HIS HONOUR: Kar Wang Wat appears today for sentence in relation to an offence that alleged that he between 8 August 2014 and 29 August 2014 at Petersham in the State of New South Wales did knowingly take part in the supply of a prohibited drug, to wit, 218,764.5 grams of ephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug.
This is an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. It carries a maximum penalty of life imprisonment and/or a pecuniary penalty of 5,000 penalty units. There is for this offence a standard non-parole period of 15 years' imprisonment. The minimum amount of the drug ephedrine that attracts the maximum penalty and standard non‑parole period, that is, a large commercial quantity, is 5 kilograms. There are no other matters on a Form 1.
The prisoner pleaded guilty on the presentation of an indictment today, but he had been committed for sentence on 19 May 2015 from the Central Local Court. I propose to give him the benefit of a discount of 25% to represent the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomson and Houlton v R from 1999.
The prisoner, I am informed, was born on 6 June 1949. As I would understand it, he is now 66 years of age and would have been 65 years of age when he committed the crime with which I am presently concerned. I have an agreed statement of facts which shows that a 'multi‑agency' investigation group was set up to investigate criminal activities of foreign nationals. The prisoner and another man called, Wei Pao Chu, were,
"suspected to be a shore party for a transnational criminal syndicate who recently took possession of a 940 kilogram consignment of garden pots from China which were later found to contain the quantity of the prohibited drug ephedrine".
The inelegant expression in para 2 from which I read refers to a state of affairs shortly after the investigation came to a culmination with investigators on 29 August 2014 executing a search warrant at a storage facility at Petersham, hence the particulars in the indictment. However, the agreed statement of facts provides a deal of history prior to the execution of that warrant and prior to the arrest of the prisoner on 8 October 2014, when he endeavoured to re‑enter Australia through Melbourne airport.
On 23 May 2014 the prisoner flew into Melbourne from Hong Kong using a Hong Kong passport. Within three days he registered a company under the name Hong Far Pty Ltd, with himself listed as sole director, member and secretary. Having set up the company he departed Melbourne for Hong Kong on 4 June 2014. On 23 July 2014 the prisoner returned to Melbourne from Kuala Lumpur in Malaysia. He used the same Hong Kong passport for this journey. On 6 August 2013 the corporation Hong Far Pty Ltd transferred US$35,000 to China, to a company named "Hundred Year Yuan Yeung Supply Chain" at a business address in a free trade zone in China, that is, outside Hong Kong Territory.
The AUSTRAC records show an address at Box Hill as being the registered address for Hong Far Pty Limited. On that same date, that is 6 August 2014, the prisoner signed a Residential Tenancy Board bond authority and lodged $A2,281 in cash with a real estate agent as bond for the unit at Box Hill, the address given as the registered address of the 'Hong Far' company. The rental agreement was for 12 months with a monthly rental amount of $A1,564. The prisoner on 6 August 2014 made an initial payment of $4,692 in cash to the real estate agent for the first three months rental of this property, that is, up until November 2014.
On 8 August 2014 the Hong Far corporation received a consignment in a container that had been sent from China described as 940 kilograms of bowls and garden pots. The relevant ABN number for the consignment was set out in the facts. The man, Chu, flew into Sydney from Hong Kong on 19 August 2014. Chu used a Canadian passport for this journey. The prisoner, it would seem on the facts, was up until this time in Melbourne. However, on 22 August 2014 the prisoner and Chu attended the Petersham office of Kennards Self Storage and rented a particular storage unit at Petersham with the number J4. The prisoner provided the Hong Kong passport to which I earlier referred as identification and listed a particular mobile telephone service's contact number. It would be no surprise to understand that Vodafone records show that the telephone number is subscribed in the name of a different person, Yu Zhang, with an address in Auburn. Investigators are unable to identify any person matching this name recorded as living at the registered address for the mobile phone service.
Kennards' staff at Petersham reported that the prisoner and Chu and other persons were seen at the unit, J4, on a daily basis from 22 August 2014 up until but perhaps not including 27 August 2014. A truck load of timber crates was delivered to the unit on 24 August. They were stacked at the entrance of the unit obstructing an outsider's views of the interior of the unit. Between 25 August and 27 August the prisoner and Chu were observed at Kennards at Petersham going to and from the particular unit and there were sounds of banging, hammering and items being moved regularly from within the unit.
