Mr W Brewer (Counsel for the offender)
File Number(s): 2017/63564
[2]
Judgment
The offender, Yunhui Xue, was born in China on in 1991. He came to Australia at the age of 17 on a student visa. His status was changed to a bridging visa and then he sought refugee status but that application was rejected in 2015. He had been living in Australia illegally since that time. He met this partner in 2010 and they have two young children aged five and two who are present in Court today. He has not seen his wife and children since he was taken into custody on 28 February 2017. I accept, as Mr Brewer puts it, in light of the history obtained in a psychologist's report which was adopted by the offender that his partner's circumstances are such that she cannot even afford to travel to the gaol to see him.
He stands for sentence having pleaded guilty to one count under s 307.11 of the Criminal Code (Cth), of jointly committing an offence with Mr Huang of importing a border controlled precursor namely ephedrine in excess of a commercial quantity, which carries a maximum penalty of 25 years imprisonment or a fine of $900,000 or both. He has no prior criminal history and is therefore to receive the benefit of his prior good character.
Mr Brewer of counsel, who appears for the offender, concedes that a term of full-time custody is mandated by the objective and subjective circumstances of the case and it is unnecessary to consider any alternatives. The sentencing process has been facilitated by helpful written submissions from the Crown which were the subject of very limited challenge by Mr Brewer and also by the fact that, as I have indicated, the offender gave evidence adopting the history set out in the documents that are part of exhibit 1 and was not subject to any serious challenge on that history.
R v Xue [2018] NSWDC 371 | Case summary | Zoe
The agreed facts demonstrate that, in short, there were two consignments containing a total of 4.77 and 6.55 grams of pure ephedrine brought into Australia in December 2016. Australian Border Force officers opened the first consignment at a DHL bond store, deconstructed the consignment, analysed it and measured it, and did the same for the second consignment which was intercepted three days later on 19 December 2016. The substances were replaced with inert substances. A number of telephone intercepts showed that the offender was tracking the delivery through DHL and he was in contact with the co-offender Mr Huang who has not been apprehended.
During a phone call on 17 December the offender appeared to give instructions to Huang saying, "You wait until it's delivered then you go over, it doesn't matter" and he also said, "You ring his phone then". On 19 December he rang Huang again and said, "It's being delivered now, you make a phone call, notify him, get up quickly because if it's delivered now into their home it will be very troublesome". Huang called him back and said that there were some problems because the whole vehicle was full of parcels. Later on 21 December the offender called Huang again and told him that the parcel was being delivered now. A managed delivery was undertaken on 21 December and the Toll courier had a conversation with the driver of a Subaru. It appears to be Mr Huang, because that was the licence that he showed the courier. Huang put a large box into the back of his car and shortly afterwards there was a phone call from Huang to Xue and then a phone call from Xue to Chen and the offender was giving instructions to Chen. Chen then drove Xue to an address at Homebush where Huang delivered the consignment. Xue went into the property to inspect the contents of the consignment.
Police searched premises at Berala on 28 February 2017 and found the offender there. When questioned he said to police that he had been in Australia for ten years and he had come from China.
The evidence for the offender which I take into account commences with a reference from a Reverend Virginia Lam asking for mercy on behalf of his partner and children. There is a reference from a friend of the offender's partner who describes the difficulties that the family is experiencing. That is expanded in the letter from the offender's partner; she describes him as a hardworking man who is dedicated to supporting his family, but he is a naive man who can easily put his faith into his friends and have poor judgment. As I have indicated earlier she describes the very difficult circumstances in which she is living in Australia. She is in regular telephone contact, apparently several times a day with the offender, and she said that she has formed the view that he is truly sorry and remorseful for his offending.
The offender tells his story through a letter to the Court and through the history to Mr Jones. I accept, as Mr Brewer puts, that he has demonstrated a significant degree of remorse by his early plea of guilty, by his expressions of remorse in those documents and also by the fact that he acknowledged the inevitability of a full-time custodial sentence and asked for his bail to be revoked so that he could return to custody and continue serving the time.
