R v Ta Song Wong [2006] VSC 126

1 You, Ta Song Wong, have pleaded guilty before me to one count of importation of a commercial quantity of heroin into Australia contrary to paragraph 233B(1)(b) of the Customs Act 1901. This offence carries a maximum penalty of life imprisonment. Your plea of guilty was entered before me on 11 July 2005.

Background

2 The background to your offence, such as it is known, is that either shortly before midnight on 15 April 2003 or in the early morning of 16 April 2003 you, together with a deceased man whose name remains unknown to authorities and who has not been identified by them, left a ship, the Pong Su, which was then anchored a short distance from the shore at Boggaley Creek. You and he left the ship by way of an inflatable dinghy. In that dinghy were six packages of heroin, each of approximately 25 kilograms in weight. The inflatable dinghy suffered problems with its fuel supply and overturned in the surf near Boggaley Creek resulting in the death of the deceased man. One package of heroin was lost at sea but approximately 125 kilograms of heroin were landed on the beach. That heroin was removed from the beach by three persons who were awaiting your arrival on shore. That importation of heroin into Victoria is the largest known such importation of its type in this State and one of the largest known importations into Australia. The total bulk weight of the heroin that was seized was 123.32 kilograms containing a total of 82.29 kilograms of pure heroin. The quantity of pure heroin far exceeded the minimum amount which is required pursuant to the Customs Act to establish a commercial quantity for the purposes of passing sentence under the Act. The Customs Act 1914 provides that 1.5 kilograms of pure heroin is a commercial quantity of heroin.

3 As is apparent from the decided authorities, the issue of the value of such heroin is not a matter which should weigh heavily in my considerations. There is evidence before me from a statement provided by Federal Agent Buxton that such an amount of bulk heroin broken down to "street deals" of approximately 10% purity would be in the region of $160M. On the other hand, however, the value of the heroin in question might well be very considerably less than that. In Tsolacos v R[1] Winneke P said in relation to the Drugs, Poisons and Controlled Substances Act 1981 (Vic):

"For the purposes of identifying the gravity of the offence and thus ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked and not on value, which, as this case itself shows, can vary according to the circumstances in which the drug is trafficked. I do not believe that the learned judge was deflected from this issue by assumptions as to value made by a police officer and which were contained in a written document that had been put before him. In my view the critical issue with which his Honour was concerned was the fact that the trafficking was in an amount of 900 grams, a fact which was conceded by the applicant. In my view his Honour was concerned to impose a sentence based on the size of the operation which in turn was reflected in the amount of drugs trafficked."

4 Accordingly, estimates of value of the heroin concerned are of no great weight. It is quite apparent that the final street value of an importation of heroin can vary greatly according to a number of factors including the availability of the drug at the time and the manner in which it is cut down, as well as a number of other circumstances. The legislation in question sets out the way in which a matter subject to the Customs Act 1901 ought to proceed by way of sentencing principles. In the case before me, the real matter of substance is that the quantity of pure heroin which you imported into Australia was far in excess of the amount of 1.5 kilograms defined by the Act as being a commercial quantity.

5 It is apparent that the importing operation was a well-planned, well-financed, complex, international drug smuggling operation. The planning involved the placing of three men into Australia in the weeks prior to the arrival of the Pong Su which was carrying the heroin. The plan involved an arrangement for the ship to rendezvous with a shore party comprising Kiam-Fah Teng and persons known as Yau Kim Lam and Chin Kwang Lee.

6 Many of the facts about your involvement in the venture are unclear. It is not clear precisely when you boarded the Pong Su. Records seized from the ship reveal that on 13 to 14 March 2003 just over 5,000 tonnes of sand were loaded onto the Pong Su at Yantai, a port on the coast of China. However, having loaded the sand at Yantai, instead of proceeding directly to Indonesia, the Pong Su diverted to a place called Jae Mae Do in North Korea. It arrived there on 15 March 2003. Documents later located on the ship indicate that there were 30 crew members "all Korean" on board the vessel at the time the Pong Su loaded the feldspar in Yantai. The business records of the ship demonstrate that after departing Jae Mae Do on 15 March 2003, communications from the ship stated that the master was then reporting 32 crew instead of the 30 which had left Yantai. A later communication sent from the ship stated, "Crew 32/all Korean, healthy". By the time of the arrival of the ship in Djakarta on 28 March 2003 documentation provided to the Indonesian authorities established that the master was claiming that there were 32 crew members on board the vessel.