A review of CCTV footage of the self-storage units between 22 August 2014 and 29 August 2014 showed that CCTV footage did not cover the entrance to Unit J4 but covers other areas. The prisoner was clearly shown completing the rental agreement on 22 August and was seen to be wearing distinctive clothing on 25 August as was Chu. The prisoner was also shown on CCTV footage at Kennards wearing distinctive clothing on 26 August 2014. On 29 August 2014 Chu departed Australia for Hong Kong and the prisoner departed Australia for Kuala Lumpur.
Police executed a search warrant on 29 August, it would seem after the prisoner and Chu had left the country and inside they found a large number of cardboard boxes which had been emptied. Approximately 100 ceramic bowls were stacked on the side of the storage unit which appeared to have had false bottoms broken off. Several ceramic bowls had a white residue substance on them. A presumptive test was conducted identifying traces of pseudoephedrine. Four of the ceramic bowls were located with the false bottom still intact. A small piece of paper was also found which had on it the container number for the consignment. Ultimately police seized 218,764.5 grams of ephedrine along with a number of cloth gloves and tools used to break open ceramic bowls. A number of DNA swabs were taken from the scene for forensic testing and of course the distinctive clothing worn by the prisoner and Chu as depicted in the CCTV footage was also seized from the storage unit. A first instance warrant was issued for the arrest of the prisoner on 8 October 2014 in respect of the alleged supply of a large commercial quantity of a prohibited drug ephedrine. On 8 October 2014 the prisoner was stopped at Melbourne Airport and was arrested by Melbourne Airport police and was subsequently extradited to New South Wales a few days later.
The prisoner when in New South Wales' custody participated in an electronically recorded interview having had his Part 9 rights read to him, but he answered what were described in the agreed facts as "minimal questions surrounding the offence". He consented to a forensic procedure. In 2015 the prisoner sought to speak to investigating officers. They met with him twice. He nominated an individual as being "the guy in charge" but this person was already known to police and the accused could not give any further details of assistance to the police. No submissions have been put to me that I should accord the prisoner any "discount" for past assistance and in fact no real or any assistance has been provided to the authorities.
Part of the documentation contained within the Crown bundle includes the results of scientific examination of the scene as well as a statement from a qualified member of the Australian Government "National Measurement Institute". That report states:
" … the theoretical yield of methylamphetamine base obtained from a given quantity of pure ephedrine is calculated using stoichiometric relationship between the precursor and the product methylamphetamine".
The amount of pure ephedrine found in this case 156,530.9 grams in theory can produce 140,877.8 grams of methylamphetamine base, or 176,097.3 grams of methylamphetamine hydrochloride. The statement sets out in greater detail aspects relating to the production of methylamphetamine base and/or methylamphetamine hydrochloride by the use of ephedrine as a precursor. The fact that ephedrine is a precursor for the manufacture of methylamphetamine is not disputed and is well known. Hence the recognition of the quantities in the schedule to the Drug Misuse and Trafficking Act of relevantly commercial and large commercial quantities of that drug.
I point out in the context of assessing the quantity of either pure drug in this case, or the gross weight as is required to be considered under New South Wales law, the minimum quantity of methylamphetamine simply stated as a large commercial quantity is 0.5 of a kilogram, but for this particular drug it is, as I said earlier, 5 kilograms. I have already pointed out the prisoner is a person now 66 years of age and he has no prior criminal convictions. He has not given evidence before the court.
I have had produced to me a psychological report and other material relating to the health of his wife, a reference from his wife, a reference from Corrective Services Industries concerning his current employment within the prison system and a reference coming from "Will Sky Capital Company Limited" stating that the prisoner was an employee of that corporation between 13 December 2008 to 25 January 2013 earning an average monthly income of $18,500 Hong Kong. I think it was generally agreed in discussion about matters raised by the prisoner in the history given to the psychologist that approximately five Hong Kong dollars equals one Australian dollar.
