R v Wang [2017] NSWDC 457 | Case summary

KNOWINGLY PARTICIPATE IN A CRIMINAL GROUP DIRECTING ANY OF THE ACTIVITY (Form 1 offence)

At about 12pm on 14 May 2015, the offender Li Wang and co-accused Zhengyi Zhang and Si Ji Zhang, thereafter referred to as S Zhang and Ziyan Tang, met at the East Village Shopping Centre, Zetland, where they attended the East Phoenix Dumpling Bar. The shopping centre is bounded by Defries Avenue, Gadigal Avenue, the Eastern Distributor and Cooper Place. After lunch, Tang separated from the group and walked around the centre alone. Li Wang, Z Zhang and S Zhang walked around the centre for approximately an hour before Li Wang and S Zhang walked to the car park area of the complex.
Z Zhang met with Jun Jie Liang and Bin Sun outside the main entrance of the complex situated on the corner of Defries Avenue and Gadigal Avenue. About 1pm, Li Wang and S Zhang entered the black Mercedes-Benz BSA-64G belonging to Wang, which was parked in the underground car park of the East Village Shopping Centre, and travelled to the Moore Park Supa Centa car park. During this time, Z Zhang, Liang and Sun loitered on the eastern footpath of Gadigal Avenue. Liang and Sun stood approximately ten metres from Z Zhang for most of the time. On a few occasions, Z Zhang indicated to Sun to stand away from him whilst waiting on the street. During this time Z Zhang appeared to look down the street and continually monitor his mobile phone.
About 1.15pm, Z Zhang walked across Gadigal Avenue out of sight. Moments later, Z Zhang walked back towards the eastern footpath carrying a bag. Seconds later, Liang and Sun were seen both in possession of brown coloured bags, and Z Zhang was seen without a bag. Z Zhang, Liang and Sun walked to Moore Park Supa Centa car park, which was a short distance from Gadigal Avenue. Liang and Sun were seen to walk a short distance behind Z Zhang. During this time Li Wang was monitored meeting with the undercover operative seated in the vehicle. A short time later, S Zhang exited the black Mercedes-Benz and approached Li Wang, who was then seated in the passenger seat of the operative's vehicle, and appeared to have a conversation. S Zhang walked to the southern entrance of the car park where he met Z Zhang. S Zhang and Z Zhang then walked north through the car park with Liang and Sun following metres behind each other, both still in possession of the brown bags.
The four co-offenders congregated in the vicinity of the black Mercedes-Benz belonging to Wang. Wang exited the operative's vehicle, and approached the vicinity of the four co-offenders before returning to the operative's vehicle. Moments later, S Zhang approached the vehicle where Li Wang was seated in the passenger seat and appeared to have a conversation. Moments later, S Zhang walked towards the three co-offenders and indicated with his hand for them to walk over to the operative's vehicle. Z Zhang and Sun walked in the direction of the vehicle. Z Zhang raised his hand and indicated for Sun to stop. Sun stopped approximately four metres from the vehicle. S Zhang and Z Zhang walked to the passenger side of the vehicle. At this point, it was clear that Z Zhang and S Zhang were the facilitators of the supply of the prohibited drug and were in control of the transaction. Z Zhang entered and sat in the rear seat behind the driver's seat. Sun walked to the vehicle carrying a brown paper bag and entered the rear passenger seat of the vehicle. Liang walked towards the vehicle, however, hesitated and stopped metres from the vehicle and stepped backwards before S Zhang indicated for Liang to walk to the vehicle.
As he was doing so, S Zhang walked to the eastern wall of the car park out of view. Liang approached the vehicle and handed Sun a brown paper bag through the open door and walked towards the vicinity of S Zhang, who was standing near the eastern wall of the car park.
Sun handed the two brown bags to the undercover operative who was then seated in the driver's seat. During this transaction, Li Wang and Z Zhang were present in the vehicle. Li Wang and the operative then exited the vehicle. At this point, the Tactical Operations Unit intervened and detained the offenders and arrested them.
The relevant provisions were complied with. Located within each brown paper bag was 997.2 grams in one bag and 999.7 grams in the other bag of methylamphetamine. Also located in a grey bag were five BlackBerry smart phones. The investigation revealed that Li Wang is a facilitator and a distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates to be used for the purposes of avoiding detection from law enforcement agencies. Li Wang earned $200 per device at the sale price of $2,200, and $10,000 for the supply of 1 kilogram of methylamphetamine. Would I be correct in suggesting, Mr Crown, that that figure cannot be right? The previous suppliers of roughly half a kilogram received payment of $60,000 in one case and $66,800 in the other case. That would seem to indicate that a kilo of methylamphetamine would have a sale price, as far as Mr Li Wang is concerned, in excess of $100,000. I think there is a typographic error. DICKINSON: Your Honour again, I haven't basically aware, I haven't been in this matter previously. If I may just turn my back for one moment to speak to the officer in charge? HIS HONOUR: Yes, certainly. DICKINSON: Your Honour, I've clarified with the officer in charge that $10,000 is the payment that Mr Wang receives, not the total sale price. ORYA: That's so; I can confirm that is the case. HIS HONOUR: Right, I'll just simply repeat.