7 The prosecution case is that you and the deceased man boarded the ship on 15 March 2003 at Jae Mae Do in North Korea for the purpose of carrying out the importation of heroin into Australia.

8 You have instructed your counsel that you boarded the Pong Su in Yantai in China and that at the time you had no knowledge of the existence of the heroin. Whatever is the truth about when you boarded the ship, it is apparent that you then travelled to Australia on the ship over an extended period of time. At some stage 150 kilograms of heroin were loaded onto the ship. The prosecution contends that the heroin was most likely loaded onto the ship in North Korea and at Jae Mae Do. You have instructed your counsel that parcels, which as I understand, you say you believed at the time to be electrical goods, were loaded onto the ship in Djakarta. Whatever the truth of this, there is no doubt that it was you who along with the deceased man physically imported the heroin into Australia and that you knew at the time that you were importing a very large quantity of the narcotic.

9 The prosecution argues that the complex and risky nature of the operation leads to the inevitable conclusion that you knew exactly what you were expected to do and what substance was involved. The heroin which was imported into Australia is inextricably and physically connected to you. All five packages which were found by police upon Australian soil were wrapped in the same distinctive manner. They were approximately the same physical size. Each was tied with rubber tubing straps and the purity of heroin was similar across all five packages. Your fingerprints and those of the deceased were found on one of the packages found in the possession of Lee and Teng and on packages of heroin located in the bush some time later. The fact that your fingerprints were found internally within the packaging of the heroin indicates that you handled the packages at a time earlier than when they were completely packaged and prior to them being wrapped in several other waterproof layers. Through your counsel you stated that this occurred soon before your disembarkation from the ship. Nevertheless, the fact is that you took part in packing the heroin and it is argued by the prosecution that you were well aware of exactly what role you were performing. Clearly, you were engaged in the exercise of waterproofing the heroin and at that time you must have known the nature of the activity in which you were to be engaged.

10 After landing upon the shore you buried the deceased man. The dinghy was inoperable and you had no means of returning to the ship.

11 You were arrested by police on 17 April 2003, hiding in dense shrub above Boggaley Creek. You did not volunteer yourself to the police; you had to be found by them. When arrested you had in your possession approximately $1,000 and a variety of pieces of equipment including a GPS which had previously been in the possession of Teng and Lam. You told police that your name was Ta Song Wong. You were not in possession of a passport or any other identification documents. No documents that related to any person named Ta Song Wong were ever located on board the Pong Su. In Djakarta a crew list of the Pong Su containing 32 names had been provided to Indonesian authorities. By the time the ship arrived in Sydney under the arrest of the Australian Navy, there were 30 persons on board. With the exception of two names, the 30 people arrested in Sydney corresponded to the crew list provided to the Indonesian authorities. One of those names was Kim Sung Bom, said by the ship's record to have been born on 6 March 1962 and whose occupation was that of a deck rating. The prosecution argues that it is likely that you are the person referred to in that list as Bom. However, when the ship was searched in Sydney no document relating to either of these two people was found on board. There is thus no independent evidence to confirm your identity. I cannot be satisfied beyond reasonable doubt that you are the person referred to as Bom in the ship's records.

12 Nevertheless, as I have said, it is clear that you and the deceased man were the importers of the heroin into Australia. It is clear that you each played a significant role in the importation in that you undertook the last vital step in transferring the heroin from the ship to the shore. It is clear that Lam was the shore-based person who was to receive the heroin from you and the deceased person. You were found with an orange Nokia telephone and two SIM cards. In the days preceding the events at Boggaley Creek there had been communications between a telephone service operated by Lam and one of the services later to have been found in your possession. The telephone found in your possession had received calls on 8 April 2003 through the Geraldton mobile tower at a time when the Pong Su was a short distance from that tower. It also received calls on 14, 16 and 17 April whilst you were undoubtedly in possession of it. A telephone service that Lam had used contained in the directory the name of Bom which name was associated with a telephone number being one of the two services located in your possession. It should be observed that the deceased man died from drowning. The prosecution argues that the fact that you had possession of the Nokia telephone, and the fact that the delivery of the heroin took place in the absence of the deceased, suggests that you played no lesser role than the deceased person in the importation of the heroin. Mr Lewis of counsel argues that in circumstances where the dinghy overturned it is apparent that the telephone must have been waterproofed in some way and that it cannot be concluded that you were in possession of the phone before the dinghy overturned and the deceased met his death. Thus he contends that it is equally open that the deceased had the phone prior to its coming into your possession. Indeed he informs me that your instructions to him are that you found the phone on the beach. I am unable to determine who had possession of the phone at the time the telephone calls were made. There is no doubt however that in the course of the following hours you used the phone to contact the ship.