With regard to the history given to the psychologist I am prepared to accept some of the detail in that which, for want of a better expression, would appear not to be controversial. That is concerning the prisoner's place of birth and some details concerning his personal circumstances. But one has to consider the history he has given in relation to the commission of the offence with which I am concerned in the context of the facts as they are established from the agreed statement of facts and noting of course that the Crown has not had the opportunity to cross-examine the prisoner and test the account that he has given. From the history contained within the psychological report it is to be noted firstly that he was raised in Guangzhou and he was the only child of his parents, his father has been dead approximately ten years. His father and mother both were in employment. His education was apparently terminated by the onset of the Chinese cultural revolution occurring in the early to mid-1960's and he claims to have attended only six years of formal schooling, although the history he gave did not accord with the reporter's "time line" for the onset of the Chinese cultural revolution and the age that the prisoner gave.
Be that as it may, he eventually travelled to Hong Kong and had various, it would appear, menial tasks and basic clerical tasks. He was generally employed he claimed until about three years ago. He has had two marriages. His first marriage produced a daughter that he said is now aged 30 and a son aged 26. That marriage lasted 20 years. His second wife is a person who in April 2014 was diagnosed with bowel cancer. He said in the history that he gave he lost contact with his children after his divorce from his first wife.
He does not drink alcohol very much and is not addicted to drugs or dependent upon drugs. He has no criminal history in New South Wales nor apparently in China or Hong Kong. He suffers from a form of Type II Diabetes, controlled by tablets in the usual way and he has some arthritis and gout. He has no background of mental illness, he has no intellectual disability, has not suffered any significant trauma or head injury in his life.
With regard to the account he gave for his involvement in the offence the only account is of course that which is given to the psychologist. He said that his reason for committing the offence was because of his financial situation deteriorating from being out of work and the fact that his wife had been diagnosed with bowel cancer. He claimed that "within China there is a limited public health system" and he was the person who would have been required to fund his wife's treatment. He claimed that he first of all was offered HK$50,000 to assist with setting up an import/export company into Australia for "individuals he was introduced to via an old school friend". He claimed that he initially understood the goods were to be imported as crockery items, however, to the psychologist he was "unable to provide a clear timeline in relation to his activities" and the psychologist "formed the opinion that he was maintaining a level of defensiveness". He claimed to the psychologist that only in August 2014 he had become aware that chemicals used to make illicit drugs were contained within the items that had been shipped from China to Australia and he was apparently promised payment of an additional HK$200,000 for his continued involvement. He concedes thus that his involvement in the offending was financially motivated.
I do not accept this explanation that he has given. In my view it does not accord with some aspects of the objective facts. Firstly, it does not accord in my view with the manner in which and the financial means by which the prisoner was able to set up the relevant corporation, to fly back to Hong Kong and/or Malaysia. In fact his travel to Malaysia remains entirely unexplained. Then there is the 'military style' precision with which he and Mr Chu were able to meet up in Australia in August in order to meet the arrival of the items that clearly contained the prohibited drugs. The whole operation was well organised and somewhat sophisticated.
The prisoner provided no insight into the impact of illegal drugs on individuals within the community, just simply saying that he did not "do" drugs, and that any remorse he expressed appeared to the psychologist to be limited to "self‑focus". I accept that he has some reactive anxiety to his current circumstances. Certainly there is no evidence of any contrition on his part beyond his plea of guilty. As I said there is no evidence of mental health issues or any substantial mental health imbalance even at the present time reactive to his current situation. The prisoner knew what he was doing in everyway.
The psychologist reflects upon the account that he gave and seeks to assert that the prisoner "seemingly engaged in this activity naïve to the true intentions of the individuals at large". I do not accept that that is an explanation for his state of mind or his involvement in the current offending.
With regard to his time in custody the psychologist notes his time in custody has involved employment in order to obtain some money to forward back to China. He is isolated in Australia which is to be understood but to be expected by those from overseas who commit crimes in our country and particularly, as this prisoner did, came to our country in order to commit this very serious crime. His emotional wellbeing at the time did not appear to be markedly impacted by his time in custody, the prisoner having found mechanisms for coping and no doubt, whilst in custody, his English language skills will improve.
