District Court New South Wales Medium Neutral Citation: R v Yu [2019] NSWDC 904 Hearing dates: 21 June 2019 Decision date: 01 August 2019 Jurisdiction: Criminal Before: Norrish QC DCJ Decision: Convicted – sentenced to a term of imprisonment to be served by way of an Intensive Correction Order Catchwords: CRIME – Commonwealth - sentence – attempt to import commercial quantity border controlled precursor – not the intended recipient – took possession and control – intentional knowledge – recklessness – impulsive act – Chinese citizen – resident visa – no association with drugs or criminal activity – low risk of re-offending - Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) (Crim Code) Migration Act 1958 (Cth) Cases Cited: Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 HAT v R [2011] VSCA 427 Hili & Jones v R [2010] HCA 45 R v Chandler [2010] QCA 21 R v De La Rosa [2010] NSWCCA 194 R v El‑Haddad [2015] NSWCCA 10 R v Fowler [2003] NSWCCA 321 R v Holland [2011] NSWCCA 65 R v Hull [2016] NSWSC 634 R v Mobbs [2005] NSWCCA 371 R v Morabito (1992) 62 A Crim R 82 R v Napala [2018] NSWCCA 191 R v Olbrich (1999) 199 CLR 210 R v Tranter [2013] SASCFC 61 R v Webb [2004] NSWCCA 330 R v Xiao [2018] NSWCCA 4 Category: Sentence Parties: Regina (Crown) Chengwei Yu (offender) Representation: Counsel: Mr Gleeson (DPP (Cth)) Ms McGee (offender) Solicitors: File Number(s): 2016/00318774 Publication restriction: No Judgment 1. Chengwei Yu appears today for sentence in relation to a charge of attempting to import a substance between 15 June 2016 and 22 June 2016, the substance being a border controlled precursor, namely ephedrine, and the quantity imported being a commercial quantity. 2. The plea of guilty was entered in circumstances where there was an acknowledgment by the prisoner of his knowledge of a substance being inside the relevant imported packages, but being reckless as to whether, in fact, it was a border controlled precursor. This is an offence contrary to a combination of s 11.1(1) and 307.11(1) Criminal Code Act 1995 (Cth) and carries a maximum penalty of 25 years imprisonment, and/or 5,000 penalty units. The prisoner was in custody from the date of his arrest, 22 June 2016, until his release on bail on 8 September 2016. 3. The prisoner was committed for trial on 29 March 2017, and it is agreed that he pleaded guilty at the time of the proposed commencement of his trial. I will come back to the issue of an appropriate discount to represent the utilitarian benefit of the plea of guilty. 4. There is an Agreed Statement of Facts in relation to sentence. There are some details in it I need not dwell upon, but the essence of the facts I will relate at this particular point. A consignment was sent from China on 15 June 2016 and was addressed to a person Lin Minghui, at an address in West Ryde, New South Wales, with a particular mobile phone. 5. The contents of the consignment were described as "plastic combs". The package was intercepted by Australian Border Force officers, and the consignment consisted of four boxes, which weighed a total of 66.6 kilograms. 2,042 hairbrush heads were located inside the consignment. The handles were packaged separately in zip lock bags. Each of the hairbrush handles had what were described as "off white crystals" in them. Forensic testing revealed a test positive for ephedrine. The bulk weight of the substance inside the heads was 17.153 kilograms. The total weight of the pure ephedrine, which is a precursor for the manufacture, for example, of amphetamine type products, was 13.98 kilograms 6. A commercial quantity of ephedrine, as I was informed by the parties in the course of the sentencing proceeding some weeks ago, is 1,200 grams or 1.2 kilograms. There was a partial substitution. On 20 June 2016, an investigative officer posing as a DHL driver, attempted to deliver the consignment to a house number in Eulalia Street, West Ryde. There are, in fact, two addresses at that number, A and B. When that delivery was attempted, neither door was answered and a missed delivery card was left at B, with the delivery driver's mobile phone. On 21 June 2016, the prisoner phoned the ABF officer's number and arranged for the delivery of the consignment the following day. On 22 June 2016, another, or perhaps the same, ABF officer posing as a DHL driver, delivered the consignment to address B in Eulalia Street, West Ryde. 7. At about 4.23pm, the prisoner, then under surveillance, although it would seem the investigators were not quite sure who they were surveilling, parked his white Subaru Outback outside the address. He got out of the car and approached the DHL van and signed for the consignment using his own signature and took the packages inside residence B Eulalia Street. At about 4.45pm, ABF officers entered that address and found the prisoner in the bedroom of that address with four boxes comprising the consignment and a meat cleaver on top of the consignment boxes. He was placed under arrest. He declined to enter into a record of interview, but he gave this information, which I understand to be correct, that he had been residing at the address of B Eulalia Street, West Ryde for approximately two to three weeks. 8. The space that he occupied within that address was for him and his girlfriend. He was a married man, and he usually resided at an address in West Ryde that he shared with his wife and family. He knew the packages were not in his name. He told the investigators he did not know who the packages belonged to, but he was going to open the packages to see if there was anything inside that he could sell. The Statement of Agreed Facts states that the offender, "had no involvement in the importation prior to the delivery of the consignment", as I have outlined from the facts. 