R v Wang [2024] NSWDC 629 | Case summary

B. Controlled delivery and conduct of the offender (12) The methamphetamine was removed from the consignment by US authorities and the consignment arrived in Australia on 17 February 2023. On Monday 13 March 2023, Federal officers were granted a controlled operation authority to conduct a covert operation in relation to the consignment. (13) Between 9 and 10 March 2023, the offender engaged in WeChat communications with Lin, arranging to attempt to take delivery of the consignment for delivery to Lin, including in which: (a) Discussion occurred concerning the offender's ID going missing. Lin asked whether the offender had a photo that he could retouch for him. (b) The offender sent Lin various documents with dates to save. (c) The offender asked Lin "Is the address left on yesterday's (a) address still different from the one on my ID?" (d) The offender told Lin that his ID fell on the ground yesterday when picking up the parcel and he forgot to put it back in his wallet after picking it up. He followed up by sending Lin a photocard that was taken a few years ago. Lin responded, stating that it must be an ID card. (e) Lin provided the following information to the offender. "5 Harrow Road, Bexley, NSW. Name: Yuheng Chen. Tel: 0404256945. Bill number: 346394792". (Lin's phone was also found by police to contain a fraudulent photo ID bearing the offender's photograph with the name Yuheng Chen, residing at 5 Harrow Street, Bexley, NSW.) (f) Lin told the offender "If it is the same person at the bar as the day before yesterday, you don't take it. Just in case he/she recognises you." (g) Lin told the offender the bill number from the post was a number starting with VLP and ending 805, corresponding with the HAWB number for the consignment, and told the offender to "keep his eyes on it" and that he had sent all the documents to the offender. (h) The offender sent Lin a photo of a Toyota RAV4. (i) Lin told the offender to meet him at 22 Brookhollow Avenue, with an image sent of the premises at that address, where Lin occupied a room. This was the address of where the offender had dropped off an earlier consignment. (14) On 13 March 2023, the offender rented a Toyota RAV4 but on the same day returned it and swapped it for a further Toyota RAV4 due to a fault in the vehicle. As proof of identity, the offender provided the car rental firm with a New South Wales photocard bearing his own name, a date of birth of 1 February 1989 and recording that he resided at a residential address in North Strathfield, NSW. He also presented a Commonwealth Bank Mastercard in his own name. (15) On 15 March 2023, CCTV footage from the Punthill Apartment Hotels, Norwest, captured the offender and Lin meeting together. The footage recorded the offender meeting Lin while holding an object, however the image was not sufficiently detailed to identify what the object being held was. (16) At about 11.26am on Thursday 16 March 2023, an AFP member purporting to be an Australia Post delivery driver attempted to deliver the consignment to the consignee address at 28 Jellicoe Street, Lidcombe. (17) At about 11.30 on the same day, the offender, who was then situated in the RAV4 nearby to 28 Jellicoe Street, Lidcombe, exited the car and approached the AFP member and requested possession of the consignment. The offender told the delivery driver that the consignment was "mine." He was asked if he was "Qi Lee" (the purported consignee). The offender responded "Yes" and provided a photograph of a New South Wales driver's licence in the name of Qi Lee with a photograph of himself. He also provided the number for the purported consignee of 0415921788 and took custody of the consignment from the undercover officer. (18) Shortly thereafter AFP members arrived and identified themselves, secured the scene and arrested the offender. He was cautioned. (19) AFP officers requested identification from the offender, and he produced a Club Burwood Group photo ID with the name Jinquan Wang, number 21603. He was then conveyed to Sydney headquarters. (20) While being conveyed, the offender's mobile telephone received incoming phone calls. The offender stated the caller was "Michael Ma". As the language displayed on the offender's phone was in Mandarin, AFP officers could not ascertain who was indicated as calling the offender and the calls were not answered. (21) Commencing at about 1.53pm, AFP members conducted a record of interview with the offender in which he indicated: (a) He met a person named Ma one week ago. (b) Ma asked him to pick up packages and deliver the packages to an address, as Ma was working and had no time to pick them up. (c) This was not the first time Ma had asked him to pick up packages. (d) This was the second consignment with the VLP number ending 805 (that he had been asked to pick up). (e) In return for picking up the first packages, he received "lobsters" which they ate at a hotel. (f) Ma did not mention any reward in relation to the second consignment. He just indicated whether he could drop it off to him as he was nearby. (g) He did this for no reward as he was scared of Ma. (h) When asked about the $2000 deposited into his bank account on that day, he said he could not comment about it, as he had not seen it. (i) He was told by Ma to pick up the consignment (VLP ending 805) and deliver it to the Punthill Apartment Hotel, Brookhollow Avenue, Norwest. (j) He is afraid of and feels threatened by Ma and as a result could not say no as he is quite cold and is