R v Yan Huang

District Court of NSW|2012-08-17

INTRODUCTION 1On 21 June 2012 at the Sydney District Court the offender was found guilty by a jury of the sole count in the indictment presented against her, namely that, contrary to s 233BAA(4) of the Customs Act 1901 (Cth) (the section) on or about 16 May 2011 at Sydney, in the state of New South Wales, she did, without the requisite approval being obtained, intentionally import goods being tier 1 goods comprising pseudoephedrine, being reckless to the fact that the goods were tier 1 goods and being goods the importation of which is prohibited under that Act. The maximum penalty for this offence is five years imprisonment and/or a fine of $110,000.

PRE-SENTENCE CUSTODY 13After the offender's arrest at her residence on 16 May 2011, she spent eight days in custody prior to being released on bail, upon which she remained until I revoked it at the sentence hearing. Thereafter, she has remained in custody, for an additional period up until but not including today of twentyone days. Accordingly, the sentence I impose below will be backdated a total of twenty-nine days and commence on 9 August 2012.

THE SENTENCE HEARING 14At the sentence hearing, the Crown tendered, inter alia, the offender's probation and parole report dated 13 August 2012 (exhibit B), her prior criminal history (exhibit C) and a copy of an incoming passenger's arrival card dated that day in the name of James XF Xin together with an associated document from Customs (exhibit D) showing that a person of that name arrived by air from Shanghai, China that morning at 9.25 am. Same referred to an address in Campsie Street, Campsie. 15Whilst it was common ground that such name was identical to that of the offender's ex-husband, Mr Brassil informed me that his instructions were that this person "may possibly be him" although, in the circumstances referred to below, he conceded that it would be an extraordinary coincidence if such person was not, in fact, the offender's ex husband. I will return to this matter later. 16Further, the Crown handed up a number of sentences in other matters from which it submitted I could gain assistance. These also became part of MFI 1 on sentence. Same included a table summarising them. In addition, a copy of s 1158 of the Social Securities Act (Cth) became MFI 2 on sentence. It was common ground that the effect of this section meant that whilst the offender served any sentence in gaol, any social security payments that she received up until that point in time by, for example, NewStart Allowance, Parenting Benefit or Rental Assistance would cease. I will return to this aspect of the matter below when dealing with the submission made on her behalf regarding the question of hardship. 17Finally, the Crown referred to certain sentencing statistics produced by the Judicial Commission of New South Wales which did not go into evidence. It is clear on the authorities that such statistics are of quite limited assistance. 18Mr Brassil called the offender on sentence but did not tender any documentary material. However, he too handed up some authorities in support of his primary argument that whilst the sentence of imprisonment was the only appropriate sentence in all the circumstances, it would be of two years or less duration thereby opening up the availability of an intensive correction order which he submitted should be the course ultimately adopted by the Court. 19In this respect, the Crown's position was different only to the extent that even if I concluded that a sentence of imprisonment of two years or less was, to use the words of s 16A of the Crimes Act 1914 (the Cth)(the Act), "of a severity appropriate in all the circumstances of the offence", it should be served by way of a full time custodial sentence subject to an appropriate recognizance release order.