9. I did not know this, but it was explained to me by the learned Crown Prosecutor that the relevant legislation defining import of relevant substances extends to a person who is alleged to be the recipient of an item that has been imported and, "dealing with" the item in a way that might change the character of the item, or the character of the possession. I was taken to two authorities; R v Tranter [2013] SASCFC 61, and particularly, a New South Wales decision of R v El‑Haddad [2015] NSWCCA 10, where particularly Leeming J, in considering the legislation, adopted what had been held by the South Australian Full Court in Tranter; upholding that dealing with relevant property, such as to come within the definition of importation, included changing the nature of the possession. 10. There seems to be no dispute in relation to this matter, and it seems to be, to my mind, probably the reason that the matter was committed for trial and was listed for trial. There was a factual issue to be determined. Whether the prisoner was relevantly dealing with the substance within the packages in the circumstances of the facts of the case. I do not propose to enter the debate as to whether there was a realistic prospect of acquittal. It is of no moment. 11. The prisoner was found, on his arrest, to be in possession of two mobile phones, one of them used to call the DHL driver to organise the delivery. That mobile phone was subscribed to another person with an address in Queensland; a person not known to the offender, In the scheme of things, having regard to the wider context of this offending, it is a matter to my mind in the modern era of interchangeable access to mobiles phones of no great moment. 12. As I said earlier, when I read out the charge, the recklessness of the prisoner was as to the contents of the consignment being a prohibited precursor and a commercial quantity. Of course, the Crown cannot prove, nor am I satisfied beyond reasonable doubt, in fact all the facts point in the opposite direction, that the prisoner knew that there was a relevant prohibited precursor, or a particular quantity, within the packages that had come into his possession. 13. The prisoner is a citizen of China. He has what is described in the agreed facts as a "Resident Return Visa". He has lived in Australia since 2003. He was married in Australia, in 2004, to a Chinese citizen, who was also a resident in Australia, and he has two sons, aged ten and eight, each born in Australia. He was released on conditional bail, having spent 79 days in custody, as I earlier outlined. He was subject to daily reporting conditions between 8 September 2016 and 23 March 2018. Since 23 March 2018, the prisoner has complied with reporting conditions requiring him to report three days per week. 14. The prisoner has no criminal history, as I understand it, in Australia, and I understand it to also be the case in China, otherwise, I would expect some evidence before me. The prisoner has produced, in his case, a body of evidence from his family in China, particularly, affidavit evidence from his brother and his mother. 15. The integrity of the affidavits that have been affirmed or sworn by those persons is confirmed by accompanying affidavits from the prisoner's solicitor and the interpreter, who interpreted Skype interviews between the relevant family members and legal representatives of the accused. The affidavit material from the prisoner's family was not objected to by the Crown, but in fairness, it was realistic noting the impracticality of the prisoner's family coming to Australia to give oral evidence. The evidence from the family seems not to be controversial in any event. I accept the detail of what is contained in the affidavits, which confirms a number of matters of history that were provided by the prisoner to Dr Richard Furst, who prepared a report dated May 2019. Dr Furst is a forensic psychiatrist that is well known to the Courts. 16. In relation to the prisoner, he did not give evidence, and I appreciate the circumspection one might approach reports based upon histories that are not the subject of test. But as I pointed out relevant subjective matters referred to by the prisoner are largely confirmed by the independent evidence, and in any event, it is not a significant matter, one way or the other, in this case for the reason that Dr Furst does not diagnose any relevant psychiatric or psychological illness of significance. 17. I accept by way of background evidence, or perhaps contextual evidence arising out of the affidavit of the family, that the family in China are very shocked at his arrest in relation to the current matter, and that his conduct, or in his involvement in any sort of criminal activity, is uncharacteristic. The prisoner is one of two children. His older brother, Keken, used to work in a family stonemasonry business, established by their father, which is, apparently, a profitable concern. The prisoner left China at the age of 17 and was married at 18 to his wife, and I have already referred to the fact that they have the two children I have identified. 18. He and his wife have, apparently, returned to China on a number of occasions; as I understand, particularly in 2009 and 2011. On that latter occasion, the prisoner returned to the family business; as I understand it, working in China between 2011 and early 2014. He also returned to China in 2016 at which time, his brother discovered that the prisoner was in a relationship with another person outside of the marriage. This was the reason that the prisoner was leasing the premises, or part of the premises, to which the relevant consignment was delivered. 