R v Lau [2020] NSWDC 843

District Court New South Wales

Medium Neutral Citation: R v Lau [2020] NSWDC 843 Hearing dates: 5 June 2020; 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Criminal Before: Judge W Hunt Decision: Convicted Sentence to imprisonment for 22 months to be served by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Attempt to possess marketable quantity of unlawfully imported border controlled drug – Methylamphetamine. Legislation Cited: Commonwealth Crimes Act Commonwealth Criminal Code Crimes Act Crimes (Sentencing Procedure) Act Judiciary Act Cases Cited: Dinsdale v R [2002] CLR 321 R v Fangaloka [2019] NSWCCA 173 R v Nozhat (No 3) [2019] ACT SC 160 R v Osenkowski [1982] 30 SASR 212 and 213; 5 A CRIM R 394 R v Todd [1982] 2 NSWLR 517 Wany v DPP [2020] NSWCCA 318 Webb v R [2020] NSWCCA 103 Wong & Leung v R [2001] 207 CLR 584 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: The Crown Ching Lau Representation: Counsel: A.Wong – The Offender

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2019/193883

Judgment 1. HIS HONOUR: Ching Lau is before the Court for sentence in relation to one substantive offence in breach of s 307.6(1) and s 11.1(1) of the Commonwealth Criminal Code, in that she did attempt to possess a marketable quantity of an unlawfully imported border controlled drug, being methylamphetamine at a pure weight of 402.74 grams. I will have regard to the maximum penalty as a benchmark or a guidepost in the way contemplated by the authorities and as a way of comparing this case to the worst possible case. There is no matter to be taken into account on a schedule to s 16BA of the Commonwealth Crimes Act and there are no other matters to be dealt with at the conclusion of sentencing for the substantive count. 2. These reasons for the sentence are being given ex tempore. Today I received some further updated subjective material and gave the parties the chance to expand if they wished to on the two sets of careful written submissions which have been provided earlier. 3. Before I come to the principles for sentencing in federal offences, I make some short observations about the progress of this matter since it has been in the District Court. This is a matter in which Ms Lau pleaded guilty in the Local Court and was committed for sentence. It seems uncontroversial between the parties that she ought be accorded a 25% utilitarian discount in relation to that matter, following on from the determination of Xiao v R [2018] NSWCCA 4 and other cases that follow it in New South Wales. 4. The matter came before me for sentence on 5 June 2020. On that date I considered a raft of written evidence relied on both by the prosecution and by the offender. Additionally, I heard oral evidence from Ms Lau as to, first, her personal circumstances but more particularly, second, the circumstances of her offending and her motivations for it. The matter was then adjourned to give the parties the chance to consider a transcript of that evidence and to make some written submissions about what I should make of the facts that were in contest over and above the agreed facts. 5. The matter was then listed for 11 September 2020, part-heard before me. Relevantly, at no fault of either party, the matters needed to be adjourned and ultimately were finally adjourned to be resolved today on 15 December 2020. The matter could not proceed on 11 September 2020 because I was medically indisposed. Thereafter, either the commitments of the parties and my commitments on circuit meant that another date could not be allocated until the last week of term. I will come back to the issue of some limited delay in the matter in due course. 6. The Court is obliged to sentence in relation to federal matters having regard to the provisions of Pt 1A of the relevant Commonwealth legislation. I am obliged in a non-restrictive fashion to at least have regard to matters where they are known to the Court as set out in s 16A(2) of the Act. My determination as to the ultimate penalty to be imposed is restrained by the provisions of s 17A. That provision effectively provided that the Court must be satisfied that a sentence of imprisonment is the only possible sentence to proceed in that fashion. 7. It is effectively conceded by Mr Wong for the offender that some form of imprisonment is warranted by way of the objective seriousness of the offending, to which I will come shortly. He does not accept the Crown's submission that only a sentence that involves a non-parole period and therefore necessarily a sentence that is at least of three years imprisonment and to be served full-time is the only available disposition. I will return to that issue in due course. 8. The centrality of the facts are agreed in a document of five pages and 36 paragraphs. I extract the following short particulars from that agreed document. On 16 June 2019 a postal consignment which was declared as a personal gift box arrived at the Sydney gateway facility from Malaysia. The consignor was a person with details in Malaysia. The consignee was Chan Lau with a nominated post office box in Kingsford. That consignment was intercepted by the Australian Border Force, selected for examination and was found to contain a white crystalline substance in a sealed bag which presumptively tested positive for methamphetamine. 