Offender contacted Cathay Pacific using the name of 'Mr Cling' and made an enquiry as to whether YAU's flight booking, for which he had not attended on 1 April 2014, could be extended to 5 May 2014.6 The Offender used the e-ticket number recorded on the travel documents of YAU, which he had retained, and provided the contact number of 0450 046 938. V. On 8 April 2014, the Cathay Pacific operative contacted the Offender and advised the cost of the booking variation, and the Offender stated that he may purchase a new ticket to Hong Kong for YAU rather than accept the booking variation. VI. On 14 April 2014 consignment SZTCA08-SYD arrived in Sydney from Hong Kong. It comprised 31 brown cardboard boxes said to contain hoses and nozzles. Each of the boxes was identified with the details 'Ah Fung Yau 22 Kentucky Rd Riverwood 2210 AU'. VII. On that day, the Offender phoned Le Feng Australia, the logistics coordinator for the consignment, on mobile phone number 0450 397 588, which was also subscribed in a false name. He identified himself as Ah Fung YAU, and used the identification number SZTCA08-SYD, which he had received on his mobile phone (0402 872 956) from another person involved in the importation who utilised another Australian based mobile phone to do so. The offender made enquiries as to the delivery and requested two hours' notice before delivery to ensure that he was at the address to receive it. VIII. On 17 April 2014, Yanhong Chen of Le Feng Australia telephoned the Offender on mobile phone 0450 397 588 and advised him of delays in the anticipated delivery of the package due to the Easter public holidays. IX. On 1 May 2014, AFP attended the premises and arrested YAU. The Offender was not present and was unaware of YAU's arrest and thereafter made multiple telephone calls to YAU's telephone number in an attempt to contact and locate him. X. On 4 May 2014, the Offender conducted Google searches on his desktop computer for the Australian Federal Police website and for any references to recent Sydney arrests for drug related offences. This was clearly done to check whether Yau had been arrested. XI. On 5 May 2014, the Offender was contacted again by Le Feng Australia and engaged in arrangements for the package to be delivered at midday that day to the premises, and stated that his sister would be home and would sign for the package. He called Le Feng Australia a few hours later to confirm that his sister was present at the premises to sign for the package. XII. On that day, a Ms Miu Fong Chan ("CHAN") arrived at Sydney Airport on a Cathay Pacific flight from Hong Kong, and indicated on her Incoming Passenger Card that she would be staying at an address in Sydney, which was the Hotel Pensione. The Offender travelled to the Hotel Pensione and collected CHAN, and conveyed her to the premises in a taxi cab. The Offender booked the taxi cab in the name of 'Jason', and stopped the cab on arrival in Riverwood 80 metres short of the premises in order to evade the attention of the authorities. Prior to collecting CHAN from the hotel, the Offender had purchased blankets and pillows for her use at the premises. XIII. After leaving CHAN at the premises, the Offender travelled in the cab to a local shopping centre where he purchased food for CHAN, as well as a mobile phone, which he activated in a false identity and provided to CHAN for use in the delivery. After providing these items to CHAN, the Offender departed the premises and travelled back to the city. XIV. At about midday, the AFP attended the premises utilising a delivery van driven by an AFP officer posing as the delivery driver. He spoke to CHAN at the door of the premises. When she could not make herself understood, CHAN used the delivery mobile phone with which she had been provided and called the Offender on the number ending in 588. She then handed the mobile phone to the delivery driver who spoke to the offender who confirmed that the woman present was "Julie" and that she could sign for the delivery. CHAN was thereafter arrested. XV. During this time period the offender disposed of multiple mobile phones that had been used for the delivery arrangements. XVI. When a search warrant was executed at the residence of the Offender on 3 June 2014, present in the Offender's bedroom were located: a) 4 Chinese drivers licences containing images depicting the Offender in false names and/or addresses; b) Multiple mobile phones and SIM cards; c) The passport and Cathay Pacific travel documents of Ah Fung YAU. XVII. Upon forensic examination of 29 of the 31 boxes that formed the consignment: a) Each box contained five coiled yellow hoses wrapped in clear plastic film and five packages containing a black plastic hose nozzle; b) The clear plastic film around one hose from each cardboard box was not as neatly wrapped and the hose was heavier than the others; and c) Examination of these heavier hoses found black rubber stoppers in both ends of the hose securing an amount of colourless liquid inside. d) In total, such bulk liquid weighed, as mentioned earlier, 37.31 kilograms.
3. The three inferences which the Crown seeks me to draw from certain facts are, firstly, that the offender intended to aid and abet, counsel or procure the importation of illicit drugs in Australia secondly, that he was aware, in general terms, of the quantity of drugs concealed inside the consignment in question and thirdly that he took steps in an attempt to avoid detection.
4. Mr Lloyd QC only disputed the second inference. During argument, the Crown abandoned this inference and sought to replace it with one where the offender should instead be found to have been aware that the amount of drugs imported was "significant". Mr Lloyd QC argued that, in effect, the offender may have believed the amount was as low as 1kg or even less which would nevertheless have a considerable value and would justify the offenders various actions in assisting the importation.
5. Whilst I generally accept Mr Lloyd's submission, I am nevertheless satisfied beyond reasonable doubt that the offender was aware, or of the belief that, the shipment contained a significant amount of illicit drugs, rather than something less, primarily due to the extent of his efforts in assuring its delivery to the Riverwood address.
6. As to the first and third inferences, I am comfortably satisfied as to each beyond reasonable doubt on the basis of the evidence relied upon by the Crown. Indeed, the first inference, due to the way the matter was left to the jury, was an element of the offence. Accordingly the jury were clearly satisfied of it beyond reasonable doubt. I will return to this aspect of the matter when dealing with the objective seriousness of the offending.