19. The prisoner has had no involvement in the use of drugs, nor any involvement in activities that indicates any prior connection with the matter with which he is now charged. The prisoner has been visited, since his release from custody, by his parents, who apparently then returned to China. They are greatly distressed by his circumstances. His brother apologised for being unable to attend the proceedings to be present. I have some information about the family's stonemasonry business. It appears to be a legitimate business. The mother of the prisoner maintains regular contact with him, and his family have tried to settle the domestic relationship between the prisoner and his wife, but the relationship is under strain because of the current proceedings. 20. The prisoner is spoken of, by his mother, as being an attentive father to his children and a supportive son‑in‑law to his wife's parents, who live in Australia. She expresses concern about the impact of the prisoner's potential deportation from Australia upon the children, and also, the relationship of the prisoner with his wife. The prisoner has had employment in Australia during the times that he was not in China and, as I understand it, has some employment at the present time, largely working in the construction industry. 21. He has a reference from an employer who notes his promotion through his skill to a site foreman, with a particular company with which he has had an association for a period of, something in the order of, 12 years on and off. His employer stated that he was in, "total disbelief" of his involvement in the matter before the Court. The prisoner had not given any indication of any association with drugs or criminal activity. 22. He noted expressions of remorse by the prisoner for his circumstances and the circumstances of his family. I accept from the available evidence that the prisoner is industrious and is a loyal employee when in employment. Apart from the psychiatric report, to which I have referred, I have Justice Health records relating to an assault committed upon the prisoner on 3 August 2016, whilst in custody. The prisoner was assaulted by another inmate, apparently falling over and losing consciousness. He managed to regain consciousness, return to his cell, but collapsed again. 23. There are apparently no long term consequences for this event, although the prisoner suffered minor facial injuries. A CT scan was conducted, and there were no abnormalities found. A short psychological report prepared in June 2019 states that when subject to psychometric testing, the prisoner, at the time of testing, was suffering a clinically, "severe level of anxiety", which I take to be reactive to his current circumstances, not to his circumstances of the time of the offending. It is recommended in the psychologist's report that, should the prisoner be returned to custody, he be provided with psychological counselling, given that he has a history of panic attacks. 24. Dr Furst's report, to which I earlier referred, dated 22 May 2019, sets out matters of history. He noted that the prisoner had no significant medical problems, was not subject to regular medication, and had no family history of mental illness. He noted the history of the prisoner's marital difficulties at the time of the offence. He assessed the prisoner as being reasonably intelligent, lucid and alert. 25. There was no indication of any mental disorder, apart from anxiety relating to these charges. With regard to the marital circumstances of the prisoner and the extramarital relationship, the psychologist noted the history given by the prisoner consistent with the facts of his reason for being present at the property, to which the precursor was delivered. 26. Dr Furst concluded the prisoner would not require any specific psychiatric treatment if committed back to custody; however, he also noted the risk for the prisoner in custody given his lack of criminogenic characteristics. 27. In the absence of any underlying pathology, he was of the view that the prisoner had a low risk of re-offending, relative to other male offenders. Having regard to his past history in custody, a further term of custody would create, for him, a greater level of anxiety, which would be a matter of common sense in the circumstances. He pointed to a number of supporting features, including the prisoner's marriage; his family support and his relationship with his children; the absence of any evidence of personality disorder or any mental illness; the absence of any dependency or addiction to drugs; a reasonable level of intelligence; and a solid record of employment, all militating in his favour towards not re-offending. Both parties provided very helpful written submissions, from which I am grateful. 28. The Crown's written submissions, as usual, were detailed and helpful in outlining the matters that are required to be taken into account in sentencing. The Crown's ultimate position was that the Court should impose a period of full time custody, having regard to, what it submitted to be the nature and objective seriousness of the offence; the need for general deterrence; and denunciation of the prisoner's conduct. 29. It noted, as I note, that the prisoner was required to be sentenced in accordance with Pt 1B Crimes Act 1914 (Cth) "the Act". By reference to s 16 of the Act the Court must impose a sentence that is of a severity appropriate to all the circumstances of the case. The Court is required to have regard to the particular factors required to be considered under s 16 (2). I will refer to a number of the subparagraphs in that subsection, by reference to the subpara letter, rather than the entire reference. 