9. In due course a forensic examination of that substance revealed a net weight of 500.3 grams and a calculated pure gross weight, as I have said, 402.74 grams. It is trite to observe that in federal matters it is important to have regard to the pure weight only. That substance which had been confirmed to be methamphetamine was substituted with an inert substance and repacked. 10. In due course police delivered the substituted consignment to Kingsford Post Office for collection and the manager of that post office placed a 'You Have Mail' notification in the relevant post office box. There was telephone communication intercepted between the offender and somebody using a telephone number ending 604 which was consistent at the least with the offender suggesting that she could be involved in some fashion in supplying "smoke" to another or others. 11. On 16 May 2019 the offender had started renting the relevant PO box 823 at Kingsford Post Office. She had entered into an agreement for a 12 month period and opened with the name Joyce Lau at her own premises in Hurstville with an email account and a mobile number that, as I apprehend it, could be traced to her. On 28 and 29 May 2019 the offender received two text messages from Australia Post notifying her that a parcel had been delivered to the parcel locker and providing her with an access code. It is not suggested that that parcel contained a border controlled drug. 12. Similarly, there was a further communication received on 29 May 2019 and that package is not alleged to be a border controlled drug. On 29 and 30 May the offender made some enquiries via her computer as to expectations when awaiting consignment of a post item. She made similar enquiries on 11 June in relation to Australia Post and the track your items page on her 'My Post' account. The Crown accepted that it did not have evidence of the actual content of the accused's enquiries at paragraph 21 of the agreed facts. I will return to that issue when I deal with some of the offender's evidence. 13. On 21 June 2019 the offender received and read an email from Australia Post informing her that she had mail awaiting collection. About 1.26 on that day she entered Kingsford Post Office and the manager of that office, spoke with the offender, having contacted New South Wales Police officers. The offender provided the manager with the 'You Have Mail' notification card and the offender provided her bankcard as sufficient identification. She signed the relevant consignment form and took possession of the substituted consignment. She went towards the exit of that post office and was arrested and cautioned by New South Wales police officers and she denied any knowledge of the consignment containing drugs. 14. Upon arrest police seized from her person a mobile phone and a set of keys, which perhaps unremarkably included a key to PO Box 823. She was taken to Maroubra Police Station where she was formally charged and she agreed to participate in a recorded interview. Among other admissions she said that she rented that post office box under her name and had been doing so since 16 May 2019. She said that she paid for it for a year and that she accessed it using one of the keys located on her key ring. She said that she had been waiting for what are described as legitimate parcels. She said that the phone number on the consignment was her phone number. She said that she sometimes used drugs, specifically ice. She said that her anglicised name was Joyce and that she had previously collected parcels from a Kingsford post office but could not remember how many times. 15. At a time when the offender's daughter Mitsi was present, police later that day executed a search warrant at the offender's home where a silver HUAWEI mobile phone, a number of pink tablets and an Australian passport in the name of Ching Lau was seized. The following day police executed a search warrant at different premises at 22 Bruce Street, Kingsford, which had been an address noted to in some of the earlier text messages that I referred to. There was found two clear containers with crystal residue, two SIM cards, a white iPad, a black laptop, a resealable bag with numerous empty gelatine capsules, a prepaid cash card and a business card in the name of David Lee and two bags with numerous ice pipes and unused drug paraphernalia. 16. In terms of the antecedents that are set out, the offender is a 53 year old Australian citizen and she had been residing in Australia for approximately 36 years. She resides at 703/23-31 Tracey Street, Hurstville with her daughter. She is said to be in receipt of Centrelink pension and no known dependants. 17. The facts at paragraph 35 relevantly state, "The Crown accepts that the offender did not have knowledge of but was reckless as to the fact that the consignment contained a border controlled drug, namely, methamphetamine. The Crown further accepts that the offender did not have knowledge of the particular weight of the consignment." 