Presentence custody

1. The offender was charged with the subject offence on the day of his arrest and released immediately on conditional bail. Thereafter, he remained at large until I refused him bail consequent upon the jury's finding of guilt on, as mentioned, 29 March last, and he has remained in custody to date.
2. Accordingly, the sentence that I intend to impose will be backdated to commence on 29 March 2017.

The offender's prior criminal history

1. The offender was aged 28 at the time of his subject offending. He has no prior convictions and is therefore entitled to the leniency shown to a first-time offender. So far as the absence of any such record establishes prior good character, I have also taken this into account in his favour although it is trite that the prior good character of a person involved in a drug importation offence is generally given less weight as a mitigating factor on sentence: see R v Nguyen; R v Pham [2010] NSWCCA 238 at [72].

Remorse

1. There is no evidence of any remorse and, as I understand it, the offender still proclaims his innocence despite the jury's verdict and what, in my view, was a very strong case against him.

Offender's subjective circumstances

1. Where the offender gave no evidence at trial nor on sentence, his subjective circumstances must be drawn from other material, primarily being the letter from his parents and the psychological report from Dr Rodriguez. Further, care should be taken in relation to the history given in such report.
2. The offender was born in Shanghai, China on 3 March 1986. His parents apparently left China for political reasons after the Tiananmen Square incident in about 1989, leaving the offender, who was then aged three, in the care of his maternal grandmother in China. His parents then had little communication with him for about the next 10 years until he came to Australia himself in 1999 at around 13.
3. The offender told Dr Rodriguez that his childhood in China was "pretty bad" and that he was bullied at school "on a daily basis for many years," with such bullying often involving physical violence.
4. When he arrived in Australia he did not speak English and found adapting difficult. He missed his grandmother and felt that his parents were "strangers".
5. As to his schooling, he attended Tempe High School from years 8 to 12 and obtained the higher school certificate but didn't do well. He had no disciplinary problems at school in Australia but again reported some bullying together with a difficulty in making long-term friendships.
6. After leaving school he commenced to work with his family's signage business which he enjoyed.
7. As to his personal life, he has had three adult heterosexual relationships and in about 2009, when aged about 23, he married a Chinese-born woman, this relationship ended in divorce in January 2014 "when he realised that she had been unfaithful to him." Thereafter he had an 18 month long relationship with an Australian-born Chinese woman. This is said to have ended for the same reason.
8. He is now apparently in a relationship with a 29-year-old woman whom he described to Dr Rodriguez as supportive and having two university degrees in accounting. He further reported that they plan to marry upon his release. He also told Dr Rodriguez that he has four friends who visit him regularly in custody and who "do not use drugs or have ever been involved in crime."
9. As to his medical history, he apparently fell down some stairs when he was aged three and was rendered unconscious and hospitalised for some unknown time. He then sustained a back injury at work in 2014 which apparently caused him to cease work and which still troubles him. There is no suggestion that the head injury has led to any cognitive impairment. He is otherwise physically well. He also told Dr Rodriguez that he has no history of psychosis but that he has "chronic self-esteem issues" relating to his bullying at school and his "feelings of abandonment by his parents." He also said he had some mild depressive symptoms after his divorce. Whilst he maintains his innocence as stated, he further told Dr Rodriguez that after his divorce he "probably" made friends with the "wrong people".
10. As to his drug and alcohol history, consequent upon his divorce and back injury he started consuming more alcohol. He also met some "Chinese friends" who "introduced him to methamphetamine" and that at the time of the subject offending he was spending approximately $150 a week thereon. He also gave the history that he ceased such usage in 2014 after he was charged with possession which in fact seems to be a reference to the June 2015 offending dealt with in the Local Court which I will detail in a moment. He went on to tell Dr Rodriguez that he has recovered from his dependence on methamphetamine and did not believe he required drug and alcohol treatment. As to his future, he apparently intends to return to work in his father's business.
11. On the basis of his examination of the offender, Dr Rodriguez was of the view that that he did not appear to be depressed but showed signs of anxiety and hyper vigilance. He concluded that the offender had an adjustment disorder with an anxious mood which was an "appropriate reaction to his current circumstances given that he is about to be sentenced." He also found that the offender met the DSM 5 criteria for a substance use disorder. Otherwise it is fair to say that his mental state examination revealed no material abnormalities let alone any that could be said to be related to his offending.