a feared person. (k) He is not sure if Ma is part of the Mafia. (l) Ma did not threaten him as he did not refuse to get the parcel, but if he had refused then he thought Ma would have threatened him. (m) He knew Ma was dangerous and had a reputation among colleagues. (n) By "colleagues", he meant the Fukien people from China, back two or three years ago. (o) He does not know how Ma got his number and that he must have asked somebody for his number. (p) Ma must have picked his number because he is poor and stupid. (q) That he was told to pick up a parcel at the office in the express mail and he did not know what was inside. (r) He was told by Ma that his friend had sent him some clothes in the parcel. (s) He did not know the parcel contained something illegal in it. (t) He picked up the first package from TNT and delivered it to Ma. (u) Ma told him the first package contained a designer bag or clothing. (v) That he hired the rental car because his car was down as some parts were not working. (w) Ma said this was the last package as he did refuse him before as he did not feel good after the first package, as he was not too sure whether the content was the substance they had talked about. (x) He confirmed the identity of Ma after he was shown a photograph of Lin's driver's licence. (y) He resided at 68 Karrabah Road, Auburn, NSW.

Subjective Matters

Before the Court in respect of subjective matters is a Sentencing Assessment Report under the hand of Chloe Lidster, dated 15 July 2024. A report from Ms Mou In Li, psychologist with LL Counselling Pty Ltd, dated 20 November 2024. A letter to the Court from Jin Feng Ran, being an older sister of the offender, dated 20 November 2024. A letter from Qiong Yuan, dated 21 November 2024, being a person who has known the offender for six years. And finally, a letter to the Court, referred to in the index to the material as a letter of apology, that letter being dated 25 November 2024. I note that the offender tendered the letter in lieu of giving evidence on sentence, so that nothing that he said in the letter could be the subject of challenge or exposition by cross-examination. However, the letter was not objected to by the Crown. There is a question of what weight can be placed on it in those circumstances.
From the information provided by the offender contained in that documentation, he was born in China and grew up there. He has had no previous medical or psychiatric history. He completed Year 10 in China at the age of 16 and then worked for about three years before returning to study vocational education for another three years, the equivalent of TAFE, before entering fulltime employment. Before this incident and his subsequent imprisonment, Mr Wang is said to have worked as a painter for five years. I note there is no reference that has been provided which indicates that he has at any time been employed in Australia, or elsewhere, for that matter.
Ms Li repeats matters stated to her by the offender. That is, that the person known to him as Ma was his friend, and he had the impression that his friend was affiliated with a gang. That he, the offender, was unaware of the parcel's contents and that he regretted his involvement. He also indicated that he was a regular user of methamphetamine and an occasional cannabis user.
Ms Li administered the Raven's Standard Progressive Matrices (SPM) and the Depression and Anxiety Stress Scale (DASS). The SPM is a clinical instrument used to assess a person's capacity for analysing and solving problems, abstract reasoning and ability to learn. His cognitive function was assessed as being in the fourth percentile which is a very low cognitive functioning level. Persons with that level may have trouble with memory, language and judgment.
DASS is a clinical instrument used to detect three related negative emotional states: depression, anxiety, and stress. The results of the DASS indicated that he suffered from severe depression, extremely severe anxiety and moderate stress. I note of course that the testing, for the purpose of providing a report to Court, was carried out during a period when he had been charged with a very serious offence but had not yet appeared before the Court for sentence. That, in itself, will normally result in offenders suffering from depression, anxiety and stress.
Ms Li reports: "Mr Wang's mental health condition and reduced ability to reason abstractly, may have significantly impacted his decision-making processes. Specifically, his low cognitive functioning could contribute to a lack of careful consideration before making choices which can manifest as recklessness." (Emphasis added) I note the equivocal nature of the opinion by the inclusion of words such as "may", "could", "can". She goes on, later in her report, to state: "Mr Wang's psychological profile indicates a complex interplay of mental health challenges and situational pressures. His severe anxiety and depression likely contributed to his impaired decision making at the time of the offence. Additionally, his low cognitive functioning may have affected his ability to critically evaluate the risks associated with his actions. The influence of his friend, coupled with his fears about gang affiliation, further complicated his judgment. Mr Wang acknowledged that he acted impulsively, failing to think critically before agreeing to help." (Emphasis added)
I note, again, the equivocal nature of the opinion expressed, as "likely contributed" and "may have" affected his ability to critically evaluate the risks.