The report from the Nanfang Medical University notes an admission of the offender's wife on 28 April 2014 after complaining of particular symptoms and the "initial diagnosis" was "early stage bowel cancer". That date of that diagnosis to my mind scarcely explains the circumstances of the reason for the offender to be, as the facts made clear, actively involved in the commission of the offence with which I am concerned by his arrival in Australia on 23 May 2014 already armed with a Hong Kong passport. Of course, he may have had the passport in his possession for some time previously, but on his account he was recruited fortuitously between the diagnosis of his wife and the date of his arrival in Australia to commit a serious crime, which I have difficulty accepting. I appreciate, of course, that as he committed the offence for financial reward on his own account that is an aggravating factor. I accept that there is prima facie evidence of his wife being diagnosed in April 2014 with early stage bowel cancer. I accept that, in part, the financial reward may have assisted he and his wife in meeting any medical bills that were required to be paid for her. But I do not accept that the issue of his wife's health was a primary factor motivating his involvement in the commission of the offence. The primary factor obviously that motivated his involvement in the commission of the offence was financial reward. It can be scarcely said in any event that the fact that he needed money for some medical treatment for his wife provides any mitigation for committing a crime of this type and certainly no argument has been put to the Court of relevant "exceptional circumstances".
It is in this regard and context that I note the reference of the wife. She asserts his involvement in the offence was "because of my illness". How she would know that is difficult to understand in the circumstances of the matter as revealed in the agreed facts. Presumably she would be reliant entirely upon her husband's representations to her. I accept that she has a strong relationship with him and that she is, to some extent, dependent upon him. I accept that she is separated from him and this causes her distress. I accept that she has made observations about his character, within her experience, that reflect upon him as being a person who has in the past been industrious. She notes his responsibility to "our family" and being a "good husband and a good father", yet the offender gives evidence of his separation from his first wife leading to estrangement from his children. She, on behalf presumably of her husband, expresses apology to the Australian Government, the judicial system, the police and others for his wrongdoing and seeks leniency and forgiveness in the treatment of him in this Court.
With regard to the sentencing of the offender of course a number of matters are required to be taken into account. First of all, of course, there is the assessment of the objective seriousness of the offending in the context of the offence carrying with it a standard non-parole period of 15 years imprisonment. It is clear to my mind that the objective seriousness of the offending is to be assessed as being at the upper end of the middle range of objective seriousness, having regard both to the role of the offender and, of course, the very substantial quantity of drugs involved of this type by relationship to the quantity required to establish a large commercial quantity. I bear in mind that the observations of Spigelman CJ in Way from 2004 that the middle range of objective seriousness is "not necessarily a narrow band" may still have relevance, notwithstanding the decision of the High Court in Muldrock v The Queen [2011] HCA 39 which overruled the 'ratio' in Way concerning consideration of the standard non-parole period in sentencing for an offence after trial. In relation to the standard non-parole period, of course, I bear in mind that s 54A(2) of the Act now provides, as was in effect held by the High Court in Muldrock, "that the relevance of the standard non-parole period involving an offence within the middle range of objective seriousness" was concerned only with an assessment of the objective facts of the case. Section 54B(2) provides now that in addition to a consideration of the relevance of the objective facts there are other matters to be taken into account in assessing the appropriate non-parole period. Ultimately the standard non-parole period is one of many factors to be taken into account, and, as the High Court held in Muldrock, it is not a starting point for the fixing of an appropriate non-parole period, nor an end point, but one of a number of guideposts to be taken into account in accordance with the decision of the High Court of Markarian [2005] HCA 25, particularly the judgment of McHugh J at [51].
In assessing the objective facts here, the Crown urged upon me the conclusion that I should conclude that the offender was the "principal" of the importation. I am not satisfied beyond reasonable doubt that the offender was the "principal" of the importation, although, as I pointed out in the course of submissions, I do not have a relevant organisational chart for the "syndicate" as it was described in the agreed facts. It seems to me, at least reasonably possible, that the offender would not be a principal because a principal, one would have thought, would not fly to Australia and expose himself as this offender did by his direct involvement by the use of his own identity in registering companies renting premises, renting the storage facility and, of course, physically involving himself in the dismantling of the crates that had been imported into the country. The agreed statement of facts are a little equivocal about that aspect of the matter I hasten to say.