The offender's prospects of rehabilitation

1. After performing certain tests upon the offender and taking into account such matters as his lack of prior offending, lack of institutional misconduct and his "satisfactory" current personal and intimate relationships, Dr Rodriguez opined that the offender fell "into a low risk loading of risk factors associated with general reoffending" although his prior substance use was "problematic." In this regard, Dr Rodriguez was of the view that the offender required "long term drug and alcohol counselling in conjunction with individual relapse prevention with a psychologist to address his substance use disorder" and that he has a "moderate risk of relapse into substance use." Nevertheless, overall, Dr Rodriguez was of the opinion that his "prospects of rehabilitation are encouraging."
2. On the other hand, in June 2015 the offender was arrested and charged with three non-indictable drug related offences involving, inter alia, the deemed supply of methamphetamine. One offence was dismissed and one was withdrawn. However, he was convicted of the deemed supply offence for which he was dealt with in the Local Court on 28 October 2016 by the imposition of a 2 year section 9 bond.
3. Further, the offender has shown no remorse in relation to the subject offending.
4. Nevertheless, bearing in mind the offender's relative youth and his apparent family support, I am satisfied that his prospects of rehabilitation are above average.

The objective seriousness of the offending

1. To determine the objective seriousness of the subject offending it is of course necessary, if possible, to determine the offender's role in the subject criminal enterprise. In this regard, the Crown submitted that the extent of the offender's activity would lead to the conclusion that he "performed the role of principal in the importation."
2. On the other hand, Mr Lloyd QC submitted that his role was akin to that of a facilitator or receiver or storeman. In this regard, Mr Lloyd QC submitted that "the very fact of the laying of a charge of "aid and abet" supports the inference that the offender was being used by others…in arranging for the receipt of the consignment of narcotics." He further submitted that there was no evidence that the offender was party to the exportation of the narcotics from Asia nor was he a financier.
3. As to Mr Lloyd's submission that the laying of the aid and abet charge supports an inference that the offender was being used by others and, presumably, cannot therefore be viewed as a principal, in GAS v R [2004] HCA 22, 217 CLR 198 at [23], the High Court stated: "It is not a universal principle that the culpability of an aider and abettor is less than that of a principal offender… a manipulative or dominant aider and abettor may be more culpable than a principal. And even when aiders and abettors are less culpable, the degree of difference will depend upon the circumstances of the particular case."
4. In the present circumstances, whilst I accept that the evidence establishes there was at least one other person involved with the importation who was in Australia, communicating with the offender, I do not agree that the offenders role could be described as being akin to that of a facilitator or receiver or storeman. His actions in leasing the premises, arranging for the shipment to be delivered thereto and the placing of firstly Yau and then Chan in such premises to receive such shipment bespeak what I would regard as a very significant role if not the major role in the receipt of the drugs into Australia prior to their distribution. Whilst I am not satisfied beyond reasonable doubt that it was at the level of a principal, it was nevertheless one which was reasonably high up the hierarchical ladder and could be characterised at middle management level.
5. The amount of the drugs imported was also very significant, as was their value. Whilst the purity of the bulk amount was not high, the equivalent pure weight was close to 20 times that of the relevant commercial quantity and their wholesale and street values were in the millions of dollars. In making this statement I am not departing from my earlier finding that I could only be satisfied beyond reasonable doubt that the offender was aware that the shipment involved a "significant" quantity of drugs as opposed to their actual quantity. Nevertheless, the shipments actual quantity and value remain relevant factors in assessing objective seriousness.
6. The offender's motivation would seem to have been financial gain and whilst it is correct there is no evidence that he was to or did in fact receive significant monies for his role, this also remains a relevant factor.
7. In addition, in its written submissions the Crown argued that because the offender was convicted on the basis, as left to the jury by agreement, that he actually knew there were drugs concealed inside the consignment, as opposed to merely being reckless as to same, this represented an aggravating factor and it relied upon the Victorian Court of Appeal decision in Lau v R [2011] VSCA 324 at [25]-[26].
8. During oral argument, the Crown withdrew this submission and argued instead that the fact that the offender was found guilty on this basis "just affects his culpability".
9. As to both submissions, Mr Lloyd QC argued that the court would fall into error if it relied upon the jury's decision in this regard to in any way increase the court's finding as to objective seriousness.
10. At the trial of this matter as mentioned the mental element as left to the jury, with the agreement of both parties, was that it had to be satisfied beyond reasonable doubt that the accused intended that his conduct would aid, abet counsel or procure the offence of importing a border controlled drug which involved the Crown proving beyond reasonable doubt that the offender knew there were drugs in the shipment, as opposed to being reckless as to same.
11. In these circumstances, in my view it would be impermissible to find the jury's decision as to guilt somehow aggravated the objective seriousness of the offending as the issue of the offender's actual knowledge of the existence of illicit drugs in the shipment was left to them as an element of the offence. However, section 11.2(3) of the Code permits a finding of guilt to be based upon either actual knowledge of the nature of the substance imported or recklessness as to its nature and in this case the jury's finding was based on the former. Whilst such a finding cannot "aggravate" the offending, a finding of guilt based upon actual knowledge of the nature of the substance imported is the more serious limb of the offence contained in section 11.2(3) and regard must be had to this fact.
12. Overall, the Crown submitted that the objective seriousness of the offending was properly characterised as mid-range. On the other hand, Mr Lloyd in his written submissions argued that the offending was "at the lower end of the scale of seriousness." This was modified somewhat in addresses to the proposition that that it was "certainly below the mid line".
13. Having taken all relevant matters into consideration, I accept the Crown's submission in this regard and find that the objective seriousness of the offending is in the mid-range.

