REGINA v HUANG

LEGISLATION CITED : Customs Act 1901 Queen v Shore (1993) 66 A Crim R 37 CASES CITED: Regina v Wong & Leung [1999] NSWCCA 420 Ferrer-Esis (1991) 55 A Crim R 231 DECISION : Grant leave to appeal; Appeal dismissed

1 SPIGELMAN CJ: I invite Justice Adams to deliver the first judgment. 2 ADAMS J: On 11 March 1999 the appellant, Chin Ming Huang, pleaded guilty to the following offence - "For that he between 21 September 1998 and 22 September 1998 at Sydney and elsewhere in the State of New South Wales did without reasonable excuse attempt to obtain possession of a prohibited import to which s 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin being not less than a trafficable quantity applicable to heroin which was imported into Australia in contravention of the Act." 3 The appellant was sentenced to imprisonment for eight years, commencing 22 September 1998, subject to an order that he be released after serving five years, namely on 21 September 2003, to be of good behaviour during the balance of his sentence and to appear to receive sentence if called upon to do so at any time in respect of any breach during that period. The appellant seeks leave to appeal in respect of this sentence. 4 The circumstances of the case were these. The applicant, who is a citizen of the Republic of China (Taiwan), resident in Hong Kong, had made a number of short visits to Australia, during one of which he had rented premises in Hurstville, a suburb of Sydney for a few months. On 21 September 1998, one Chung King Lim, a Singaporean national, arrived at Brisbane on a flight from Bali. He was travelling on a false passport. He was detained by Customs officers and, on being searched, something over a kilo of a heroin admixture was found divided between pouches inserted in each of his shoes. The admixture had an average purity of almost 78 per cent. The quantity of pure heroin was 809.5 grams. By virtue of Schedule 6 to the Customs Act 1901, this was a trafficable quantity the attempted possession of which attracts a maximum penalty of a fine not exceeding $100,000, or imprisonment for a period not exceeding 25 years or both: s 235(2)(d)(i) Customs Act 1901. 5 Acting by arrangement with the Australian Federal Police, Lim telephoned a person named David in Bangkok, Thailand, to confirm his arrival in Australia, and was instructed to travel to Sydney as previously arranged. Later that day, Lim, accompanied by Federal Police officers flew to Sydney, together with controlled delivery sample consisting of 20.8 grams of bulk heroin or 16.3 grams pure heroin. That evening Lim, together with the police, occupied a room of a hotel in Pitt Street, Sydney. Lim telephoned David and told him where he was staying, giving the room number. About half an hour later, he received a call from David, who told him that a person would be arriving at the hotel to collect the package. A little over an hour later, Lim received a telephone call from the applicant who said to him he would be at the hotel in about half an hour. Shortly before this time was up, the applicant entered the hotel and went to Lim's room. Lim showed the applicant the carry bag containing the control delivery sample and the applicant asked how much it was. Lim told him, "One kilo, 1 point something", and then added, "Now you give me the money". The applicant said that he did not have the money and, in effect, that he had received David's call "too late". When Lim stated that he would not release the package until paid, the applicant said he would return with the money on the following day. The applicant gave Lim a contact name "Sam", and a mobile telephone number. The identity of the subscriber to the mobile service is still unknown. The applicant was followed as he left the hotel. He was seen making several telephone calls and driving to various places in the city. A little over two hours after leaving the hotel, the applicant again contacted Lim and told him that he intended to return to pick up the package. A short time later, the applicant again came to Lim's room. He handed him $3,000 in Australian currency and $5,000 Singapore. Lim handed him the carry bag containing the controlled sample and the applicant left the hotel. He was followed. He re-entered his vehicle and then drove to a number of locations in Sydney, not leaving his vehicle however. About twenty-five minutes after he left the hotel, he threw the bag into which he had placed the heroin out of the driver's window as he negotiated a turn. As he did this, the bag caught against the indicator lever and tore, spilling a quantity of powder over the front seats and himself. The car mounted the curb and collided with a street pole. White powder was spread across the driveway. The applicant was arrested shortly after by Federal agents, who were maintaining surveillance at the time of the collision. The minimum estimated retail or street value of the imported heroin is about $1.4 million based upon an assumed purity level of about 15 per cent. 6 The applicant gave evidence at the sentencing proceedings to the effect that he sustained substantial gambling losses and that a man named Chen Wen, whom he had met at the casino, lent him $10,000 which he lost and, when he approached him again, agreed to give him more money but in return required the applicant to collect the heroin from Lim. He identified this man as one of the persons who the police had seen him meet during their surveillance on him after his initial contact with Lim. He denied having any contact with any person called David, despite what he had said to Lim on the telephone. The money which he gave to Lim had been given to him by Mr Chen. He admitted that he expected to collect the amount of powder specified as "one kilo one point something". He said that he threw the package of heroin out of the car because he realised that someone was following him and he was terrified. The applicant also gave evidence that, at the time of the offence, he was in serious financial