13 As stated above, the fact that your fingerprints appeared upon the internal wrapping of some of the packages and the whole context in which the importation took place makes it clear that you had an understanding of the nature of the cargo and the magnitude of your role. Your role involved the most dangerous part of the importation venture. You were involved in the launching of the dinghy off the Pong Su into the open ocean and the travelling of the dinghy to shore in rough weather conditions. Clearly you were aware of the loading of the packs of heroin into the dinghy. It was you who tried to disguise the death of the deceased by covering him up with rocks and kelp. It is contended by the prosecution that you were kept in a position of trust by those arranging the importation, not only due to the valuable nature of the cargo but because of what you knew about the organisation of the venture and your capacity to deal as you did with Lam on shore. I am unable however to determine whether it was you or the deceased or both of you who had the capacity to deal with Lam

14 It is beyond argument that after delivery of the heroin you were intending to return to the ship with the deceased and then to leave Australia. That is clear because you had with you no documentation, clothing or other possessions which would demonstrate any intention to stay in Australia. The ship remained in the vicinity of Boggaley Creek until almost midday on 16 April 2003, thus evidencing the fact that it was expected that you would return. You had no previous relationship with this country. Your sole purpose for entering Australia was to commit the offence.

15 On this basis the prosecution submits that you played an integral role in the operation and that you were entrusted with the role of ensuring that an immensely valuable cargo of heroin would be delivered into Australia. Your counsel contends that you were "simply the person who delivered the drugs" and that you "inevitably" fall into a lower category in hierarchy than Lam, Teng and Lee. He contends that the fact that the ship left without you demonstrates that you were "expendable". I do not accept this argument. You were on shore by soon after midnight. The ship did not depart until midday. The evidence is that people on the ship were seen looking towards the area in which you were with binoculars. The ship was at serious risk of arrest. It can not be said that it departed the area with alacrity thus abandoning an expendable person.

16 Your counsel has told me of your instructions to him. You have told him that you were born in China in an area adjacent to North Korea. Your father was a carpenter whom you believed to be a Chinese citizen but of Korean descent. Your mother was Korean but born in China. You were ten years of age when your parents died and you were educated at a local school until that age. Thereafter you were taken care of by neighbours but became itinerant. You made your living by collecting wood from the mountains. You were born on 10 October 1965. I am told that you collected wood from the mountains and burnt it into charcoal and then sold the charcoal. Subsequently, in your late teenage years, you worked as a porter at a train station and later for a construction company. You went to Beijing to seek work. There it is said you met a man whom you knew as Chui. You have instructed your counsel that Chui is the deceased man. Chui and you met at a market in Beijing and he was generous towards you, giving you food and money. You were offered a sum of 100,000 yuan, which at the time Mr Lewis tells me, equated to about A$16,000. You say you were to be paid that sum to help Chui bring electrical equipment to Australia. That sum of money amounted to riches beyond your imagination. Mr Lewis argues that it was this that "lured" and "tricked" you into joining the enterprise.

17 You have instructed Mr Lewis that you were taken on to the Pong Su by Chui in Yantai on the afternoon of 14 March 2003. You have instructed your counsel that the packages which turned out to be the drugs, did not arrive until the ship moored off Djakarta, when a boat came alongside the ship and two large boxes were loaded onto the ship. Those boxes were taken up to the cabin in which you and Chui were housed, and they remained there in that state until shortly before they were to be disembarked at which time you were asked to wrap them so that they would be waterproof. You say that you and Chui did that with materials that were supplied to you. You do not say by whom. Chui had always told you that they were "electrical parts". You instruct that you understood them to be valuable, but at that stage you did not understand them to be drugs. Subsequently, after you questioned Chui, he told you that what was in the boxes was in fact heroin. Precisely when you say this occurred was not stated to me. Nevertheless it is stated that you were thousands of miles from your home and dependent upon Chui. It is said by your counsel that it is in those circumstances only, that you knowingly joined the scheme to bring the drugs into Australia, thus becoming guilty of importation of them.

18 It should be observed that the above story is bereft of any real detail. I am not told when Chui induced you to engage in the voyage or whether any precise details of the nature of the voyage were provided by him to you. I am not told how or where it was that Chui intended to import "electrical goods" into Australia, nor what it was that you were expected to do to assist with the importation of the "electrical goods" in exchange for the sum of 100,000 yuan. This sum is said to be an amount of "riches beyond" your imagination. No detail as to what documents were used to gain your entry to the ship, or to Djakarta has been supplied. You did not give evidence before me.