Deterrence

1. Offences such as the present are extremely serious as indicated by the maximum penalty imposed by Parliament. Illicit drugs cause massive problems in the community, destroying lives, breaking up families and contributing to the commission of other serious crime. General deterrence is of the utmost importance in relation to these sorts of offences. Further, specific deterrence must not be forgotten.

Sentence options

1. Pursuant to section 17A of the Act, after considering all available sentencing alternatives and bearing in mind all the matters referred to, especially the objective seriousness of the offending, I am satisfied that no other sentence than one of imprisonment is appropriate in all the circumstances of this case. In fact, this was the position of both parties.

Overall approach

1. Pursuant to section 16A(1) of the Act, any sentence that I impose must be of a severity appropriate in all circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of the Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51].
2. In addition, what is the severity appropriate is to be determined having regard to the general principles identified by the High Court in Power v R [1974] HCA 26.

Sentence

1. The offender is convicted and sentenced to imprisonment for a period of 12 years commencing on 29 March 2017 and expiring on 28 March 2029.
2. Pursuant to section 19AB of the Act, I am required to either fix a non-parole period in respect of the sentence imposed or make a recognisance release order, unless I decide that neither is appropriate, in which case I must give reasons.
3. In Hili v The Queen [2010] HCA 45, the High Court confirmed that all the circumstances, including the non-inclusive matters referred to in section 16A(2) of the Act, must be taken into account in fixing a non-parole period or making a recognisance release order, just as they must be taken into account in imposing a sentence of imprisonment.
4. Further, section 16A(1) of the Act again requires the court to fix a non-parole period or make a recognisance release order that is of a severity appropriate in all the circumstances of the case.
5. In addition, the High Court in Hili held that there was no "norm" or starting point whether expressed as a percentage of the sentence or otherwise, for a period of imprisonment that a Federal offender should serve before release. The High Court also held that a critical consideration is the determination of the period of imprisonment that justice requires the offender must serve in custody.
6. In considering the relevant statutory matters and adopting the approach set out in Power v R, I am mindful of all matters referred to above. These include, on the one hand, that the offender is still relatively young, has above average prospects of rehabilitation and this will be his first time in prison, On the other hand, I am again mindful of the overall objective seriousness of the offending.
7. In all the circumstances, in my view, justice requires that I set a non-parole period of 7 years and 2 months commencing on 29 March 2017 and expiring on 28 May 2024 when the offender will be eligible for parole.
8. Mr Chen in total I have sentenced you to 12 years imprisonment dating from 29 March this year when you first went into custody. However, I have set a non-parole period of 7 years and 2 months. This means that you will remain in custody for at least approximately another 6 years and 10 months or until 28 May 2024. That means you will be eligible for parole on this date and if you behave yourself in prison and try to improve yourself you may then be released to parole. If you are released on 28 May 2024 you will then be on parole for approximately another 5 years meaning that if you get into trouble during that time you may be returned to prison to finish the balance of your sentence. Do you understand?

Amendments 08 August 2017 - Amendment to Legislation Cited - Legislation sections added 17 July 2018 - Added "Sentence" heading above paragraph 52. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2018