The Crown adverted to it in his very helpful submissions by making the point that whilst a substantial quantity of the relevant prohibited drug was found, there is a strong suggestion that a quantity of the drug had been removed before the police had executed the search warrant. The agreed statement of facts refers to a limited quantity of relevant pieces of crockery being found on the premises when the consignment initially contained many hundreds more of pieces of crockery. At the end of the day, however, I am unable to conclude whether in fact any and, if so, to what extent and how much, of the prohibited drug may have been removed from the premises. As I said to the learned Crown, the facts are what they are and I must sentence the offender on the basis of the quantity which has been identified.
The learned counsel for the offender took me to the decision of Chan and Others [2010] NSWCCA 153, particularly at [126], where the Court of Criminal Appeal in dealing with one of the offenders, the offending being very different from what I am concerned with here, bearing in mind the Court there was concerned with the importation of 10.01 kilograms of crystal methylamphetamine, identified that person as being at high risk of exposure and that "usually" high risk of exposure was "the hallmark of a person lower in the hierarchy". Reference was made to other offenders being exposed as well. I accept that general proposition.
I note, of course, the fact that the cash that was sent by the offender it would appear back to China on the agreed statement of facts was sent to some organisation which, on the facts, is not linked directly to the offender. However having said that, as learned counsel for the offender noted, the offender's role was still vital and significant. He personally registered the corporation which was to be the front for the receipt of the consignment.
His involvement in May in this activity reflects upon his understanding, of the fact as at May, that there was being set up a corporation which was to receive a consignment which was to contain what we call under New South Wales law "prohibited drugs" or under Commonwealth law "border controlled substances". It just does not stand to reason that a person such as the offender would agree to come to Australia for the sum that he claimed, initially HK$50,000 which is A$10,000, and be entrusted with the money required to register a company and do the preparatory tasks that he undertook, solely to be receiving a modest quantity of crockery of limited value. In any event, not only did he register the company, as I have pointed out, his counsel pointed out that he signed the tenancy agreement for the premises which was the registered office of the company. He was involved in arranging for the storage space. He was responsible, as I said earlier by reference to the agreed facts, for paying for relevant services in cash. Both for the bond, for the registered address and paying rent three months in advance. And, of course, as I said, transferring US$35,000 to China from a source which is not revealed by the offender and certainly not revealed in the agreed facts.
Then he was involved with Chu in receiving the consignment seeking to secrete the activities that were taking place within the registered unit at Petersham, and with others apparently breaking open the consignment for the purposes of identifying the quantities of prohibited drugs that were ultimately imported. As it turned out, prohibited drugs in respect of which the offender was knowingly engaged in their supply by the activities I have pointed out.
He was clearly a trusted person and, of course, his role was absolutely vital for the success of the enterprise which, stripped to its bare bones although the offender is not charged under Commonwealth law, was involved in an activity involving the importation into Australia of a very substantial quantity of a precursor to the manufacturer of a prohibited drug that does a great deal of damage to our community in a range of ways. As anyone who sits in these courts would understand, as anyone who appears in these courts would understand, on a daily basis in sentencing and in trial work we are concerned with people appearing in court either allegedly committing, or admitting commission of, offences either for the purposes of obtaining money to buy amphetamines or methylamphetamine or alternatively under the influence of methamphetamine. In any event, his counsel specifically conceded that he played a "central role", although he was not a 'principal' because of his exposure to detection. He obviously was a 'senior executive' of the scheme.
It was conceded he committed the crime for financial gain. I have already dealt with that particular aspect of the matter. It is clear, having regard to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 that the two substantial aggravating factors are that the offence was committed for financial gain and that the offender was involved in planned and organised criminal activity. As I said earlier, the facts themselves refer to an investigation of what was described as "transnational criminal syndicate" crime.
Reference is made too in the agreed facts to the offender and Chu being a "suspected"..."shore party". Of course, that assessment in the agreed statement of facts is again at odds with the offender being the person responsible for the organisation of the forwarding of the drugs from China. But having said that, as I have already pointed out, it is conceded the importance of the offender's role and the integral part the offender played in endeavouring to make this importation of these prohibited drugs into the country successful. That aim was not achieved.
With regard to the consideration of the objective character of the offender's offending, of course I have endeavoured to focus more on what the offender actually did than seeking to characterise the conduct of the offender with a "label". This is clearly in accord with the leading authority on this particular aspect of the matter, that is the decision of R v Olbrich (1999) 199 CLR 270.