18. The offender at paragraph 36 of the facts admits the following; That at the time of the offending she associated with a person named David Lee who resided at 22 Bruce Street, Kingsford, that she assisted Mr Lee in the supply of drugs to third parties and received methamphetamine in return and, that David Lee is a person who is referred to as "Big David" in one of the text messages captured by police and referred to as "my brother" in another of those text messages. She also admits that she was aware of a substantial risk with respect to the consignment containing a border controlled drug and having regard to the circumstances known to her, namely, the knowledge that David Lee was involved in the sale of methamphetamine and had previously been convicted of the supply of drugs, it was unjustifiable for her to take the risk and collect the consignment on his behalf. 19. In terms of the nature and circumstances of the offending, for purposes of s 16A(2)(a) of the Crimes Act, the offending involved the offender being in receipt of the consignment being reckless as to whether it contained a marketable quantity of prohibited drug. The consignment was addressed in a rough analogue of her own name and contained her own phone number. I am able to be satisfied beyond reasonable doubt that the offender must have supplied to Mr Lee or he knew her real name, that she supplied to him her mobile phone number and that she provided to him the addresses of the rental post office box. 20. I am also satisfied beyond reasonable doubt that she rented that box at the request of David Lee. I am satisfied beyond reasonable doubt that she undertook the action that she did for some kind of financial reward. Having said that, having heard her evidence, the financial reward was not in direct money terms. I accept on the balance of probabilities that Ms Lau engaged herself in this matter at the behest of David Lee and with some pressure from him, although that was not pressure that had commenced to be exercised on her before she rented the post office box but only more recently. 21. I am satisfied on the balance of probabilities, having heard her evidence and assessed her, in most matters, to be a credible witness and that she undertook this activity so that Mr Lee would continue to supply her with methamphetamine to pursue her then current addiction. In that regard she is to be distinguished from somebody who sought to make money from the misery of others as is so often the case with people involved in the importation of prohibited drugs. Although her role was an important one, I am satisfied on the balance of probabilities that it exposed her to significant risk of detection, given that the consignment was in her own name and was to a post office box registered to her anglicised name with her correct address and email address attaching to that. Although it was suggested by the Crown that this was a sophisticated operation and it may have been from Mr Lee's point of view because he was largely inoculated from risk but for Ms Lau's provision of his details and role to the authorities. However, from her point of view it was a pretty unsophisticated enterprise, doomed to easy detection if, as was the case here happily, the items were not distributed into the community. 22. Of course, weight is always a relevant consideration when the Court needs to determine the objective seriousness of offending in relation to possession, attempted possession or other allied importing offences. That said, it is clear from the High Court in Wong & Leung v R [2001] 207 CLR 584, and authorities that follow it, that weight will not always be the predominant or determinative consideration. 23. I accept the Crown's submission that there is no differentiation between the maximum penalty for recklessly attempting to possess as opposed to knowingly attempt to possess. I also accept the prosecution that there is no indication that Parliament suggests, in terms of the drafting of the legislation, that there is to be some differentiation between the seriousness of either type of offending. That said, founded on what the Court said in R v Nozhat (No 3) [2019] ACT SC 160 at paras 7 and 8, it is permissible for a court to take into account that an offender is reckless as opposed to actual knowledge and that this is a feature that sounds in an assessment of objective seriousness. 24. More relevantly in this case, whilst by her plea the offender admits to being reckless and having shouldered an unwarranted but substantial risk in terms of her conduct, that a border controlled drug in excess of two grams that has been the marketable quantity, might have been contained in the relevant consignment. There is no evidence of any understanding in Ms Lau as to the likely quantum in the package. 25. I find that on the balance of probabilities that she had no basis for understanding, even applying the standard of recklessness, of how much prohibited drugs over and above the marketable quantity were in the consignment. That means that notwithstanding that the amount of methylamphetamine was more than 200 times the marketable quantity and more than 50% of the weight towards the threshold for the commercial quantity, those matters sound very likely in the calculation of objective seriousness in a case with these particulars. 26. The objective seriousness of this offending, taking into account that attempts to possess any kind of imported border controlled drug are serious offences, the objective seriousness of this offender's role in the circumstances falls into the low range but not at the lowest range of objective seriousness. It is lower than the bottom of the middle range of objective seriousness for the reasons that I have articulated. There is nothing that I can discern in terms of breach of conditional liberty or otherwise that would serve to aggravate the offending. 