19 It should be further observed that the story now advanced before the Court from the Bar table varies somewhat from other statements made by you. You were interviewed by police soon after your arrest, and whilst I recognise that you were in a reduced and tired state, to the extent that police did terminate the interview, you nevertheless denied any involvement in heroin importation. More significantly you were interviewed by the Homicide Squad some days later. You told police that you were "a worker" on a ship, the name of which was unknown to you. You said that when you got to Australia your "friend", Chui asked you to take an item ashore. You said the ship stopped near the shore. You said you got into a small boat with your friend Chui. You said he "arranged the boat". You said you had met him in the "beginning of the year". You had met him only "twice". No mention was made in this statement of the nature of the "item" you brought to shore.

20 In essence, therefore, your version of events is that in effect you are an itinerant worker, with no real skills, who met up with Chui on two occasions, and that you were offered what was to you a very substantial sum of money, to travel on a ship and help Chui deliver electrical goods. This version is implausible in the extreme.

21 The drug importing operation which took place in this case was a carefully planned and sophisticated operation. Clearly someone had been in Australia in March of 2003 to establish a false cover story for the trip by being in touch with legitimate freight forwarders of motor cars. Sophisticated forged documents came into existence to enable Lee and Lam to enter Australia and conduct their affairs here. Substantial sums of money were spent in relation to the ship's voyage including fuel costs of US$75,000 and the costs of the change of flag. Well planned and devious use of telephones took place. Forged contract documents referring to a fictitious chartering company, KIMTO were brought into existence and used, as were fictitious business cards. Those responsible for this importation engaged in careful, and expensive planning for the enterprise. Undoubtedly the heroin was of immense value. Yet on your version, the operation was put at risk by bringing someone who was not known to anybody, beyond two meetings with Chiu, to undertake a voyage to Australia via Djakarta, and then to engage in the most perilous part of the venture, the transfer of the heroin from the ship to those persons awaiting the arrival of the valuable cargo. Put in the context of all that is known about the venture, I consider it highly improbable that your explanation of your role, unsupported in any way by the evidence or by any document, is the truth.

22 That said however, and as much as I do not accept the explanation of your role as proffered by you as mitigatory, I must be satisfied beyond reasonable doubt as to any matter which I find against you.

23 In this regard it is necessary for me to consider the evidence of your place in the hierarchy. In R v Olbrich[2] Gleeson CJ, Gaudron, Hayne and Callinan JJ in relation to the identification of the involvement of the accused person in a crime related to importation said:[3]

"Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drug; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one to that imposed on another. In that context, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. ... Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did.

There are, of course, cases in which only one offender is prosecuted but it is clear that 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 that offender's criminality."

24 In consideration of such principles I am satisfied beyond reasonable doubt that you travelled with the ship at least from the time that it departed Jae Mae Do. I am satisfied beyond reasonable doubt that on any view you knew that the activity in which you were engaging was highly illegal. Even on your own version, which is that a person whom you had met twice, offered you what was to you a very large sum of money to assist him in delivering an item to Australia, it would be apparent that what you were engaged upon was an illegal activity. Even on that version you chose to do so for financial reward. I accept the submission of the prosecution that you were part of a well planned, well financed major international drug smuggling operation and that in all the circumstances those engaged in the operation, and in particular those who had vital parts to play would be persons who could be trusted to do so. I am satisfied beyond reasonable doubt that you engaged in the packing of the heroin. I cannot be satisfied beyond reasonable doubt of the exact time when that occurred, but there can be no doubt that you were well aware of the nature of the importation at that time. You were no mere "mule" transporting some substance in your bag or having something strapped to your body to bring through an international border. You played an active part in packing the heroin and in the vital activity of transporting it from the ship to the shore.

25 The prosecution argues that the fact that you were found with the Lam phone and the fact that the delivery of the heroin took place in the absence of the deceased points to your role as being no less than that of the deceased. I am unable to be satisfied one way or the other about that. The fact is that by the time you arrived at the beach the heroin was being washed ashore. By then it was hardly a delivery. It is clear that the events on the beach which were unfolding were chaotic. The possession by you of the phone does not satisfy me beyond reasonable doubt as to your role vis a vis the deceased. I am unable to be satisfied beyond reasonable doubt that your role was any greater than that of the deceased, nor on the balance of probabilities any less than that of the deceased. However, I am satisfied beyond reasonable doubt that you would not have travelled to Australia without the knowledge that you had a significant role to play. I reject as fanciful the suggestion that you were brought here as an uneducated itinerant, kept in ignorance, and placed in a dinghy to help deliver items about which you were totally ignorant until shortly before the importation took place.