With regard to the character of offenders committing crimes of this type, under State law in this instance but with its clear relationship to importation into the country a border controlled drugs, I alerted counsel to an analysis undertaken by McClellan CJ at CL in the decision of DPP (CTH) v De La Rosa [2010] NSWCCA 194. His Honour, of course, was dealing with the importation of cocaine.
The judgment he gave has important summaries or statements of principle in relation to the sentencing of offenders with mental illnesses and intellectual handicaps, which does not arise here. But he undertook in the context of dealing with the issue of consistency in sentencing for Commonwealth offending across Australia the range of penalties that might be available for different categories of offending in respect of breaches of the Criminal Code and the Customs Act under Commonwealth law.
He broke up the categories of offender into four groups. The first group he described as those involved as principals in high or very high commercial quantities of drugs "frequently numbering in the tens if not hundreds of kilograms" with some exceptions. He then described a second group of offenders representing a range of authorities across the Commonwealth of Australia involving offenders who played "roles which although described as essential or vital, were not principal roles". It is conceded by brief reference to that authority by counsel for the prisoner that this offender fitted within that category. That is clearly so when one considers the other groups that his Honour describes as arising for consideration in relation to breaches of the Commonwealth legislation involving commercial quantities of narcotics where the maximum penalty is life imprisonment.
I note in relation to this second category, which the prisoner clearly fits within as a general categorisation of offending, that head sentences under Commonwealth law involve sentences ranging from 18 years to 24 and a half years, with non‑parole periods of between ten and 16 years. All the offenders in this group pleaded guilty from the cases he surveyed.
I refer to that categorisation for the purposes, firstly, of identifying what could be fairly described as the role of the prisoner by comparison to other categorisations such as those used by the Crown. I will come back to some authorities and statistics provided to me by counsel for the prisoner at the moment. I am mindful that decision relates to sentencing under Commonwealth law, a different sentencing regime.
In sentencing the prisoner I am required to have regard to the 'purposes of sentencing' pursuant to s 3A. Here there are a large number of purposes to be considered. Of particular emphasis in my view is a need to give weight to general deterrence. That is to deter other persons from committing similar offences, and particularly in the context of foreign nationals coming to our country to commit a serious crime of this type or to facilitate the commission of a serious crime of this type without regard to the welfare of the citizens of this country.
The prisoner's feigned ignorance, as I said earlier, of the purpose of his initial employment, if that be the correct expression, I do not accept, and it is quite clear by the time that he was inside the facility at Petersham, helping with the dismantling of the goods that had been imported from China, he had full awareness of the scope of the enterprise with which he was concerned. He no doubt, in my view, had awareness of that well before dismantling the various items that had been imported.
There is a need to ensure that he is adequately punished and also weight should be given to personal deterrence. But given his age and given the fact he will inevitably be deported back to either China or Hong Kong in his case the term of imprisonment to be imposed will deter him from further offending.
I do not believe the protection of the community is a relevant matter in this case, bearing in mind the prisoner will be deported. I am required to promote his rehabilitation, but I am also to make him accountable for his actions and to denounce his conduct, and to recognise the potential for harm to the community by this conduct. It is of little solace to the community that the prisoner himself is not a drug user and, according to the psychologist, was oblivious, on his claim, to the danger that his activities presented to the community, or the damage potentially that could be done by the conversion of the prohibited drug into forms of amphetamine.
Section 5 of the Act requires the Court in this matter to impose no other penalty other than imprisonment, but that is self-evidently so. With regard to s 21A I am required to have regard to the aggravating factors. First of all, the prisoner, as I said earlier, committed the offence solely for financial gain and was part of planned and organised criminal activity. I thought of the issue of whether the offence was committed without regard for public safety but, ultimately, the circumstances of the findings of fact are sufficient without necessarily having to conclude that as an additional aggravating factor.
In the context of what is required to be taken into account under s 21A(3) Crimes (Sentencing Procedure) Act 1999 I conclude that the prisoner did not have any record of previous convictions and was a person of good character. I am prepared to accept that just by reason of his age he is unlikely to reoffend and thus he has good prospects of rehabilitation. I could not conclude the prisoner is remorseful. He has expressed no remorse really to the Court and the psychologist retained on his behalf reflects that fact as well.