30. So far as the nature and circumstances of the offence, the Crown points to the fact that the prisoner dealt with an importation involving 13.98 kilograms of ephedrine, in that the prisoner contacted the delivery driver to arrange the delivery of the consignment, with the use of a phone service that was falsely subscribed. He signed the package, took possession of the package, or the consignment, moved the consignment into his residence where he had control of it, and was in the process of opening the packages on arrest. This is clearly not in dispute. I was drawn to a decision with which I am well familiar, the decision of R v Olbrich (1999) 199 CLR 210, and particularly, in the reference of the Crown, to pp 279‑280, regarding what is required to be proven by the Crown and what is required to be proven on balance and mitigation by the prisoner. 31. There is some comment made about the role of a "courier" not being entitled to a degree of leniency, necessarily, because of that role. The use of labels is misleading in the best of circumstances, unless, of course, the person is actually doing what the label suggests. This case, I pause to point out, is a very, very unusual case. In fact, the most unusual case of its type that I have dealt with and I have dealt with plenty of importation cases, as the record shows. 32. I note what the Crown has submitted, which I accept, that the superior Courts have stated that illicit drug organisations prosper because people are ready and willing and able to take particular roles. That is true, but I point out, in the course of dealing with the issues of the facts and circumstances of the case, that not only is there no evidence that the prisoner had any connection with any illicit drug organisation, but there is no particular role that he agreed to undertake in conjunction with any other people. 33. I have noted the observations made by the Crown that recklessness was "not necessarily a mitigating factor", although the existence of recklessness was absent the "aggravating factor of intentional knowledge". That may be true, by reference to the decision cited by the Crown, but there seems to be, with respect to that some element of sophistry having regard to the fact that, whether it is recklessness or intentional knowledge, they both draw a sanction as the same crime. 34. Every case must be decided on its facts I think is what can be drawn from that proposition, which we all know. The Crown submits that the accused was reckless in the character that I earlier pointed out; reckless to the fact that there was a border controlled precursor within the consignment and as to the quantity, that it was a commercial quantity. Dealing with this matter by reference to the defence submissions, the defence acknowledges that the prisoner had no involvement in the importation prior to the delivery of the consignment, as described in the agreed facts. 35. The agreed facts provide further, in the submission of the defence, that the basis of the prisoner's guilt is in the manner in which I earlier outlined, that is, "dealing with" the substance, specifically, by bringing about a change in the character of that which we had in his actual possession and which the DHL driver being an Australian Border Force officer held in his possession. 36. The defence pointed out that where proceedings are conducted on the basis of an Agreed Statement of Facts, that particular document should not be used for the purpose of inviting the Court to infer facts adverse to the offender, which are not evidence on the face of the document, and I understand that is some reference to a recent decision of R v Napala [2018] NSWCCA 191, particularly at [6]. But it is not a practical matter of concern in the way in which this sentencing exercise has been conducted. 37. The defence submits, correctly, that the offence that the prisoner has pleaded guilty to captures a wide range of conduct, and varying mental states, reflecting different levels of seriousness of role, and also, one might have thought, "moral culpability". It is submitted in the context of the amount of drug, that the offending is at the lowest level of objective seriousness, given the absence of involvement in the importation, before responding to the delivery card, and to the relevant mental state of the prisoner at the time of his taking possession of the consignment. I accept that submission in general terms. 38. There may be less objectively serious offending in circumstances, if they could be imagined of even less "premeditation", a matter I will come to shortly. The defence submitted that, so far as the accused's mental state is concerned, the evidence of his connection to the consignment is consistent with him not being the intended recipient. I do not accept that he was the intended recipient. Particularly as he had no involvement whatsoever in the importation, as the agreed facts state. 39. It was submitted that his criminality arises out of, what is described in the submissions as "an impulsive act", which is very rare for an offence of this type. It is my experience, and I am prepared to say that my experience is reasonably considerable, that people who involve themselves in importations, usually are involved for an extended period of time. 40. The time lapse between the commencement of the participation and the necessary acts required to involve oneself in importation, usually permit time for reflection or deliberation on the appropriateness of the conduct. For example, if an item is being sent from overseas, and one is aware that it is being imported, it takes time for the item to come from overseas to Australia. 