26 Your part in the importation was to ensure the delivery of the heroin to the Australian shore. That was a major part in the offence. That said however, I accept that you were not a principal in the endeavour. You were another person like Teng, Lam and Lee, who had a distinct and separate part to play. Although I cannot be satisfied of your actual level in the criminal hierarchy I am satisfied that you played a significant part in a serious crime.

27 However, there are a number of matters of mitigation which I take into account. First, there is the fact that you have pleaded guilty. That fact is required to be taken into account pursuant to s.16A(2)(g) of the Crimes Act and I do so. By doing so you facilitated the course of justice in that the trial of your case, which was of some complexity, was avoided. Nevertheless, the weight to be given to your plea is not great. You pleaded guilty to the offence of importation on 11 July 2005, a point of time less than three weeks before your joint trial was due to commence and after many days of pre-trial argument about matters the subject of pre-trial rulings, some of which affected you, had taken place. In addition, your plea was not entered until after I had sentenced Teng on 21 February 2005 and Lam on 15 June 2005. However, your plea does not demonstrate remorse. There is no evidence whatsoever before me that you suffer from any remorse. Rather, your plea reflects an acceptance at a very late stage of the inevitability of your conviction and the possibility that after a trial you would face a life sentence. The case against you was at all times overwhelming and it is difficult to contemplate that at any stage after the committal hearing and prior to your plea of guilty you had any realistic prospect of mounting a defence to the charge of importation.

28 I do accept that there has been a delay since you pleaded guilty and that for that period you have suffered uncertainty as to your fate and I take that matter into account in your favour.

29 Your counsel has informed me of your instructions as to your background. Whether or not that is the truth is not established before me or supported in any way. I simply do not know whether you are a Chinese person who speaks Korean or a Korean person who speaks Mandarin. I am not satisfied that you are who you say you are.

30 I am informed by your counsel that since your imprisonment you have applied yourself diligently and worked hard in the prison manufacturing medical clothing. You have commenced to study English and a number of certificates were tendered before me in relation to courses studied in prison.

31 I accept that your long term future is uncertain. No doubt at the end of your sentence Australian authorities will seek to deport you. There is no evidence as to your nationality, and unless either China or North Korea claims you as a citizen there is a distinct possibility that you will be a "stateless" person with all that that entails.

32 The prosecution alleges no prior convictions against you. However, this matter is not of any mitigatory weight in circumstances where I am not sat that you are who you say you are.

33 I accept as submitted by your counsel that imprisonment for you will be more difficult and isolating than for other prisoners. You are from a foreign country and speak a foreign language and although you have commenced to learn English whilst in custody, no doubt you will be isolated from your culture. However, this must be a matter of limited weight. The fact is that you came onto Australian soil in the course of committing an extremely serious crime. In return for what was to you a substantial sum of money, you were prepared to take the risk of apprehension. The inevitable consequence of that is that you, as you must have anticipated, will now be incarcerated in circumstances which will cause you some isolation.

34 Your counsel submits that your prospects of rehabilitation are good. It is difficult to give great weight to this issue since so little is really known about your background, but I accept that taking into account the consequences which will flow from your conduct on this occasion, the prospects of your not re-offending may well be increased. Nevertheless as well as matters personal to you such as the chances of your rehabilitation I must, amongst other things, take into account the issue of general deterrence. It is a matter of paramount significance in this case.

35 This is a most serious example of a grave crime. To have been involved as an active participant in the largest importation of heroin ever detected in this State, and one of the largest ever detected in Australia, calls for severe punishment. The issue of general deterrence is of great significance in the determination of the appropriate sentence to be imposed upon you. Those who see fit to take the risk of playing a part in the importation of heroin into this country must have no expectation other than that the consequences of engaging in such enterprises will be severe. As the Victorian Court of Appeal said in R v Soo Su[4]

"Again and again the Courts have said that importers and traffickers of heroin will receive heavy sentences."