I take into account his plea of guilty as a relevant mitigating factor. For that he receives also the discreet discount for the utilitarian benefit of the plea of guilty. So far as his assistance to law enforcement officers I have taken into account that not for the purposes of providing him with a discreet discount, but as a matter relevant to sentencing providing some very, very mild mitigation. The fact that he did offer assistance to law enforcement authorities was ultimately of no moment and no value.
I have concluded that there are 'special circumstances' pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. Even though he will be deported at the expiry of his non‑parole period, given his age and the time he will be required to spend in custody, whatever be the result of this litigation, whatever appeal process is undertaken either by the prisoner or the Crown, he would need professional assistance in due course to adjust to community living.
In considering the appropriate sentence to be imposed, I was taken to some statistics in relation to an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The first thing to be said about these statistics is that the sample from which the relevant statistical information is drawn is very small indeed. In respect of the total number of cases where a term of sentence for the principal offence that was non-consecutive was imposed, the sample is nine, with a range of penalty from 16 years' imprisonment to five years' imprisonment.
There are other statistics made available in relation to the fixing of non‑parole periods and the like. It seems to me, with respect, that the statistics provide little guidance, bearing in mind the small sample, because one does not know the quantities of drugs involved. One does not know whether discounts have been provided for pleas of guilty, and certainly one has no idea of the relevant role of the offender, whether the offender was a person from another country who came to this country for financial gain where the issue of general deterrence to deter others from overseas committing this crime would be of greater significance than it might be in other cases, as well as other matters unknown.
I am informed by Ms Fernando, who skilfully represented her client's interests, that some authorities from the Court of Criminal Appeal would be encompassed within the statistics that she has provided me. Those particular authorities are DS v The Queen [2014] NSWCCA 297, Ibrahim Jidah v The Queen [2014] NSWCCA 269, Yousef Jidah v The Queen [2014] NSWCCA 270, as well as a summary in relation to judgments relating to those offenders and Lachlan Wilson [2014] NSWCCA 266. From what I understand of the material contained within the judgments and the summary, these various offenders were involved with, in various ways, a quantity, being a large commercial quantity, of pseudoephedrine weighing approximately 603 kilograms concealed within various boxes that were forwarded to a warehouse owned by Wilson, who at the relevant time was in Thailand.
DS helped to unpack the boxes and the others had various roles and they each either pleaded guilty or were found guilty after trial of being involved in various ways in the "supply of a large commercial quantity of a prohibited drug", or attempting to possess a precursor for the manufacture of the prohibited drug, or taking part in or aiding and abetting, counselling or procuring the importation of a commercial quantity of a border controlled pre‑cursor. The various charges reflecting the commission of various offences, obviously closely related to one another under either Commonwealth or State laws.
I have had regard to the penalty imposed for example on Wilson. I am told an 18 years with a 12 year non-parole period. He pleaded 'not guilty' and the various sentences settled by the Court of Criminal Appeal on appeal in respect of the other offenders. Particularly I am drawn to the sentence imposed on DS who had his or her sentence reduced from 15 years 11 months with a non-parole period of 10 years four months altered to a head sentence of 14 years six months with a non-parole period of nine years six months. The other sentences were lesser for the other offenders, but their roles were obviously diminished as well.
I bear in mind of course in relation to the matter the fact that the roles of different people vary according to the particular facts of the case. Whilst I note, notwithstanding the fact he pleaded 'not guilty' and he was found 'guilty' after trial, Wilson was characterised as a principal. It does not really assist a great deal in the context of the different facts that concern this particular prisoner. The fact that a particular sentence was imposed on Wilson as a principal does not necessarily provide a yardstick for the sentencing of this offender for this crime having regard to his circumstances and the character of the "organisation" that he served by his involvement in this offence.