THE OFFENDER'S CRIMINAL HISTORY 20The offender was born in China on 17 November 1971 and was thirtynine years of age at the time of the offence and is now forty. She has four matters on her criminal history, all dealt with in the Local Court by way of relatively modest fines. The first three of such offences were dealt with at Burwood in 2005 and relate to charges of using offensive language in or near a public place or school and resisting and assaulting an officer in the execution of his duty. The fourth matter was dealt with in Goulburn in February 2008 and was a charge of possessing a prohibited drug. The offender told me that such drug was marijuana. 21As to both these matters, in its written submissions, the Crown submitted that "the offender's prior criminal record...and present conduct demonstrates a continuing disregard for the law, particularly in relation to her involvement with illegal drugs" and accordingly "the sentence imposed upon the offender should be of such a severity as to act as a specific personal deterrent to the offender". 22A little later on in such submissions, the Crown returned to this topic and submitted that the past conviction for the possession of a prohibited drug "demonstrates that the commission of the present offence is not an aberration and therefore (the offender) is not entitled to any leniency that might otherwise be afforded to a first offender" and that "greater emphasis should be placed upon the sentencing principles of retribution, deterrence and the protection of society". 23On behalf of the offender, Mr Brassil submitted that her record was, in effect, minor and, further, the amount of marijuana involved (of which there was no direct evidence) must have been small in light of the fine imposed which was an amount of $500. 24In my view, whilst the offender has not led a blameless life, her record does not demonstrate taking into account the current offence "a continuing disregard for the law" as submitted. In fact, her record is such that, in my opinion, she is not thereby disentitled to a degree of leniency. However, I accept that she cannot be dealt with as a first time offender.

THE OFFENDER'S SUBJECTIVE CIRCUMSTANCES 25The subjective circumstances of the offender, all of which I have taken into account, were detailed in her evidence on sentence before me and, to a lesser degree, in her evidence at trial. They were also described in the relevant pre-sentence report mentioned. 26After her birth in Shanghai China, the offender was raised in a stable family environment. While schooling in China is normally conducted over twelve years, the offender said that she only completed eight years schooling and that she "didn't do well at school". 27The offender's eldest daughter, who is now aged eighteen, was born in China when the offender was approximately twenty-two years of age. In 2001, the offender married an Australian citizen in China by the name of James XF Xin. After the birth of their daughter, who is now ten years of age, the family came to Australia in 2002. It appears that Mr Xin is not the father of the offender's older daughter. The offender divorced Mr Xin in 2008. 28At the time of the offence the offender was, as mentioned, working as a prostitute and living in a three bedroom, three storey townhouse at Homebush West with her two daughters whom apparently did not know of their mother's occupation. Upon her release from gaol on bail, the offender told me that she thereupon ceased working as a prostitute. She has since commenced to receive social security payments. As at the time of the sentence hearing, the offender and her two daughters were living in a two bedroom unit in Perry Street, Campsie, the rental for which was $350 per week. She also stated that she was looking for work with the assistance of Centrelink. 29The offender told the Probation and Parole Service that since arriving in Australia "she has been confined to home duties and has not participated in the workforce". There is no evidence before me as to whether the offender ever worked in China. 30As to alcohol and drug use, the offender told the Probation and Parole Service that she did not currently use either although she admitted smoking "ice" on "social occasions with friends" about two years ago and also mentioned her conviction and fine for marijuana possession from 2008. She further told such service that she cannot afford to gamble but said that she had played poker machines in the past.

REMORSE AND REHABILITATION 31At the sentence hearing, the offender, expressed considerable remorse in the witness box, stating that she "did something wrong" and that she had learned "a very hard lesson". She further said that she realises the harm that illicit drugs cause society and would never use them again. 32To the Probation and Parole Service, the offender maintained that she did not know the contents of the subject package. She told them she trusted "Tony" and did not question him and further stated that she was "somewhat gullible, preferring to see the best in people and that this has contributed to her downfall" and that she "now realises that her actions were wrong and she expressed remorse". 33In giving the evidence mentioned before me, I did not understand the offender to be admitting knowledge of the package's contents but rather that, as she told the Probation and Parole Service, she now accepted that she had been reckless as to its contents and should have seen through "Tony". To this extent, I am satisfied the offender is now remorseful and I have taken this into account in her favour coupled with her statements of intent to never use drugs again. 34In relation to the issue of rehabilitation, there was no direct evidence. The Probation and Parole Service concluded the offender would not benefit from any supervision by it due to its inability to identify any issues requiring "intervention". Nevertheless, there is in my view a need for the offender to receive assistance in developing her employment skills as well as in following through with her expressed desire not to return to any form of drug use.