She assessed his likelihood of reoffending as appearing to be low.
In his letter to the Court, the offender indicates that he holds a certificate from China (being the equivalent of a TAFE certificate) in respect of hospitality, and that he has in the past worked as an interior renovator and painter. It was, while carrying out that work that a coworker "promised a better job than my current work as a painter."
His older sister refers to him as being an enthusiastic and cheerful boy, treating others with patience and sincerity and a hardworking man who has helped support the family in China by sending back money. She believes him to have been a person of good character, but naïve. She states that, to her knowledge, he has no criminal record or bad habits in China and never had any disputes with the police and is a responsible person to his family and friends. She indicates that she will continue to support him in the future, and that he now fully understands the mistake he made; that he has vowed to start afresh.
In the letter to the Court from his friend who has known him since 2018, Yuan Qiong, he is referred to as a "kind, warm hearted and helpful person who is generally optimistic, hardworking and simple individual." He also states: "I learned that he was undergoing some financial difficulties to which he then made some bad friends and was consequently misled into conducting unacceptable and illegal activity. He told me that he fully realises that, regardless of his financial difficulties, participating in drug-related stuff is a crime and he deeply regrets his actions."
In the Sentence Assessment Report, under "Attitudes", is the claim that: "Mr Wang stated that he was pressured and threatened into his involvement with drug trafficking and complied for his own safety."
He specified the threats included potentially being killed if he were not to comply, and under "Social Influence", Mr Wang identified: "He became associated with antisocial people through his coworkers." And under "Financial": "It appears at the time of the offence Mr Wang was struggling with financial stresses due to him engaging in gambling activities. He stated he would gamble a lot of his income at the time...he expected to receive roughly $6000 when he decided to comply with collecting the parcel."
There was a problem in trying to gauge his insight into the impact because of his limited English being a barrier, and he "continued to identify that he was scared and fearful of the associates. He appeared to view himself as the victim of coercion, believing they may have caused him harm if he did not comply with their request." He was assessed as a medium/low risk of reoffending. It has been noted that throughout the offending period, the offender was liaising with Lin.
The principles relating to sentencing in respect of matters such as this were set out in R v Nguyen, R v Pham 2010 (205) A Crim R 106. They include that: "The criminality of an individual offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. R v Lee at [27]"
There can be danger in categorising the role of an offender as, in many cases, the full nature and extent of the enterprise is unlikely to be known to the Court. And the fact that any person may be considered to be more involved than the offender, does not mean that a person who was responsible for taking a significant role in the importation can be properly described as having a lower level of responsibility. R v Lee [2007] NSWCCA 234 at [26]
Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is nevertheless a relevant factor. Wong v The Queen (2001) 207 CLR 584 at [64], R v Lee [2007] NSWCCA 234 at [23]-[24].
In this matter the pure weight of the methamphetamine which had been concealed in the consignment was 1549.6 grams. That is twice the commercial quantity specified by the legislation and is certainly a quantity that has a significant value, and when distributed in the community is likely to have significant adverse effects on the community.
In that case it was also stressed that: "As a matter of commonsense it should be inferred, unless there was evidence to the contrary, that a person who was involved in importing drugs is doing so for profit."
In this matter there is the evidence of $2000 being transferred into the offender's account on the day of his involvement, collecting the package, and at least his acknowledgement to the sentencing assessment officer that he was expecting to receive $6000 for his participation.
In terms of sentencing for matters such as this, deterrence must be given chief weight and stern punishment is warranted in almost every case, particularly because a signal must be sent to would be drug traffickers that the potential financial rewards to be gained are neutralised by the risk of severe punishment. Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
Prior good character of a person involved in drug importation offences generally is to be given less weight as a mitigating factor on sentence. Good character is not an unusual characteristic of persons involved in drug importation. In particular, as I have previously referred to, it seems to be that good character is an essential aspect of a person being arranged to do a pickup of a postal package because of the inevitable result that, if detected, they are likely to get a much less significant sentence than someone with a history of offending.