27. Pursuant to s 16A(2)(g) as to whether there has been a guilty plea, I have already observed that the guilty plea here had utilitarian value given the time at which it was entered and also supports other evidence consistent with Ms Lau being remorseful. As I have indicated, consistent with the authorities, I propose to, for utilitarian purposes, impose a discount of 25%. The parties are at odds one with each other as to whether there is properly a discount available for Ms Lau's cooperation with law enforcement authorities for purposes of s 16A(2)(h) of the Crimes Act. 28. Although the Commonwealth accepts that there is certain material that was made known to them by the offender, and I have averted to some of that material at paragraph 36 and following of the agreed facts, the Crown submits that there is nothing here that, if you like, using my words, test the utilitarian or the value of that material to the authorities. I accept that there is no evidence of that kind but having regard to what Bellew J said in Webb v R [2020] NSWCCA 103, given that there is evidence of cooperation with the authorities and having regard to the range of discounts that have been discussed in the authorities, the level of assistance is relatively modest and it relates only to past assistance without any suggestion of future assistance. Accordingly, I determine in the exercise of my judicial discretion to apply a discount that relates to the assistance to the authorities, being an allowance of 5%. What that means is when I come to articulate the reasons for the sentence to be imposed, a starting point sentence will be discounted by a total utilitarian/assistance discount of 30%. 29. In terms of the deterrent effect of any sentence for purpose of s 16A(2)(j), I accept the Crown's submission notwithstanding the limitations of the offender's role that I have found that her conduct constitutes part of a course of conduct and the material about potential assistance to supply those who would be supplied prohibited drugs by Mr Lee, indicates that the offending is not an isolated act and accordingly, there is a need for a sentence that would specifically deter Ms Lau for the purposes of that subsection. 30. For purposes of general deterrence and the need for adequate punishment for purposes of s 16A(2)(j), (a) and (k), it is uncontroversial that those who engage themselves in activities related to importation of prohibited drugs need to attract a sentence that would deter other people from behaving in the same fashion and there is a need for people to be adequately punished. If I am called upon to revise these remarks the thing I am about to now say I will put within the heading that relates to specific deterrence. 31. In this circumstance the evidence discloses that Ms Lau served the better part of four months in full-time custody on remand. It is clear as a person with effectively no criminal prehistory and never having been to prison, that period of imprisonment full-time had a marked and salutary effect on her and I am prepared to take the view that that period on remand is at least some of the work of specific deterrence in this particular case. 32. Coming to the offender's character, age, antecedents and background for purposes of s 16A(2)(m), the offender is 54 years old. She has no relevant prior history, although she has a couple of elderly PCA matters and a more recent driving matter, her record can be properly put to side in terms of this sentencing exercise and I am prepared to grant to her the leniency of somebody effectively with no criminal record. This is not a particular case where the offender used her lack of criminal antecedents for purposes of the offending. There will be some cases where a person's ability to enact, interact with various agencies is improved because they have no criminal record or they are less likely to be the subject of surveillance. Those principles are well understood but this is not really such a case in my view. 33. I have had the benefit of a lot of subjective material about Ms Lau. It is clear that she is strongly supported by her two adult children, one of whom lives with her. Both of them have put on references, not only about the effect of the proceedings on their mother but improvements that they can see in the way that she is able to order her way now that she has, on all the evidence, committed herself to a significant period of drug rehabilitation in the community. Further, it is clear to me that her counselling with the relevant organisation in the St George area for drug addiction has been terminated by that service, notwithstanding that the offender was prepared to continue to be supervised by that service. 34. The findings and history that are contained in careful psychological assessment of Patrick Sheehan are accorded more weight in this particular sentencing exercise because the offender gave sworn evidence and adopted the history that she had provided to that person. Happily the offender has found herself part-time work. She works in a beauty salon and was initially working three days a week but I am prepared to accept from Mr Wong of counsel that that has now increased to four days a week. 35. I ought to indicate that Ms Wu, who is the registered psychologist with the St George Drug and Alcohol Services, identifies eight occasions on which Ms Lau attended for counselling before her determination that Ms Lau's "condition is stable and we agreed to terminate counselling at the present moment." That material is in her recent report of 10 August 2020. 