He says that he is willing to take the punishment that he deserves and take responsibility for the wrongs and correct his mistakes and he genuinely apologises to people in Australia for the troubles and damages that he has brought, and he recognises the problems that drugs cause to society and the harm that they cause to others. His attitude to the offending was described to Mr Jones as being motivated by financial difficulties that he was experiencing in supporting his family. He acknowledged that his role was to look for the consignment number and then tell another person of any updates and he was to check the consignment and he believed that it had some sort of pseudoephedrine or similar product within the consignment and he said that he was going to be paid $8,000 for his role, but he was never paid, as police intercepted the parcel.
There is no suggestion of any drug addiction or addiction to any other substance which maybe said to have had a causative effect on his involvement in the offending. The psychologist recognises the effects of sudden separation from a parent which has been long known to increase the likelihood of adverse effects on a child's psychological wellbeing as Mr Brewer submits, so I do take into account the significant hardship which is and will be imposed upon his family without going to the extent of finding that it is exceptional hardship within the meaning of the authorities. I accept that he is at a very low to moderate risk of reoffending given the factors identified by Mr Jones.
As I indicated he was taken into custody on 28 February 2017 and remained there until 6 March when he met his bail conditions and he was released to Australian Border Force custody and taken to Villawood but on 3 July 2017. He applied to have his bail revoked and he was again taken into Correctives custody. It is common ground that the sentence should commence on 28 February 2017.
As the Crown points out in the written outline of submissions, I must sentence the offender in the light of the matters set out in Pt 1B of the Crimes Act 1914 (Cth). The maximum penalty indicates the very serious nature of this offending and Mr Brewer accepts that the objective seriousness of this offending is very significant.
I must have regard to the role played by the offender and the particular activities undertaken by him. He is best described as having had a limited managerial role over other participants in the offence. He was involved early in the importation and had some knowledge of the contents of the consignment, although there is no evidence of the value of the consignment or that the offender had any knowledge of the value of the consignment. His particular role included, as the Crown said, providing the addressee's name for the consignments, giving orders to Huang concerning the delivery, making online tracking enquiries about the location and progress of the deliveries, providing Huang with status updates during the delivery, receiving progress reports from Huang and specifically news of the substitution of the second consignment, and giving directions to Chen to accompany him to the delivery location of the second consignment and inspecting the contents of that consignment.
The amount of the drug imported was in excess of ten times the commercial quantity threshold, and given Mr Brewer's concession that he had a limited managerial role, it is, as the Crown puts, likely that he had greater knowledge of the contents than would a lower level courier. Apart from the common-sense inference of financial gain there is the offender's admission of the promised financial gain to which I referred.
He is entitled to a discount for the willingness to facilitate the course of justice demonstrated by his remorse, his early guilty plea and his acceptance of responsibility. A 25% discount, although not necessary to specify, would be appropriate in these circumstances.
General deterrence of course must play a very significant part in signalling to would be drug traffickers that the potential financial rewards are neutralised by the risk of severe punishment.
The Crown points to two allegedly comparable decisions, first, the decision of R v Lamella [2014] NSWCCA 122, where the Court of Criminal Appeal exercised the Court's residual discretion not to interfere with a sentence which was said to be inadequate. There are significant factual differences between that case and the present which makes it of limited assistance. Similarly, the second case pointed to by the Crown of Phan v R [2013] NSWCCA again has some significant factual differences, namely, there the offender was the principal in the importation of a 23 kilogram package of pseudoephedrine and he was at the time of committing that offence on bail for other pseudoephedrine importing offences. Notwithstanding those differences I do have regard to the sentences that were imposed in those cases and I also have regard to the statistics provided by Mr Brewer which are recognisably a blunt tool, but of some assistance given the range of 24 cases covered by the sample.
In the light of the material to which I have referred, the orders that I will make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of 5 years, 6 months to commence on 28 February 2017 and expiring on 27 August 2022.
3. I impose a non-parole period of 3 years, 4 months, expiring on 27 June 2020. The offender is eligible for release to parole on that date.
Note - This ex-tempore judgment was revised without access to the court file
[3]
Amendments
15 March 2019 - Anonymised unique personal identifier at [1].
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Decision last updated: 15 March 2019