41. One would assume some agreement to participate in the importation, by assisting in the receipt of the item; for example, the unpacking of it and the like. This is not the situation here. It is interesting to note, in the context of some submissions that were prepared for me in another matter of a different character, that the Crown's submissions in that matter noted that premeditation and planning have long been recognised as relevant factors in weighing the seriousness of an offence, citing R v Morabito (1992) 62 A Crim R 82, particularly at 86. 42. The Commonwealth Director of Public Prosecutions pointed out in that other matter that, where demonstrated, such factors allow the Court to treat the conduct as a more serious example of the offence charged than would otherwise be the case. Conversely, it is submitted in those submissions, and I believe it is relevant to this matter, where offences are unplanned, impulsive, and opportunistic, and committed spontaneously they are generally to be regarded as less serious than those that are planned. 43. I must say, there is no golden light bulb moment involved in this. This is across all scores of offending. One would have thought that a situation where a person's involvement in an importation, even if it be limited to "dealing" with the product of the importation, is very rare indeed. The relevant authority cited by the Crown, in relation to the issue of unplanned, impulsive, and opportunistic offending, is R v Mobbs [2005] NSWCCA 371 [50]. 44. This offence does not reflect a degree of planning and coordination, which I think is self‑evident from the facts. There was also a submission made by the defence, by reference to a decision of R v Chandler [2010] QCA 21, per Keane JA, as his Honour was at that point, where his Honour at [24] noted that the legislature had prescribed, for a particular quantity of precursor, a lower maximum penalty than for the same quantity of border controlled drugs, reflecting the fact that the importation of precursors with the intention of using them to make drugs is less serious, but not a great deal less serious than the importation or border controlled drugs. 45. I should point out that there is no evidence of the prisoner having intention to use the precursor to make drugs. In fact, with respect to the state of the facts, there is no evidence as to what the prisoner could or would have done in relation to any discovery he made of the presence of the substance within the consignment. There is no evidence that the prisoner had the wherewithal to identify who, if anybody, might be able to use the consignment. 46. This brings me back to two aspects of the matter that I have already reflected upon in passing by reference to the facts and the assessment of the objective gravity. First of all, the very high degree of opportunism of the prisoner's involvement; as I said, "unplanned" and it would seem, by reference to his response to the delivery card that had been left at his address, "spontaneous". Just by happen chance, it seems on the facts, the card was left at the address where the prisoner lived. If the card had been left at 18A, it seems to me highly likely that the prisoner would not be sitting in the dock now and, of course, the issue of "dealing" with the relevant consignment in the manner that invokes the definition of importation. Also 'dealing' contemplates a range of activity. As to what the prisoner would have done once he had opened the boxes if he had not been disturbed is really a matter of speculation. 47. The Crown refers to the fact that the weight of drug may remain a relevant factor in determining the seriousness of the offence. To my mind, one feature of importation of drugs that reflects upon that, of course, is the capacity of the Court to conclude, one way or another, whether an offender had knowledge of the "size" or "weight" of the relevant border controlled drug or the border controlled precursor that had been imported. The Crown itself notes that the weight of the drug will have increased significance, if the relevant prisoner has knowledge of the amount of the drug to be imported. That is not the case here. 48. The Crown made a submission that the prisoner must have been aware, in a general sense, of the quantity of the substance imported, because he took possession of boxes weighing a total of 66.6 kilograms. That may have given some indication to the prisoner of the size of the consignment, but it would not necessarily reflect a knowledge of the quantity of the substance. As it turns out, in pure weight, it was over 13 kilograms, which is, on my very rough calculation, about one‑fifth of the total weight. 49. It could have been one‑tenth of the total weight. It is just pure speculation as to what might have been contemplated as being a relevant substance, in terms of weight, from a total consignment weighing what it did. We know that the prisoner was reckless as to the nature of the drug and the quantity of the drug, but had no knowledge of it. In any consignment the issue of the degree of packaging required for particular items to be safely transported is another relevant matter. 50. The prisoner is submitted by the Crown to have been involved in the commission of the offence for "financial gain". It submitted that this was "common sense" inference. That may be so to an extent, but it is not a common sense inference that the prisoner had a view to obtaining a particular financial gain in the circumstances where there is no evidence that the prisoner knew what he was in control of, and no evidence as to how the prisoner might have been able to turn his possession of the item into some financial reward. 