THE HARDSHIP QUESTION 35Mr Brassil argued that a sentence involving any period of full time custody would result in a degree of hardship to the offender's youngest daughter that was exceptional and, therefore, could be taken into account as a mitigating circumstance. He then argued that after taking such hardship along with other matters into account, the Court would impose an intensive correction order, further submitting that this would be available due to the fact that any appropriate head sentence would be less than two years. 36Mr Brassil referred to this hardship as flowing from the financial consequences of sending the offender to gaol, which he argued would result in the rent not being paid on the offender's family's Campsie unit and the consequential loss of such accommodation. 37In her evidence, the offender told me that if she was sent to gaol her two daughters would not be able to remain in their current residence, apparently for financial reasons. 38The Crown's position was that the evidence simply did not establish on the probabilities that any such loss of accommodation would occur. Further, the Crown argued that even if it did, such a loss of accommodation was an unavoidable consequence of a custodial sentence and was not a mitigating consideration because it was not "truly exceptional" as understood within the authorities. 39To deal with this question, I intend to briefly summarise the relevant evidence. 40As mentioned above, it was agreed that the effect of the Social Security legislation was that once the offender went into custody, any benefits which she was receiving including NewStart, the Parenting Benefit and Rental Assistance would cease. However, it was also agreed that the offender's eldest daughter would thereafter become eligible for benefits including those that her mother was receiving relating to her younger sister. It was also agreed that she could continue receiving her current wages as an apprentice hairdresser, although this may lead to a reduction in such benefits if these wages increased above a certain level. 41It was further agreed that consequent upon the offender entering gaol, the income by way of social security benefits so payable to her older daughter would, when coupled with such daughter's own income, provide a total household income of between $947 to $1027 per fortnight, representing a drop of between $230 and $320 per fortnight from that which the household received prior to any gaoling of the offender. Accordingly, it was common ground that after payment of rent $700 per fortnight, the offender's two daughters would have available to them an amount of between $247 and $327 per fortnight. 42As to assistance from any extended family, the offender told me that she had no such family living in Australia, although she said in evidence that her daughters have aunts living in Sydney but there was "no contact" between them. The offender also told me that if she was sent to gaol her eldest daughter would look after her youngest daughter. In this respect, she agreed that her eldest daughter did so for the period of eight days between her initial arrest and when she was granted bail. 43The evidence as to any likely assistance from her ex-husband was inconsistent. The offender told me that she did not know where he was and that she has had no contact with him since being convicted. She also said that he "doesn't even bother" to have contact with their daughter and that he only provides $14.25 a fortnight by way of maintenance. The tenor of her evidence as to her ex husband was that he would not provide any significant financial assistance to their daughter nor be prepared to assist in her care generally. 44On the other hand, the offender told the Probation and Parole Service, that her ex-husband is "currently in China but will be returning in the near future" and that whilst he provides "no financial support for his daughter the offender is currently making application to address this issue". 45In crossexamination the offender denied being aware that her ex-husband had in fact arrived in Sydney that morning. After a short adjournment, the Crown tendered the documents forming exhibit D establishing, as stated, that a Mr James XF Xin arrived in Australia that morning, giving an apparent intended address in Campsie. As mentioned, Mr Brassil then sought instructions from the offender and informed me that this person "might be" the offender's exhusband before going on, as stated, to express his own view that if it was not him it would be an extraordinary coincidence. 46The question of hardship is one of the compulsory matters to which I must have regard pursuant to s 16A of the Act. The relevant subsection refers to "the probable effect that any sentence or order under consideration would have on any of the (offender's) family or dependants". It has been held that this subsection does not represent a change from the common law, namely that the probable effect must be "exceptional" before it can be taken into account: R v Sinclair (1990) 50 ACrimR 418. 47As to this question, both parties referred me to authority as to what circumstances have and have not been found to be "exceptional", including R v LE [1990] NSWCCA 146; R v Luong [2000] NSWCCA 139; R v Bednarz [2000] NSWCCA 553; R v Lo; R v Wang [2004] NSWCCA 382. In addition, I reviewed the circumstances considered in other authorities such as R v Hart [1999] NSWCCA 204; R v Alla [2004] NSWCCA 378; R v Wood [2005] NSWCCA 223 and Le v R [2006] NSWCCA 136. 48In considering this issue, the first matter I have to determine is whether I am satisfied that a probable effect of the offender's incarceration would be the loss of accommodation as suggested by Mr Brassil. In this respect, I was quite unimpressed with the offender's evidence concerning her knowledge as to her husband's whereabouts and likely return to this country, as well as to his asserted indifference to their young daughter. It is common ground that the evidence in the trial established the offender's ex-husband was present and in his daughter's company at the offender's residence when it was searched later on the day of her arrest, apparently having come there after being advised of such arrest. I strongly suspect that it was he who arrived in Sydney on the morning of the sentence hearing especially in circumstances where in continuing bail up to such date on the day that the offender was found guilty I had indicated that I may well revoke it on the next occasion. Further, the evidence as to the monies likely to be available to the offender's daughters is such that whilst rental payments may fall behind, it is impossible to determine when this is likely to occur, by how much and whether this will lead to the accommodation being lost and, if so, when. 49Taking these matters into account, I am not satisfied on the balance of probabilities that the offender's daughters will lose their accommodation as argued for by Mr Brassil as a consequence of their mother's incarceration, especially bearing in mind the length of the sentence imposed below. 50 However, if I am wrong in this regard, I am firmly of the view, having regard to the various authorities, that such a loss of accommodation does not constitute "exceptional" circumstances as understood, even taking into account the other difficulties adverted to in the evidence such as that of accompanying the offender's youngest daughter to and from school and preparing her Chinese style lunches. 51Nonetheless, I have taken these matters into account as part of the offender's general subjective circumstances in accordance with such authorities as R v X [2004] NSWCCA 93 and R v Gardard [2004] NSWCCA 170.