The fundamental principle in respect of sentencing for Federal offences is that the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence." (s 16A(1) of the Crimes Act). S 16A(2) of the Act requires the Court to take into account a number of factors and the legislation provides that: "A Court may only impose a sentence of imprisonment in respect of a Federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances."
I note, in this matter, that it is the Crown's submission that there is no alternative but a sentence of fulltime imprisonment and that was accepted by Mr Ye, barrister, on behalf of the offender, although there is some disparity between what each has suggested as being an appropriate range.
S 17A of the Act requires: "A Court will not pass a sentence of imprisonment unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
I will indicate now that I am satisfied that no other sentence is appropriate in all the circumstances of this case.
There is limited evidence in this matter as to the extent of the syndicate being investigated by the AFP. There was clearly another more senior person, namely Lin, who provided the information and instructions to the offender and to whom the offender was ultimately intending to transfer custody of the package. The role played by the offender was, however, nonetheless an important role in relation to the importation.
He liaised with Lin in relation to the creation of false identification that would permit the offender to claim he was the intended recipient of the consignment. When he reported to Lin that he had lost his ID, he provided a photocard to Lin (for him to retouch). He received instructions in relation to the collection and delivery of packages, including not to take an item if the same person was "at the bar" just in case he was recognised. He attended the intended consignee address to intercept the consignment by waiting in his hired vehicle in the near vicinity and presenting himself when the delivery was to be made. He took possession of the consignment, while claiming that he was in fact the consignee, and producing false documents to support that claim. He was clearly an individual trusted to be able to complete that particular role, which was a significant role in relation to the final extraction from the postal service of the drugs.
While the offender's involvement was limited conduct, occurring over the course of just over a week, and at the direction of Lin, there was a degree of sophistication and planning to his conduct. He was equipped with false identification documents in the name of the consignee and he used his own identity documents as a base for those false documents, anticipating the need to perfect his claim of being the intended consignee.
While there is no evidence that the offender knew the nature of the drug or precisely how much methamphetamine was contained in the package, it is evident that he was, at least, to receive some $6000 for his role. That may be a small sum in relation to the potential value of 1549.6 grams when sold in the community on a retail or user basis.
The offender, by his plea, has at least accepted that he was reckless as to the fact that the substance he attempted to possess was a border-controlled drug. While the offender claimed in the record of interview that he was simply collecting the packages for Ma, because Ma was too busy to collect them himself and that he was not aware of anything illegal inside the packages, the offender was explicitly instructed not to collect anything if he recognised someone from the previous occasion, in case he himself was recognised. He also collected packages where the consignee was not Ma and he knew this was so because he was representing himself to be Qi Lee, to whom the package was addressed. He provided his own photocard for the purpose of it being retouched and he was aware that his identification had been modified to use his details but with a different name, being that of the consignee.
He also stated that he believed Lin to be involved in the "Mafia" and to have criminal connections. I would take it that if he actually referred to the mafia, he was simply referring to believing that Lin was a member of an organised criminal group, whether that be the Mafia or a triad or some other particular criminal group.
He himself arranged for the hire car to use to collect the consignment and deliver it to Lin. He had an image of a crystalline substance in a clear ziplock bag on his phone. He had an interest in securely obtaining the consignment, including possessing the relevant details of the consignment in his mobile phone notes, and accompanied by a message from Lin to "keep his eyes on it." I would assume that keeping his eyes on it was a reference to checking its tracking details as it passed its way through the postal service.
On his own account, the offender did not feel good after the first package, as he was unsure whether the content was the substance that was discussed, that is, designer bags and clothing. And, of course, the fact that he was to receive a significant financial benefit for posing as someone he was not, using false identification papers, must have inevitably led him to the conclusion that he was participating in a serious criminal offence. No one pays anyone $6000 to collect their mail from the post office unless there is something significantly at risk in doing so. His participation in the offending, in terms of the actual collection, was only for a matter of hours.
His offending may have occurred against a reported background of financial stress as a result of his gambling, and that may provide some explanation for why a then 34-year-old with no previous criminal history did what he did in relation to this offending, but it does not in any way excuse it.
There was, at least, some peripheral assistance to the Crown in that when shown Mr Lin's driver's licence, he acknowledged that that was the person he had previously referred to as Ma. Of course, it must have been obvious to him at that time that the authorities were well aware of his connection to Lin because they were able to produce the photographic licence to him on that occasion. However, I accept that it was of some assistance.