Li Wang earns $200 per device at the sale price of $2,200 and $10,000 of any money paid in respect of the supply of 1 kilogram of methylamphetamine.
ORYA: Yes, your Honour, that's right, I can confirm that.
Li Wang, Z Zhang and Sun were conveyed to the Surry Hills Police Station where they were interviewed. Li Wang refused to answer most questions asked by the detectives, as was his right.
In respect of the offence on 31 October 2014 of supplying a prohibited drug, being 31.64 grams of methylamphetamine, I find that the offence falls below the midrange of objective seriousness, and towards but not at the bottom of the midrange of objective seriousness, taking into account in particular the quantity involved of 31.64 grams.
In respect of the offence of supply not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine, being the composite of a number of individual supplies of approximately half a kilogram, over the period from 21 March 2015 to 28 April 2015 by the offender to the undercover operative, in respect of which it can be reasonably anticipated from the facts that whatever was paid for the three supplies, the offender would have been expected to profit by $15,000, calculated at $5,000 per half kilo. ORYA: Your Honour, I thought it was agreed that it was $10,000. HIS HONOUR: That's per kilo - he got $10,000 per kilo. On these occasions he supplied half kilos, so his expectation on those figures would be a total of $15,000 for roughly one and a half kilos at $5,000 per half kilo.
On each occasion, whatever be his profit or cost, it is clear that the offender was involved in a significant supply of a prohibited drug which has become notorious in recent years for the adverse effects that it has on individual users and the adverse effect that that inevitably has on the community as a result of the drug users. The legislation does not provide for any distinction between prohibited drugs other than by quantity. The quantities involved here are significant; the combined three supplies are not less than a large commercial quantity. The seriousness of such offending is reflected by the provision of a maximum sentence of life and a standard non-parole period, although more strictly applicable in relation to a defended matter, of 15 years.
Methylamphetamine in recent years has penetrated all levels of society and all geographic areas of New South Wales, whether it be cities, towns or country villages. There are now an extensive number of matters that come before the District Court whenever it does circuits in country areas that have some relationship to the use or supply of methylamphetamine. It is well known that it can cause drug-induced psychosis and paranoia, and it is well known that users who are adversely affected in that manner are known to engage in violence for no ostensibly good reason, even without provocation. The drug has become a scourge on our community.
A large commercial quantity covers everything from 1 kilogram to whatever it might be. Accordingly, the quantity of the drug is relevant to this particular charge, as it may be very significantly in excess of the amount here. Nonetheless, almost one and a half kilos of methylamphetamine is a very substantial quantity, and in view of the facts, reflecting the three small supplies and the offender's role as the principal in those supplies, I am of the view that this matter is at least at the midlevel of objective seriousness.
As to the further offence of supplying not less than a large commercial quantity on 14 May 2015, being 2 kilograms of methylamphetamine, in relation to which, in the evidence before the Court, the offender was anticipating profiting by some $20,000, approximately, I am of the view that the quantity, being more than twice the threshold for a large commercial quantity, and the role played by the offender indicates that the objective seriousness of the offence is greater than the midrange of objective seriousness. Both the maximum term of imprisonment of life and the standard non-parole period of 15 years are indications that the legislature regards such offences as being very serious in nature.
In respect of the two offences involving large commercial quantities, I note that the pleas of guilty were entered in the Local Court on 7 September 2016, which is a plea at the earliest opportunity, and the offender is entitled in each case to a discount of 25% for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383. If separately sentencing for the matters contained on the Form 1, in each case I would have also applied the same utility discount.
The offender has now been in custody since 14 May 2015 and was in custody in respect of the supply on 30 and 31 October 2014 before being bailed that day. Accordingly, any sentence of imprisonment would start two days before 14 May 2015 to take account of the earlier two days of custody.
A significant factor in relation to the offender is that having been charged in respect of the supply of 31.64 grams of methylamphetamine on 30 October 2014 and bailed; he committed all of the further offences while on bail for that offence, the further offences being between 21 March 2015 and 14 May 2015.