SENTENCE OPTIONS AND DETERRENCE 52As mentioned above, it was the position of both parties that the only appropriate sentence was one of imprisonment and, pursuant to s 17A of the Act, I so find. 53Whilst I have not found that the offender was a principal in the subject importation but rather was reckless as defined in acting as she did, her level of recklessness was, as stated, in my view, quite significant. 54Further, the amount of pseudoephedrine imported was substantial and this remains a relevant factor in assessing the seriousness of the offence: R v Lee [2007] NSWCCA 234. In this respect, the amount was twenty-five times the critical quantity threshold for that type of drug. 55I note that the offender asserts that she was, in effect, duped by "Tony" and, apparently, was motivated through the relationship that she had formed with him. However, she nevertheless also admitted accepting money from him in payment for her role. The offender was, therefore, motivated to some degree by financial gain. This adds to the seriousness of the offence. 56Any sentence must also be considered from a perspective of constituting an appropriate level of deterrence. Whilst general deterrence is not specifically mentioned in s 16A of the Act, there is ample authority for the proposition that it is a matter to be taken into account. Specific deterrence must also not be forgotten.

SENTENCE 57In arriving at a sentence of "a severity appropriate in all the circumstances of the offence" pursuant to s 16A of the Act, I have had regard to all the matters referred to in subparagraph (2) thereof, together with the other matters referred to above. I have also been guided by the approach of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]. 58The offender is convicted and sentenced to twelve months imprisonment commencing on 9 August 2012 and concluding on 8 August 2013.