straits, unable even to pay his rent. 7 The Crown Prosecutor cross-examined the applicant to suggest that his involvement in this offence did not occur as he had described and that his earlier visits to Australia were not, as he maintained, in an attempt to start a legitimate business, but were in fact connected with this importation. Her Honour rightly, in my view, characterised the applicant's evidence about his activities whilst in Australia as "totally unsatisfactory" but said that she could not be satisfied beyond reasonable doubt that his trips were other than as suggested by him. 8 Her Honour did not make a specific finding concerning the applicant's account of how he was recruited although she found he expected to receive $10,000 for his part. I do not see a sufficient evidentiary basis for concluding that this was the sum he had been promised or expected. He claimed to Mr Taylor, a clinical psychologist who had assessed him and whose report was tendered in the proceedings, that he was offered "a few thousand dollars". The Crown Prosecutor did not cross-examine the applicant to suggest this was not the fact. Her Honour, therefore, overstated somewhat the extent of the advantage he was to receive from the crime. However, in my view, this error does not materially affect the appropriate sentence. 9 Her Honour considered that it was appropriate to deal with the applicant as a courier. In the Queen v Shore (1993) 66 A Crim R 37 at 43, Badgery-Parker J (with whom Mahoney JA and Hunt CJ at CL agreed) said - "The task is not discharged by the attachment of labels: A was a principal, B was a mere courier, C was something else. It is necessary in every case to look at what precisely the evidence shows to have been the criminal conduct constituting the offence for which the particular person is to be sentenced. Subject to the principles established in De Simoni (1981) 147 CLR 303; 5 A Crim R 329, it is appropriate for the sentencing judge to attempt to place the criminal conduct in its context because it is only in its context that its true gravity can be assessed. There is a significant difference between the criminality of the person who does no more than physically transport the drug from one country to another and the criminality of the person who organises that transportation. The person who recruits the courier and equips him or her for the task is operating at a greater level of criminality than the courier himself or herself. So too is the person whose function in the overall scheme is to meet the courier at his or her destination, take delivery of the drug and pass it on to the local buyer or distributor. When the criminality of the person who organises the transaction in the country of origin is vested in the same person who takes delivery in this country and negotiates with distributors here, the gap between that person's criminality and that of the 'mere courier' is obvious and substantial."

I consider her Honour's finding that the applicant was a courier was justified on the evidence before her and was a fair characterisation of his role. 10 The applicant called his wife to give evidence in the proceedings. She said that she was in part-time employment and had the care of their son who was ten years old; she had been ill for many years, requiring continual medication and could not undertake a full-time job. She said that she was in dire financial straits, being unable to afford rent, school fees and living expenses and was exhausted both physically and mentally. She said that her husband, the applicant, had travelled to Australia hoping to improve their difficult financial position but, because "money was harder to come by and the family were having a hard life in Hong Kong, my husband had no other choice but to accept an offer to do the job, hoping to earn enough money to go home with." Regrettably, however, this was not true. The applicant's evidence was that, to a substantial degree, his financial problems were the result of his gambling habit. The applicant's wife said that the applicant was a good father and husband and that his separation from his family and his inability to look after his son were a severe punishment to him. 11 Mr Taylor noted that there were indications that the applicant had "a degree of reactive depression", although he had "a reasonably positive self concept". Mr Taylor considered that the depression was caused by his imprisonment awaiting sentence. Mr Taylor said that the applicant "is a markedly passive person...who demonstrates an inclination towards allowing others to exploit him...". He noted that the applicant had "expressed a considerable degree of remorse and contrition in relation to the offence". In Mr Taylor's opinion, the applicant (accepting his account of his recruitment) "did not appear to have sufficient [personal and emotional] resources to have coped with his financial crisis and [thus] agreed to commit the offence." 12 It was submitted that the learned sentencing Judge erred in not mentioning these aspects of the subjective features of the case. Her Honour said - "The prisoner in his evidence expressed contrition and remorse and expressed regret for the shame that his actions brought on his family. I accept these expressions of contrition as genuine. It is unlikely that he will be visited by members of his family whilst in prison and he has no friends in Australia who might visit him. That being the case, it will, no doubt, make his incarceration all the more difficult and I was urged to take that into account as making his imprisonment harsher than it would otherwise be. I also take into account that English is not the prisoner's first language and this may well serve to make his imprisonment more difficult than for an Australian national. "Nonetheless, the prospect of imprisonment in a foreign gaol must have been well within his contemplation when he agreed to attempt to obtain possession of the drugs ---." 