36. Although I am prepared to accept that it would be a significant impost on the life of the offender's daughter with whom she lived if she were to be imprisoned and that both her children have watched anxiously the effect of delay of proceedings on their mother, this is not a matter where the effect on the family would reach anything like the standard of exceptional circumstances, it is just part of the general matrix of matters that I take into account under this sub-heading in relation to the offender. 37. Apart from her children, Mr Chu also speaks very highly of the offender and her employment is set out in testimonials from Ms Mok and Ms Luo dated respectively 26 and 25 May 2020. It is fair on the history recorded by Mr Sheehan, and the Crown accepts, that the offender had a difficult upbringing which means that there are some circumstances which do not operate to reduce her moral culpability but are an important part of the understanding of how the offender eventually came to be the person that she did in this community. 38. She grew up with a father who was a heavy drinker and would engage in intense arguments with the offender's mother. There was occasional physical violence. In due course the family relocated to Hong Kong when the offender was aged 11 years of age. The whole family lived in a single room and the offender and her siblings were not permitted to attend school, rather being expected to work. She eventually came to this country on a student visa when she was 17 years of age and in due course acquired permanent residency. She then assisted her parents to migrate here when she was herself aged in her late 20s. They lived together as a family for some years but in due course her parents returned to Hong Kong when the offender was about 35 years of age. After the parents' return and ultimately the sale of the family property in which the offender and her two children then lived, there was significant and sustained conflict between the offender and her mother, including some legal disputes. The father died of dementia in June 2019, very shortly after the offender was charged with the current offences. At that time the offender was bail refused and was therefore unable to attend her father's funeral and that is some extra curial punishment that she visited upon herself. She remains somewhat estranged with her sister. 39. The offender's marriage with the father of her two children ended when she was about 35 years of age, coinciding with the return of her parents to Hong Kong. She discovered her husband had a gambling addiction and had lost their savings. She kept custody of the children. She has largely been without any intimate relationship since that breakup. Perhaps unsurprisingly from her middle 30s to cope with stress she commenced to be a heavy drinker, drinking about 20 drinks a day, four or five times a week. That in due course led to her arrest for PCA matters in 2003 and 2004. 40. Ironically, around the time that she stopped using alcohol she first smoked methylamphetamine. She used that drug only occasionally at that time and then commenced daily use in her late 30s to deal with low mood. She was smoking up to about one gram a week. She was then abstinent for some time and when she was back in contact with Mr Lee she recommenced use. It is pretty clear that there is not a causal link between any of the conditions that Mr Sheehan observes in her and the offending, but there is pretty clearly causal link between her use of methylamphetamine and the offending. Of course, offending at the behest of a drug addiction is well understood not to be a mitigating circumstance but it helps understand why somebody that has largely been a law abiding person can fall into this kind of conduct in her middle 50s, which is a fairly unusual pattern. 41. Mr Sheehan assessed that the offender was genuinely remorseful and I accept that assessment. There is other support in the subjective material that I have already referred to that she is remorseful and indeed she expressed her remorse in evidence before me. She is currently in receipt of Zoloft on a daily dose. She is diagnosed by Mr Sheehan as having adjustment disorder with mixed anxiety and depressed mood. While I am satisfied on the balance of probabilities that that has been a subsisting condition, it is not possible to exclude the influence of these matters hanging over her head as having added to the situational distress from which she suffers. 42. To the extent that these proceedings were delayed for about three months because of a reason not the fault of the prosecution nor the offender, I am prepared to take mutely into account the principles expressed in authorities like R v Todd [1982] 2 NSWLR 517. That is, that the anxiety about the potential of having to go back to prison has made the proceedings more difficult for the offender and have done a little bit more of the work of specific deterrence in my assessment. 