I bear in mind of course what the Court of Criminal Appeal said last year in the decision of RCW v R (No 2) [2014] NSW CCA 190, that drawing a line through a particular case as providing guidance for what the appropriate sentence should be is not to be recommended. In RCW the learned sentencing Judge at first instance placed particular store on fixing the sentence with which his Honour was concerned to impose, upon one previous decision. The Court of Criminal Appeal made the observation that the Court is required to have regard to the distinction to be drawn between the facts of particular cases and using one case involving a separate set of facts involving offenders with different set of circumstances was not a recommended course to follow. In any event I have already noted by reference to a wider range of decisions the sentences that were considered as being an appropriate range for 'like' offending under Commonwealth law discussed in De La Rosa.
It might be said in respect of the second category of which Justice McClelland spoke the sentence I have settled upon in relation to this offender is at the lower end of the scale of that range. But I make the point again that sentencing is an individual exercise and each case must be judged upon its facts, statistics and other decisions can assist the Court by providing some indication of a range of penalty for particular categories of offending. But all relevant features need to be taken into account. Of course, the Court is required to apply the relevant legislative provisions that arise in the sentencing of particular offenders under particular legislative requirements whether they be fixed by the State or by the Commonwealth. A matter that needs to be noted too, in relation to Commonwealth sentencing, is that whilst in New South Wales there is a recognition usually of a discount to measure the 'facilitation of the course of justice' for Commonwealth matters, it may not necessarily follow that in other jurisdictions where Commonwealth law is applied sentences are imposed which permit the Judge to fix such a discrete discount as would occur here in New South Wales. Under State law of course I am obliged to give the prisoner a discount, as I said earlier, of 25% upon the otherwise appropriate sentence for the utilitarian value of the plea of guilty.
In coming to a determination of the appropriate sentence in this matter, as I have said earlier I have taken into account the prisoner's age. That arises both by reference to his prospects of rehabilitation and the circumstances of his custody, the weight that might be given to personal deterrence, given the age that he would be expected to be when he is released from custody. I have taken into account the fact that he has some ill health, but there is nothing in the material to suggest that his ill health cannot be managed by Justice Health. I understand he is in employment in the prison system. There is no suggestion that he is suffering any particular hardship in custody other than the inevitable hardship that a foreign national will suffer in being separated from his family and of course having to deal with being in a prison where his English would not be at this stage particularly good. As I said earlier this is the natural consequence of foreign nationals committing crimes in this country of this seriousness.
I have taken into account all that has been put on behalf of the Crown as well, having already referred to some of the aspects of the learned Crown's submissions. I have concluded that I could not determine that the prisoner was a principal in this particular crime. I would have otherwise been required to fix a greater sentence than the one that has ultimately settled upon. All time spent in custody will be taken into account as I foreshadowed by the orders that I explained to the prisoner before I commenced these remarks on sentence.
Can you stand up thanks very much Mr Wat. In relation to the offence to which you pleaded guilty you are convicted, you are sentenced to a term of imprisonment by way of non-parole period for a period of ten years. That will date from 8 October 2014 and expire on 7 October 2024. At the conclusion of the non-parole period you will be eligible for release to parole but that will be a matter for the Parole Authority. I do not propose to fix conditions of your release to parole. On your release to parole you will be taken into Federal Government detention to be deported either back to Hong Kong or China. I fix a balance of sentence of five years imprisonment, the balance of sentence will expire on 7 October 2029. In fixing the non-parole period I have made a finding of 'special circumstances'. Thank you you can take a seat.
Anything else Mr Crown?
AMARANTH: No thank you your Honour.
HIS HONOUR: Anything else from you Ms Fernando?
FERNANDO: No thank you.
HIS HONOUR: You are excused thanks very much Mr Wat. Do you want to speak to the prisoner with the interpreter here Ma'am or not?
FERNANDO: Your Honour I do but it might be easier if we see him in the cells.
HIS HONOUR: You may not be able to take the Interpreter downstairs, he is only here for court purposes, he's not here - I don't know. Mr Interpreter are you able to go downstairs with counsel to speak to the prisoner.
INTERPRETER: Well I can help if you like if it is necessary.
HIS HONOUR: I am not sure what the ambit of your brief is you see. The Courts arrange for you to be here to interpret for the prisoner. Mr Wat can take a seat thanks very much. If you can be of some assistance to Ms Fernando I am sure she would appreciate it Mr Ho. I appreciate you being here, you are excused. You can leave the dock thank you.
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Decision last updated: 22 February 2017