51. I accept, of course, that this quantity of ephedrine is of some value to particular people. But there is no evidence that the prisoner necessarily would have received a particular "profit". The Crown pointed out that the objective seriousness of an offence is greater where an offence of this kind is committed for financial reward. 52. I accept that as a general proposition. But again, one must deal with these matters on a case by case basis. Clearly where a person is involved in the importation of a border controlled drug or precursor and they do so in the knowledge of a particular financial reward they will receive they do that, obviously, having knowledge of the character of the precursor and/or the drug, and to some extent, the quantity of the drug. 53. The Court is required, as the Crown correctly points out, to have regard to the guilty plea. It may fix a discount having regard to the utilitarian value of the plea of guilty, citing R v Xiao [2018] NSWCCA 4. It is agreed between the parties that the utilitarian benefit of the plea of guilty entitles the prisoner, prima facie to a discount of 10%, and I propose to give him that discount. The Crown submits that any demonstration of remorse, or acceptance of responsibility, is diminished by the lateness of the plea. 54. There is one issue in relation to that. That is the issue of whether on the facts as they appear in the agreed facts it could be said that the guilt of the prisoner had been clearly established. The lateness of the plea may reflect the practical circumstance that legal responsibility, in this particular matter was, to some extent, borderline. Although, a plea of guilty by the prisoner admits the essential elements of the offence I do not necessarily think in this particular matter that the remorse expressed by the prisoner is diminished by the lateness of the plea. 55. It is, as I said, an unusual case. But in this matter the prisoner can be primarily identified as remorseful of the fact that he permitted himself to be involved in this matter and the possible consequences for himself. The Crown notes limited cooperation with the authorities. 56. The Crown notes the requirement for the weight to be given to general deterrence, by reference to subpara (ja). That is true to the extent that one can identify the criminality, including the moral culpability of the offender. It is not a case where, as usually is the situation with drug importers, the sentencing of such people provides an opportunity to "send a signal to would be drug traffickers, that the potential financial rewards gained from such activities are neutralised by the risk of severe punishment", citing the late Sully J, in a decision from the 1990s. 57. The Crown submits the offending cannot be explained as a momentary or impulsive lapse. It depends, of course, how you define the expression "momentary" or "impulsive". But in the scheme of the time frame of all that was concerned with the prisoner's involvement, one could conclude that the prisoner's conduct does fall within the rubric of that description. I agree, by reference to subpara (m), that there is a requirement for adequate punishment. The Crown makes a submission that the criminality is high, a submission with which I disagree. It is just a label that does not fairly, in my view, reflect the facts of the case. I am required to have regard to the prisoner's character, antecedents and background, which I have done, and I have noted the material and the issues of circumspection that arise. 58. The defence submissions related primarily beyond the objective facts to subjective circumstances. Particularly relevant the issue of any potential deportation of the prisoner. I was provided with a copy of s 501 of the Commonwealth Migration Act 1958 and I note its contents. I was told, by way of submission, that a relevant matter that I should take into account is that his children have grown up in Australia and are now of settled school ages. It was submitted that the impact on his children, were the prisoner deported, would be, "exceptional". I do not accept this submission. I do not propose to dwell upon it, in light of the view I have taken of the appropriate penalty to be imposed. 59. I note, in relation to what has been put in great detail and with great eloquence by learned counsel for the prisoner, that the prisoner has in fact returned to China during the time that he has been a resident in Australia for extended periods of time. So, apparently, without disruption to the children. In any event, the circumstances are such that, whilst the potential deportation of a person may be a relevant matter, as discussed by the Victorian Court of Appeal in the decision of HAT v The Queen [2011] VSCA 427, this case does not fit within the rubric of the "exceptional case" required to be established in the context of a consideration of s.16A(2), and its reference to the circumstances in which the effect upon third parties will be taken into account in the sentencing exercise. 