SHOULD THE SENTENCE BE SERVED BY WAY OF AN INTENSIVE CORRECTION ORDER? 59Having sentenced the offender to a period of imprisonment of less than two years without regard to how it is to be served, it is now permissible to consider Mr Brassil's submissions that the relevant term be served by way of an intensive correction order (see R v Zamagias [2002] NSWCCA 19 at [26]). Such an order is available in these circumstances for federal offenders: see s 20AB of the Act and Clause 6 of the Crimes Regulation (1990)(Cth). 60Intensive corrections orders are a relatively new form of punishment in New South Wales.I have been assisted in determining the appropriateness of such an order in respect of this offender by the comments in the decision of Simpson J with whom Hislop J and Latham J agreed in R v Boughen: R v Cameron [2012] NSWCCA 17. Her Honour emphasised that the "principal focus of this sentencing option is rehabilitation" and in so doing, quoted from the relevant Second Reading Speech of the Attorney General where he said that such orders are "designed to reduce the offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community" and further commented that such an order is essentially "a sentence of imprisonment up to two years which is ordered to be served in the community where offenders can be subject to a range of stringent conditions including twenty-four hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities" 61Consequently, it would seem that I need to be satisfied that issues of rehabilitation are sufficiently relevant in relation to this offender. This would appear to be part of the consideration set out in s 67(1)(b) of the Crimes (Sentencing Procedure) Act namely, that the offender is a suitable person to serve a sentence by way of such an order. I have also to be satisfied, inter alia, that pursuant to s 67(1)(c) it is appropriate in all the circumstances that the sentence be so served. This, of course, includes considerations of unwarranted leniency as also discussed by Simpson J and R v Boughen. 62As to whether such an order should be made, it was the Crown's submission that, firstly, there was no relevant issue of rehabilitation in the present matter and, secondly, that such an order would, in effect, be too lenient in the circumstances. As to the first point, whilst the offender does need some assistance by way of rehabilitation in relation to improving her work skills and remaining free from drugs, the level of any such rehabilitation so required is, in my view, relatively modest and far from the "principal focus" in her case. Accordingly, I find that the use of such an order in this matter is not appropriate. In addition, such an order would also be, in my view, too lenient and is therefore inappropriate for that reason as well. Further, for the same reason, the use of such an order would not constitute a sentence of "a severity appropriate in all the circumstances of the offence" pursuant to s 16A of the Act.

RECOGNIZANCE RELEASE ORDER 63Pursuant to s 19AC(1) of the Act, I am required to make a recognizance release order unless I decide it is not appropriate to do so, in which case I must give reasons. In Hili v The Queen: Jones v The Queen [2010] HCA 45, the High Court determined that s 16A(1) and (2) of the Act require that all of the circumstances, including the non-inclusive matters referred to in s 16A(2), must be taken into account in making recognizance release orders in the same way as they must be taken into account in imposing a sentence of imprisonment. Further, in determining what recognizance release order is to be made, s 16A(1) requires the sentencing Court to make an order that it is of a severity appropriate in all the circumstances of the offence. In addition, what is the "severity appropriate" is to be determined having regard to the general principles identified by the High Court in Power v The Queen [1974] HCA 26. 64In doing so, the High Court in Hili further held that there was no "norm" or starting point, whether expressed as a percentage of the sentence, or otherwise, for the period of imprisonment that a Federal offender should actually serve before release on a recognizance release order. 65In considering the relevant statutory matters and adopting the approach set out in Power v The Queen, I am mindful of all the matters referred to above. These include, on the one hand, that this will be the offender's first time in prison and she has a need for some degree of rehabilitation. On the other hand, I am mindful of her level of recklessness and the quantity of the drug involved. In all the circumstances, justice requires and I order the offender be released after she has served seven months of the twelve month sentence imposed, namely, on 8 March 2013 and upon her entering into a recognisance of $500 to be of good behaviour for a period of two years from today. 66Mrs Huang, you have approximately six months left to serve and then you will be released upon entering into an agreement to be of good behaviour running for approximately eighteen months thereafter. If you are not of good behaviour during that period you will be liable to be returned to gaol to serve the balance of your sentence which is a period of five months. As well, you will forfeit the sum of money that I have specified. Do you understand? 67OFFENDER: I understand.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 October 2013

Crimes Sentencing Procedure Act 1999(NSW)

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