36 The importation of a large quantity of heroin in which you played a substantial role had the potential to cause grave harm to many members of our community. As Sully J said in Cheung Wai Man:[5]

"The importation or the attempted importation of, and the trafficking or attempted trafficking in, a quantity of heroin of the amount here in question is in a very real sense a declaration of war upon this community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law which is in the end the ultimate guarantor of the personal freedoms and of the social stability which all of us Australians take for granted.

In the face of such challenges each of the institutional supports of our society has a role to play. That of the courts is to punish and deter according to law. Obviously, the courts alone cannot meet adequately, let alone defeat, the challenge of which I have been speaking. What the courts can do is to punish drug-related crime in a way which signals plainly to drug traffickers, especially foreign drug traffickers, that the courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who ... engage in drug related crime ... "

37 In my view the words of Sully J are applicable to the circumstances of this case. As I have said, the circumstances of your case are such that the issue of general deterrence is most important. This country has a vast and unprotected coastline which some foreign drug traffickers and dealers may see as providing an opportunity for undetected crime. Those persons and those who assist them must know that when detected they will suffer a heavy penalty for their greed.

38 Furthermore, I am required by s.16A(1) of the Crimes Act to impose a sentence that is of a severity appropriate in all the circumstances. This together with s.16A(2)(k) of the Act requires me to ensure that you are adequately punished for the offence.

39 Clearly, and for the reasons set out above, there is no alternative other than to impose a substantial sentence of imprisonment upon you.

40 The prosecution submits that you should be sentenced to a term of life imprisonment, but that I should fix a non-parole period. On the other hand, whilst your counsel concedes that a lengthy prison sentence is inevitable in all the circumstances, a head sentence of life imprisonment is submitted by Mr Lewis to be an inappropriate sentence.

41 Whilst I accept the thrust of the submission advanced on behalf of the prosecution that this case is without doubt a serious example of a grave offence, and that persons who are proven to have played a major part in the commission of an offence of the type before me can expect to receive condign sentences which may well require the imposition of the maximum sentence, I do not conclude in your particular circumstances that a head sentence of life imprisonment is appropriate. In fixing the head sentence, I am bound to approach the task on the basis that you might be required to serve every day of the sentence. As seriously as I regard the offence, and as important as your part in the importation of heroin into Australia was, such a head sentence would not be appropriate taking into account the part played by you in the importation in combination with matters of mitigation of which I am aware, including in particular your plea of guilty, by reason of which a transparent discount of your sentence is required. I have given careful consideration to this matter in particular.

42 I must also take into account matters of parity with others who have pleaded guilty. I have already sentenced Teng and Lam. In my view, in terms of culpability your conduct although different is comparable with that of them. However, in other regards there are some distinctions. The first is the factor of the plea of guilty and the degree of remorse which is associated with that plea. As stated above, you pleaded guilty well after Teng, and well after his sentence was handed down. He pleaded guilty on 27 January 2005. He was sentenced on 21 February 2005. Lam pleaded guilty on 9 March 2005 and was sentenced on 15 June 2005. You pleaded guilty on 11 July 2005. Furthermore, unlike Teng you waited until a number of rulings relevant to your defence were handed down. Your plea of guilty, deserving as it is of transparent discount, does not come about by reason of remorse or contrition. It comes about by reason of the clear recognition on your part of the inevitability of your conviction and the likely sentence which would follow such a conviction. Unlike Teng, there is no evidence of remorse before me, save for what might be called statutory remorse. Furthermore, whereas I was positively satisfied of the background of Teng and thus able to form some views about the possibility of reformation, I am unable to be so positively satisfied in your case. Finally, there is the factor of age. Teng will not have a significant period of useful life available to him upon release, even at the minimum term of his sentence. He will suffer additional hardship by reason of his age and absence from his family. You of course are somewhat younger being now aged 40 and so it is said having no family.

43 Thus in terms of parity, there are a number of good reasons why your sentence should not be identical with that of Teng in particular. In the end result however I do not conclude that there is any good reason why your role and all other relevant circumstances differ greatly from that of Lam.

44 I sentence you to 23 years' imprisonment to commence this day. I set a non-parole period of 16 years. Pursuant to s.16E of the Crimes Act I declare that you have served 1085 days by way of pre-sentence detention.

45 Mr Lewis, I ask you to explain to your client the purpose and consequences of the fixing of a non-parole period as required by s.16F(1) of the Act.

[1] 81 A Crim R 434 at 436.

[2] [1999] HCA 54; (1999) 199 CLR 270.

[3] At 279.

[4] [1997] 1VR 1 at 73.

[5] Unreported, Court of Criminal Appeal, NSW 22 March 1991).