I accept that the material before the Court indicates that there is some acknowledgement by him that it was wrong for him to participate in this offence and that he has, at least, some insight into the impact of his offending on the broader community as opposed to simply himself.
I accept the assessment by Chloe Lidster of Community Corrections that the offender can be appropriately regarded as being a medium/low risk of reoffending according to the Revised LSI. That is particularly so in circumstances where he managed to reach 34 years of age before being detected committing a serious offence.
It has been argued on his behalf by Mr Ye, barrister, that there is evidence that supports a finding that his conduct was the result of non‑exculpatory duress and that his mental health condition should reduce his level of moral culpability. In respect of his mental condition and the report of Ms Li, it is necessary, in order to be successful in arguing that non‑exculpatory duress reduces his moral culpability, that the offender demonstrate at least on the balance of probabilities that non-exculpatory duress should operate to have that effect.
Having carefully read the report of Ms Li and the other material provided by the offender, I find Ms Li's report is highly equivocal and substantially affected by her use of conditional terms, such as likely, may, could, in relation to his mental health condition that, in my view, it does not operate to reduce his moral culpability.
In relation to the issue of non-exculpatory duress, I do not accept that the offender has demonstrated on the balance of probabilities that duress was a factor.
He referred to Mr Lin as his friend. He initially did not refer to being threatened in any way, but simply to having some fear as a result of his belief, accurate or not, that Mr Lin was associated with some significant level of criminal offending, referred to by the offender as the "Mafia". In part, he had indicated that he had expressed that he did not wish to participate in any further collection once he came to believe the very first importation, supposedly of designer bags and clothing, may not have been what he had been told, and that as a result he was not going to participate beyond carrying out the collection on this second occasion.
It is not suggested that, at any time, Mr Lin actually threatened him or that there was anything done by Mr Lin, of which he knew, which might suggest that Mr Lin was a violent person who, one way or another, would seek to extract vengeance on his friend for simply not participating in a further importation. So, I reject the argument that non-exculpatory duress is relevant.
Of course, the offender does have in his favour that he is now 35 years and approximately nine months of age and at least up to the time of this offending, when he was 34, he had no criminal history of any nature, even though, as the material indicates, that he was at least a user of prohibited drugs. And I accept that he was, prior to this offending, a person of good character. As previously indicated, that was something which, in fact, made him particularly likely to be sought out and to be engaged to carry out a role in this importation, those who employed him being able to rest assured that if detected and charged, he was likely to receive a much lower sentence than otherwise.
In my view, the two small clip-seal bags containing a total of 1.8 grams of crystalline substance which relate to the charge contained on the 16BA schedule are not significant when compared with the s 307.5(1) offence, noting of course the manner in which those are traditionally dealt with under the New South Wales legislation, in accordance with the Attorney General's reference. In my view, offences of this particular nature are so common, despite being very difficult to detect, that it is important both for specific deterrence and general deterrence for a significant penalty to be imposed.
Accordingly, taking all those matters into account, I will sentence the offender for the offence contrary to s 307.5(1) of the Criminal Code (Cth), also taking into account the offence contained on the s 16BA schedule Form. I note there is no specific requirement for a relationship between the non-parole period and the balance of term, as is required under the State legislation. Nor is there any standard expectation as to what the difference between the non-parole period and the balance of term will be.
Accordingly, I have taken all those matters into account. I have reviewed the statistics that were supplied, and the cases supplied by the Crown, as well as making my own inquiries of JIRS. In my view, there is a reasonable prospect of rehabilitation, even though the offender has not made much effort, it would seem, to deal with his underlying problems of gambling and the use of prohibited drugs.
I will determine a sentence of six years' imprisonment with a non-parole period of three years and six months, backdated by 308 days that he has been in custody before achieving bail. The sentence will commence on 26 January 2024. He will be first eligible for parole on 25 July 2027. The balance of term is two years, six months, commencing on 26 July 2027 and expiring on 25 January 2030. So, I make an order for his release on parole on 25 July 2027. Now, is there any error or significant matter that I've left out, Madam Crown? BUNTING: Nothing arising, your Honour. HIS HONOUR: Mr Ye? YE: Nothing arising, your Honour. HIS HONOUR: Alright. Thank you.

R v Wang

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Judgment (11 paragraphs)

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