In respect of the later offences committed while on bail, there is a long line of authority that this is a serious aggravating factor, as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465: "The protection of the community from those who abuse their liberty on bail to commit further offences calls for severely deterrent sentences which will ordinarily involve a significant accumulation of the sentence for subsequent offences on top of the sentence to be passed for the original offence."
That principle is of course only relevant in relation to this particular matter.

Subjective Matters

The offender did not give evidence on sentence. At the time of the offending he was between the ages of 30 and 31, and he is now 33 years of age. As previously referred to, the offender was previously dealt with in December 2011 at the Downing Centre Local Court in respect of an offence of dealing with property suspected proceeds of crime, an offence committed between 9 March and 12 March 2011. He was sentenced to a term of imprisonment of 12 months with a non-parole period of seven months, resulting in his being released on parole on 20 July 2012, subject to supervision.
A past offence of dealing with property suspected of being the proceeds of crime, which, in view of his lack of criminal history at the time of the offending, must have been of some significance to result in a term of imprisonment of 12 months with a seven month non-parole period in the Local Court. That is of course the matter that I previously referred to, having been provided with a statement of facts contained in the Crown bundle relating to the supply of 31.64 grams of methylamphetamine. Those facts disclose that the offender Li Wang had paid for two rail tickets in cash, being a total of $6,000 for a one way trip in Gold Deluxe for two adults from Perth to Sydney. He was accompanied by a co-offender. They took some suitcases with them on the train.
They created some suspicion in railway staff during the trip to Adelaide on the Indian Pacific, only ordering room service and wearing the same clothes throughout the three day trip despite large bulky suitcases and backpacks which appeared heavy to move. The information was passed onto the authorities and when they arrived on 12 March 2011 at Sydney Central Station they were identified by waiting officers, and in each of the offender's suitcases large sums of cash sealed inside plastic vacuum bags were discovered, most of the denominations being $100 notes and $50 notes. There was musty smelling dirt between the currency notes. The total sum was counted and found to be $2,517,400. The offender Li Wang also had a further total of $6,945 inside his backpack.
It is not difficult to understand in those circumstances the sentence that was imposed in the Local Court, although it might be difficult to understand why it was thought appropriate to have it dealt with in the Local Court. It is past history and its only relevance here is that the offender has a previous conviction for dealing with the proceeds of crime, and one of the offences to be taken into account on a Form 1 is of the same nature, being in respect of $94,120.
There is no Pre-Sentence Report. Tendered on behalf of the offender is a psychological report from John Machlin, dated 9 March 2017, a translated letter from the offender's mother, Yunna Wang, who at the time of writing the letter, which is undated, was apparently an inpatient at hospital, complaining about his absence from home for two years and expressing how much she misses him. There is no indication in the letter that she is aware that her son has been charged with any offence. It can reasonably be interpreted as a mother's plea for him to return.
There is a further translation document, being a document from the Sichuan Chengdu Number 7 Peoples Hospital, being a diagnosis report in relation to Ms Wang, who is aged 61 and was then in the cardiology department. She was apparently admitted because of repeated occurrences of heart palpitations, chest tightness, an unusual heartbeat and breathing difficulty.
Her arteries had hardened and narrowed, resulting in the blockage and insufficient blood to support her cardiac muscle, which in turn caused an abnormal heart rate which exposes her to a risk of heart attack. The document relates to an admission on 20 January 2017. The suggestion from the hospital, in order to assist Mrs Wang, was that close family members should stay with her and take care of her in case of any mishap. I accept that the offender's mother has difficulties as indicated by the report, however the offending conduct here is of a very serious nature, and any difficulties the offender's mother may have had, or may be having, cannot have any significant impact in relation to the sentence to be imposed.
The psychological report of Mr Machlin provides some background. The offender is from Chengdu, China. His parents apparently separated before he was born, and he was the only child, remaining in his mother's care but being raised by his grandparents. To support the family his mother worked as an accountant in another province where the pay was higher, returning home only once a year for a week. It is understandable, as expressed, that he looked forward to his mother's visits and was upset each time she left, however as I understand it this is a very common practice in China, particularly in relation to those that live in rural areas where mothers and fathers travel to the cities in order to obtain more gainful employment.
His grandparents both died in their 60s while he was still in primary school, and thereafter he attended boarding school while his mother continued to work remotely. He left home in 2004, aged 20, to study in Australia. He obtained permanent residency in 2013 and he has made many trips back to China to visit his mother, who is now retired. She is said to have previously undergone treatment for breast cancer and to also have a debilitating back condition.