60. As I said, these matters may be relevant in a particular situation, to some extent, but this case falls short of what I would regard as the "exceptional" case. In any event there is clear evidence of the prisoner's movement from Australia to China without detriment to the family. There are other submissions made about the threat of deportation and how that may hang over the head of someone incarcerated. I have taken those matters into account. What was put by learned counsel for the prisoner, in the appropriate case, could be relevant in a material respect. But not, ultimately, in this matter. I was, in that latter regard, taken to the decision of R v Hull [2016] NSWSC 634. There is not the same degree of intensity of effect upon the prisoner that occurred in that matter. That having been said I note the prisoner has been subject to onerous bail conditions. Of course, when a person is granted bail, they are required to comply with the conditions of bail. 61. It was submitted that the Court may determine that the time spent on bail may be a "form of punishment" that could be taken into account, citing two decisions, one of R v Fowler [2003] NSWCCA 321, and another decision of R v Webb [2004] NSWCCA 330. Whilst the character of the conditions, which I summarise from the Crown's statement of facts, is a relevant matter, it is ultimately not a significant matter in this sentencing exercise. 62. I have taken into account some statistics that were provided to me from the Judicial Commission's database. But the sample of cases was very small indeed. If my memory serves me correctly, 13. Out of 13 cases, 12 full-time terms of imprisonment were imposed and one term of imprisonment for an offence under this provision was the subject of a suspended sentence. 63. I would not regard a suspended sentence as an appropriate penalty in the context of the weight to be given in the appropriate case to issues of general and personal deterrence. Although, I must say, in the context of considering personal deterrence, it seems clear to me that the experience of being charged in relation to this matter, being incarcerated for a period of time, the experience of being in custody, no doubt, would have a salutary effect upon the prisoner. Our prisons should not be places of corporal punishment or reeking of violence upon incarcerated people. It is a constant source of shame to know that when people are sentenced to terms of imprisonment they are possibly going to be subject, as did happen to this prisoner, to further punishments for which they have not been sentenced and which are totally undeserving. The violence within gaols, we know, is unpredictable. Who knows why the prisoner was assaulted. There is nothing about his background to indicate that he had done anything that might have offended some person. There is no suggestion that he has been an informer or anything of that sort. I have taken into account his experiences in custody. I hasten to say, if I thought for one moment that it was appropriate that a term of full-time custody was appropriate, I would impose it, no matter what had happened on the previous occasion. I have taken into account other matters raised by the defence counsel, the absence of prior convictions. That matter is relevant in a contextual sense as well as standing as a matter obviously relevant to some extent in the sentencing exercise. 64. I accept on balance, bearing in the mind the time the prisoner has been on bail and the absence of any further charges, that his prospects of rehabilitation are very good. The analysis of the experts and the objective facts suggest that his prospects of reoffending are "quite low". His counsel submitted that, rather than fulltime custody, whilst a term of imprisonment must be imposed, pursuant to s 17A of the Act, the term of imprisonment could be, if less than two years under the imported state provisions, served by an Intensive Correction Order. I was drawn to a number of, supposedly, comparative cases, and properly so. The Crown and the defence are entitled to bring to the Court comparative cases. 65. One such case, a case of Miller, involved a customs officer. Another offender, in a decision from the Victorian County Court of Lieu, was coordinating the importation. None of the comparative cases bear any resemblance to the matter with which I am concerned. 66. The issue of the reliance upon comparative cases, or the categorisation of offending, has been the subject of comment in a range of decisions by the Court of Criminal Appeal. McClelland J, in the decision of R v De La Rosa [2010] NSWCCA 194, sought to analyse many, many cases of importation, and try to categorise them by reference to marketable and commercial quantities, as they were then known, in respect of 'border controlled drugs'. I particularly refer to [216] ‑ [254]. Within a year, his Honour, in a decision of R v Holland [2011] NSWCCA 65, particularly at [3], reflected upon his categories of offending, set out in R v De La Rosa. He said this: "Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa, it became increasingly apparent that there were many significant decisions, with respect to the sentence for individual offenders, which had never been gathered together and analysed. The number is such, that to merely list them without classification, was likely to be of modest assistance to practitioners and judges, required to sentence future offenders. As I said in my reasons in De La Rosa, so as to assist others to readily access the information, I direct the decisions by reference to common characteristics, as far as they could be identified. However, it would be wrong to sentence an offender by seeking out the "category", into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category." 1. I would have thought, bearing in mind his Honour was trying to categorise importation of border controlled drugs, if his Honour had undertaken a similar categorisation of importing border controlled precursors for this particular offender, he would have had to find another category that he had not contemplated in his reasoning in R v De La Rosa, below the levels of criminality that are identified in relation to the importation of border controlled drugs. 