13 In my view, although brief, I consider that her Honour sufficiently adverted to the material subject circumstances. In addition, she noted that the applicant had no prior criminal convictions. So far as his prospects of rehabilitation were concerned, her Honour said that the evidence did not permit her to do more than note the realisation expressed by the applicant of the impact of his criminal action on his family. In the context in which her Honour had already referred to the applicant's remorse and contrition, I consider that this was an adequate reference to rehabilitation, in the circumstances of this case, where the applicant would be deported immediately upon his release. 14 It was also submitted here that her Honour erred in not adverting to the psychological opinion concerning the applicant's reactive depression. It will be obvious from the passage which I have quoted from the psychologist's report that this was not a factor which in the circumstances called for particular mention, nor could it have played any significant role in the determination of the applicant's sentence. 15 I should mention that Lim, who imported the heroin into Australia and then assisted the police as I have described, was sentenced on 19 November 1999 in Queensland to a term of eight years imprisonment with a non-parole period of three years six months. I do not consider that this gives rise to any issue of parity so far as the applicant's sentence is concerned as Lim obviously was entitled to a substantial discount for his assistance. 16 In December last year, this Court delivered a guideline sentence covering offences of the kind we are now considering: Regina v Wong & Leung [1999] NSWCCA 420. The Court held, in substance, that there did not appear to be any pattern of inconsistency or systematic inadequacy of sentencing so far as the offences being considered were concerned and the guidelines reflected current sentencing patterns, expressly it was made clear that the guidelines were not intended to be prescriptive. 17 Coming to this case, the amount of heroin actually handled by the applicant was, of course, much less than the quantity that was imported and which it was expected would be handed by Lim to the applicant. No doubt this is why the applicant was charged with attempt rather than possession. In some cases there is a material difference between an attempt and a completed crime. However, this is not one of them. The relevant quantity of heroin is 809.5 grams. The guideline in Wong proposed to be applied to couriers and persons low in the hierarchy of the importing organisation is as follows - Low level trafficable quantity (2 gms - 200 gms) five to seven years. Mid level trafficable quantity (200 gms - 1 kilogram) six to nine years. These sentences do not take into account any subjective features. Thus, in the circumstances of this case, the plea of guilty requires some recognition, despite the overwhelming strength of the Crown case, not only for policy reasons but because it is illustrative of what her Honour accepted was the applicant's remorse and contrition. However, this aspect was limited somewhat by her Honour's finding, which was correct in my view, that the applicant was considerably less than candid in his evidence concerning his trips to Australia prior to this offence and the way in which he came to be recruited to commit it. 18 The applicant's situation in the prison environment, as a foreigner with limited English and having no friends or family able to visit, will make his imprisonment more harsh than would be so for the ordinary prisoner. This also requires some, though not much, recognition. Hunt CJ at CL observed in Ferrer-Esis (1991) 55 A Crim R 231 at 239 - "The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime as did this respondent has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country with its language foreign to him, isolated from outside contact." 19 Despite the inevitable and strong suspicions otherwise, it could not be concluded, and the learned sentencing judge did not do so, that the applicant came to Australia for the purpose of committing this or, for that matter, any crime. I see no reason for refusing to apply to this applicant the rule of law that the relatively greater harshness of serving a sentence which a person might undergo than that suffered by the ordinary prisoner is a material matter to be taken into account on sentencing and given such weight as in all the circumstances it deserves. This is not to treat the applicant more leniently than other prisoners but to treat him equally. 20 The starting point, having regard to these matters and applying Wong, which of course had not been decided as at the time of the sentence in this case, would reasonably be nine years, although eight years may nevertheless have fallen within the range having regard to the quantity. Nine years, however, was not an unreasonable starting point having regard to the circumstances of the case as a whole, and when some allowance is made for the subjective considerations to which I have adverted, her Honour's sentence of eight years does not demonstrate to my mind an appellable error. It is important to note that Wong is a guideline sentence and, just as some judges may think that cases fall in the upper range or perhaps beyond it and other judges might think that other cases could fall at the minimum range or below it, the specification of sentences in that judgment is intended to be a guideline only and not to impose an inappropriate limitation on the discretion of judges sentencing at first instance. 21 Accordingly, I do not consider that her Honour's judgment in this case, either of the sentence or of the period which the appellant is obliged to serve before being released on his recognizance, shows appealable error. Therefore, although I would grant leave to appeal I would dismiss the appeal. 22 SPIGELMAN CJ: I agree. 23 NEWMAN J: I also agree. 24 SPIGELMAN CJ: Leave is granted and the appeal is dismissed. **********

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