43. There is no question that the offender has applied herself in a not insignificant way to her rehabilitation. I take into account that she was imprisoned, as I have said, for just short of four months in circumstances of maximum security remand. Additionally, I take into account that she has been on a stringent conditional bail for about 14 months since her release to bail. Initially, for a period of a couple of months, she was on a very stringent curfew and was reporting daily and for approximately the past year she has been reporting three times a week and been on a more generous curfew but a curfew nonetheless. I take into account that stringent period of conditional liberty and the fact that the offender has not reoffended as being a manifest of her high prospects of rehabilitation and, in my view, her unlikelihood of her reoffending again. 44. In terms of some of the pragmatic considerations of sentencing, I take the view that a starting point sentence for this matter, taking into account the objective seriousness of the matter, notwithstanding some of the benign matters raised in the subjective case, mean that a starting point sentence of about three years would be appropriate, after the application of the combined utilitarian and assistance discount, that a 36 month period becomes a little over 25 months. Reducing in a direct fashion from that the four months of remand arrives at an amount a little bit over 21 months. With some rounding that is antithetical to the offender's interest, I determine that a sentence of 22 months is appropriate in all the circumstances. 45. It is clear because of provisions of the Judiciary Act that it is available to me to consider a state sentencing option of an Intensive Corrections Order as mooted by Mr Wong. Although I do not have express evidence by way of a sentencing assessment report, all the material before me persuades me that the offender is somebody who would be appropriate and amenable to a sentence by way of an intensive corrections order. 46. Section 66(2) of the Crimes (Sentencing Procedure) Act in New South Wales requires for the purposes of state determination and by analogue a determination here which method is of the offender serving a sentence is more likely to address her risk of reoffending. That determination must take place without any preconception in favour of incarceration as being the only path for rehabilitation, see Wany v DPP [2020] NSWCCA 318 at para 65 per McCallum JA. However, even if I reach a conclusion on that issue favouring an intensive corrections order, I do not necessarily have to make such an order. I have to weigh that determination with all other matters that are required or to be permitted to be taken into account, including the other manifest purposes of sentencing as in this instance provided at pt 1A of the Commonwealth Crimes Act. I must then synthesise all of those considerations and make a discretionary judgment aimed at imposing a just and appropriate sentence, see s 66(3) of the Crimes (Sentencing Procedure) Act and R v Fangaloka [2019] NSWCCA 173 at 65 and again Wany v DPP. 47. Ultimately, I have determined in this case that it is appropriate to further address any risk of this offender reoffending that she serve a period of 22 months' imprisonment in the community undertaking an intensive corrections order. In arriving at that determination I appreciate that I am extending to the offender some significant leniency, both in the length of the sentence and in the mode of it being carried out. I have had regard to the analogue cases that were relied on by the parties but form the view that this matter is distinguished on its facts from some of the other cases that I have been taken to. 48. On the issue of extending to this offender some leniency, I have given consideration to Dinsdale v R [2002] CLR 321 at para 68 in which Kirby J held that the court sentencing discretion permitted the Court to take into account peculiar circumstances of the case which arouse a measure of mercy. King CJ in the South Australian decision of R v Osenkowski [1982] 30 SASR 212 and 213, also reported at 5 A CRIM R 394, also acknowledged that there must be a place for the exercise of mercy or leniency where that leniency at a particular stage of the offender's life might lead to reform. I take those decisions as not requiring a sympathetic approach leading to mercy per se but rather one where a lesser sentence might result when taking into account the need for rehabilitation. Here I am of the firm view that this offender's prospects of rehabilitation and so protection of the community would significantly decrease were she to be further imprisoned. 49. Accordingly, the formal orders are that the offender is convicted. She is sentenced to a period of imprisonment of 22 months to date from today being 15 December 2020 and expiring on 14 October 2022. I order that that sentence be served by means of an intensive corrections order as well as the standard conditions which are that she commits no further offences and that she accepts the supervision of an officer of Community Corrections. There will be one additional condition that she abstain completely from using prohibited drugs. The offender is to report, initially by telephone, to the Sutherland office of Community Corrections within seven days.