2. Of course, I am mindful of what the High Court has said in Hili v The Queen; Jones v The Queen [2010] HCA 45, particularly at [54], by example, about the usefulness of a comparative sentencing where it is appropriate across jurisdictions given, in Commonwealth matters, the need for 'equal justice'. Allowing for, of course, the fact that from state to state there are different sentencing regimes that are imported by operation of Commonwealth law. In this particular regard, the other decision I need to refer to is the decision of Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208 and particularly, the judgment of Basten JA, at [35] ‑ [52]. 3. There, his Honour discussed the same topic as was identified by McClelland J in the earlier decision. He concluded, in relation to the matter that, firstly, it may be appropriate for a comparative sentencing task to be undertaken by reference to a range of outcomes defined by role [44] ‑ [45]. Basten JA also said at [39] that a more helpful exercise in comparative sentencing would involve identifying the key characteristics of the case then identifying cases with similar characteristics, and then consider the range of sentences imposed in those cases. 4. He pointed out the difficulties of the myriad of different circumstances in the sentencing exercise both objective and subjective and, of course, he concluded in that particular matter that the exercise was of a particular difficulty. I need not dwell upon the further observations of Basten JA in that particular matter, beyond coming back to the point that I made at the very beginning, and that was that I have had regard to the comparative sentencing matters, if I could call them that. Nothing provides any comparison with the current case, particularly when one has regard to the character of the criminality and, the state of knowledge of the relevant offenders. 5. Thus, I have had regard to all the relevant matters that are said to arise under s 16A(2). 6. I have taken into account all the submissions of the parties. I note, in relation to the sentencing of the offender, that the Court is required to, by reference to s 20AB(1), in the appropriate case, have regard to additional sentencing alternatives available under the law of a participating case, which may be imposed for a person convicted of a federal offence. In this instance, it is open to the Court to consider the imposition of a term of imprisonment to be served by Intensive Correction Order. 7. I have already made the point that an Intensive Correction Order is more serious than a suspended sentence, in its effect; and of course, there is ample authority that, whilst there is inherent leniency in the imposition of such an order, there is still the opportunity for that order to be converted into a full-time custodial sentence should the prisoner fail to comply with its conditions. There will be the requirement that the prisoner not only comply with conditions to be of good behaviour, but in this particular matter, there will be a requirement for him to perform a substantial period, of community service. Thus, I propose to move to the orders. 8. In relation to the offence to which you have pleaded guilty, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year ten months. 9. In that regard, the sentence I have imposed is one that, first of all, has been discounted by 10%, and I further subtracted the period of time that you have been in custody, bail refused, and I have slightly rounded the sentence up to make it an even period of months. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of Intensive Correction Order. This sentence will commence today on 1 August 2019. 10. I have had regard to the Sentence Assessment Report, which was tendered today. It is a report that I had requested in the context of the submissions that were made by learned counsel for the prisoner. The attitudes of the prisoner were described as attributing his offence to impulsivity and poor financial management; accepting culpability for the offence; justifying his behaviour by indicating that he was "stealing the package" for financial gain. In relation to his insight, as set out by the Community Correction Service, he recognised the impacts of his offending may have on the community and expressed the willingness to undertake community service or any other intervention required. 11. He is assessed as was the opinion of Dr Furst and the psychologist, at being at the low risk of re-offending, and various matters are identified, including if he were subject to an Intensive Correction Order, matters concerning supervision, reporting to Parramatta Community Corrections, and the amount of community service work that he can be provided per month. In these circumstances, he must report to the Community Corrections Office at Parramatta on 2 August at 10am. That is tomorrow morning. 12. The standard conditions apply. Firstly, he must not commit any offence, and he must submit to the supervision of a Community Corrections officer. The following additional condition applies, pursuant to s 73A(2), he is to perform 200 hours community service. 13. If you fail to comply with the conditions of this order, sanctions may be imposed, either by the Commissioner of Corrective Services, the State Parole Authority, or the Commonwealth Director of Public Prosecutions. Those sanctions may include a formal warning, imposing more stringent conditions, or may include a revocation of this order. If the order is revoked, you will be required to serve all, or some, of the period of your sentence in full-time custody. 14. You are directed now to attend the Court registry at level 3, where a copy of this order will be explained and given to you. ********** 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: 10 June 2020