He has had a number of relationships, the longest being for two years, and at the time of his arrest in 2015 he had been in a six month relationship with a Chinese woman who was awaiting permanent residency. They were planning to marry in 2016. The relationship was terminated as a result of his incarceration. He has no dependents. He is said to have been an average student in primary school with no specific learning difficulties, few friends and he was a victim of bullying, particularly because he lived with his grandparents and because he has a genetic condition causing him to have yellow teeth, which he subsequently had treated by the application of a veneer when he was 22.
He boarded throughout high school and inevitably had a sense of loneliness and realisation that he must then manage independently. He has said to the psychologist that in 2004, having arrived in Australia, he was to study business at the University of Wollongong and had more success in making friends. He completed a diploma in Wollongong and then switched to hairdressing, which was a preferred qualification then in applying for residency. He completed his Certificate III at the Carrick Institute in Sydney in 2007/2008, and worked as a hairdresser in a salon in Chinatown for two years until the end of 2010.
After his release from custody in 2011, he worked as a tour guide for Chinese travellers for six months before joining a real estate company selling residential properties to the Chinese market, and for that purpose he from time to time travelled back to China. The competition was tough and the income insufficient, which is why he turned to selling encrypted BlackBerrys, which was a more profitable concern.
He has no particular adverse medical conditions, nor does he take any prescription medication. There is no family or personal history of mental health issues. He consumed alcohol three or four nights a week, usually enough to feel drunk throughout much of his adult life. He has used cannabis and ecstasy recreationally on weekends since the age of 21. At 26 he started using cocaine, which gave him a euphoric and relaxed feeling. In 2012, at 28 years of age, he was introduced to methylamphetamine or "ice". Although it made him feel strong and invincible, he suffered from the paranoia that followed. He has tried to stop but could not. He used several times a week. He has never partaken in drug treatment or rehabilitation, although he claims to have avoided the use of drugs while in custody.
In relation to this offending he claimed he was pressured by his supplier, who had "gangster" links, to participate on the promise it would only be for a short time. He said he did not go to the police as a result of this because he did not feel it would be safe to do so.
He continues to speak to his mother every ten days or so by telephone. While in custody he had been attending the Buddhist chaplaincy services and doing meditation until these were cancelled due to budgetary constraints.
When asked to reflect on his wrongdoing, he related his understanding from his own experience that drugs are harmful, and he accepts that drugs were spread as a result of his actions. He claims that he would not do the same again even if he was threatened, and he vowed never to use drugs again.
I note that these are self-serving statements made to a psychologist which have not been the subject of sworn evidence, subject to cross‑examination, which might allow the Court to make its own assessment as to the lesser role he claims he played, or whether he is remorseful or contrite in respect of the offending.
While his plea of guilty in respect of some of the offences was at the earliest opportunity, those offences were in fact committed while he was on bail for the first offence, committed on 31 October 2014. In those circumstances it is difficult to accept that any untested statement by him as to remorse or contrition or a vow never to use drugs again has been genuine. He is said to speak fluent but broken English, and impressed as being of sound intelligence and being grounded in reality, with no sign of perceptual disturbance or discordant thoughts. He is said to be experiencing pervasive mood and anxiety symptoms "which are likely to be causing significant distress and impediment to daily functioning". He is said to meet the criteria for a substance use disorder in remission because he is now in custody, and he is also said to currently fit a diagnosis of adjustment disorder with mixed anxiety and depressed mood. However, such reactions as anxiety and depression are common results from being in custody awaiting sentence in relation to a series of very serious offences, and are hardly surprising or unusual.
There is no explanation contained in the psychological report which might relate to any causative factor in his commission of the offences, other than of course his use of prohibited drugs and his desire to support himself by way of profiting from the supply.
For the purpose of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. In sentencing the offender, the sentence must reflect the objective seriousness of the offence and that must be reflected by any time the offender spends in custody. As well, the sentence must also reflect the need for both general deterrence and special deterrence, as well as the fundamental purpose of punishment, the protection of society. In relation to this offender it is clear that both specific deterrence and general deterrence are very important factors to take into account.
I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no alternative to any penalty other than imprisonment. Indeed, to reflect the seriousness of the offences and the offender's conduct in respect of them, any penalty imposed must be a significant one in order to deter others from believing that they can profit from criminal offending of this nature.
As I intend to proceed by way of an aggregate sentence, I am required to express the indicative sentence in respect of each of the three offences.
The indicative sentence in respect of the offence of supply a prohibited drug, being 31.64 grams of methylamphetamine on 31 October 2014, is a term of imprisonment of 30 months.
In respect of the offence of supply not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine between 21 March 2015 and 28 April 2015, the indicative sentence is ten years. As it has a standard non‑parole period, I am required to express the non‑parole period that would have been applied if that sentence was to be given individually, and the non‑parole period that I would have provided is seven years and six months. That indicative sentence also takes into account the supply prohibited drug offence, 27.95 grams of cocaine, contained on the Form 1.
In respect of the offence of supply not less than a large commercial quantity, being 1,996.9 grams of methylamphetamine on 14 May 2015, also taking into account the matter on the Form 1, knowingly deal with the proceeds of crime, being $94,120, the indicative sentence is 12 years with a non‑parole period of nine years.
The aggregate sentence in relation to all of those matters, taking into account all of the matters that I have referred to and also taking into account the need for some accumulation, as well as the principle of totality as referred to in Pearce v The Queen [1998] HCA 57, is a non‑parole period of ten years and a balance of term of three years and six months, giving a total sentence of 13 years and six months with a non‑parole period of ten years.
I have not found special circumstances, but I have rounded down the non‑parole period by one month and 15 days simply to ten years. The sentence will date from the date of his arrest on 14 May 2015. The ten year non-parole period will expire on 13 May 2025. The balance of term, which is three years and six months, will expire on 13 November 2028. Mr Li Wang, you are of course convicted in relation to each of the offences. You will be first eligible for parole on 13 May 2025. If you are released at that time, or at some later time when released, you will be subject to parole until the total sentence expires on 13 November 2028. I have no doubt that you would understand that your release on parole will depend very much on your performance while in custody because it is not automatic; it is a matter for the authorities to determine, and I have no doubt you would understand that when released on parole, if you commit a breach of the terms and conditions of parole, you will no doubt be returned to custody to serve the balance of parole. Mr Crown, there are a number of matters contained on a 166 certificate, being goods suspected of being stolen in or on premises, not motor vehicle, being the BlackBerry phones, dealing with property suspected proceeds of crime, being $2,000, and dealing with property suspected proceeds of crime, being the backup charge in relation to the $94,120. Each of those is to be withdrawn and dismissed? DICKINSON: That is true, your Honour. Would it be beneficial for your associate for me to provide the sequence numbers? HIS HONOUR: That would be helpful, yes, thank you. The sequence numbers I know are 1, 3 and 5. DICKINSON: Correct, that's in relation to charge number H240252594 and those are the three sequences to be withdrawn. I also have some confiscation orders to seek as well, if I may hand those up. HIS HONOUR: I should also indicate in relation to not finding special circumstances that the potential period of parole provided is some three years and six months, which in itself is a substantial period, and in fact six months more than the period of maximum parole supervision as provided by the regulations. Do I take it there is no objection to this? ORYA: No objection, your Honour.
HIS HONOUR: I order: 1. Pursuant to s 18(1) cash in the approximate sum of $94,120 found at unit B 505 at 339 Sussex Street, Sydney, on 31 October 2014 be forfeited to the State. 2. Pursuant to the same section cash in the approximate sum of $2,050 found on the person of the offender on 30 October 2014 be forfeited to the State. 3. Pursuant to the same section the mobile phones, SIM cards and packaging listed in Schedule 1 to the Short Minutes of Consent order, found at B/505 at 339 Sussex Street, Sydney, on 31 October 2014, be forfeited to the State. DICKINSON: Your Honour, I also have a separate - apologies for the duplication - I have a separate Short Minutes of Order in relation to forfeiture of a motor vehicle if I may hand those up. ORYA: I've seen those, thank you, no objection.
HIS HONOUR: In respect of the Mercedes-Benz, I order pursuant to s 18(1) the proceeds of sale of the Mercedes-Benz 250 motor vehicle bearing registration number BSA-64G on 14 May 2015, together with all interest accrued and accruing be forfeited to the State, and I further order that pursuant to s 42Q(1), the freezing notice relating to the proceeds of sale of the Mercedes-Benz 250 motor vehicle bearing registration number BSA-64G, together with all interest accrued and accruing be set aside forthwith. It is not particularly relevant now, Mr Crown, but could you tell me what was the sale value? DICKINSON: I'm not sure that I could tell you in a short period of time, your Honour. HIS HONOUR: Well, depending on the age of the model, Mr Crown. It might have indicated that Mr Wang was living a lifestyle of some luxury. It does not necessarily follow just from the fact that it is a Mercedes-Benz but some of them are exceedingly expensive. Is there anything I have forgotten? DICKINSON: No, your Honour, thank you. ORYA: No, your Honour, thank you.

R v Wang

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Judgment (7 paragraphs)

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Cases Cited (3)

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