District Court New South Wales Medium Neutral Citation: R (Cth) v Wang; R (Cth) v Lin [2013] NSWDC 167 Hearing dates: 25 July 2013 Decision date: 29 July 2013 Before: Neilson DCJ Decision: Offender Wang sentenced to a total of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 6 months Offender Lin sentenced to imprisonment for of period of 6 years, with a non-parole period of 4 years Catchwords: CRIMINAL LAW - Sentence - Import marketable quantity of border controlled drug - Methamphetamine - Offenders arrived at Sydney International Airport having boarded in Hong Kong - Each offender carrying drugs in his shoes - Drugs detected by Customs Service and offenders arrested - Each offender motivated by financial gain to clear debt - Offender Lin was recruited by offender Wang as a drug courier Legislation Cited: Criminal Code Act 1995 s 307.2(1) Crimes Act 1914 (Cth) s 16A(2) Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194 Wong v R (2001) 207 CLR 584 Category: Sentence Parties: Regina (Crown) Hung Pin Wang (Offender) Chun Chou Lin (Offender) Representation: Ms A Cook (Offender Wang) Ms A Van Der Veen (CDPP) Ms K Bagot (Offender Lin) File Number(s): 2012/350810 2012/350819 Judgment 1HIS HONOUR: Each of Hung Pin Wang and Chun Chou Lin stands for sentence as a consequence of having pleaded guilty to a charge that on 10 November 2012 at Mascot in this State he did import a substance, the substance being a border controlled drug, namely methamphetamine, and that the quantity imported was a marketable quantity. That is an offence contrary to s 307.2(1) of the Criminal Code Act 1995 of the Commonwealth of Australia. The two offenders are not co-offenders but committed the same type of crime at the same time and the same place and their backgrounds are similar. The offence which they committed is a very serious offence. That is represented by the fact that the maximum penalty is imprisonment for twenty-five years and/or a fine of $550,000. 2At about 7am on Saturday 10 November 2012 the offenders arrived at Sydney International Airport terminal on Virgin Atlantic flight VS200 from Hong Kong. During that flight the two offenders were seated next to each other in economy class. Each offender answered "no" to a question on the Incoming Passenger Card to the effect that they were not bringing into this country any prohibited items such as, inter alia, illicit drugs. Each of the offenders stated that he intended to stay at the Novotel Hotel when he arrived in Sydney. Each offender was selected by the Customs Service for routine baggage examination. At about 7.50am both offenders were detained for the purpose of a frisk search pursuant to s 219A of the Customs Act 1901. Both offenders were asked to remove their shoes but they refused to comply. A Justice of the Peace was then called to attend. 3The Justice of the Peace had a conversation with the offender Wang with the assistance of an interpreter in the Mandarin language. Wang then consented to removing his shoes. A short time later, customs officers conducted a search under the inner sole of each of Wang's shoes and that search revealed two clear plastic satchels each containing a white crystalline substance. A short time later the Justice of the Peace, again with the assistance of a Mandarin interpreter, spoke to Lin, who consented to the searching of his shoes. Again, the search revealed under the inner soles of each shoe two clear plastic satchels each containing a white crystalline substance. The offenders were then formally cautioned with the assistance of the interpreter. At 12.52pm Wang was arrested by the Federal Police and his rights were explained to him. At about 1.13pm the offender Lin was arrested and had his rights explained to him. 4The crystalline substances contained in the two plastic bags removed from the shoes of each offender were analysed and weighed. The crystalline substance was, in each case, methamphetamine. The pure weight of the methamphetamine imported by Wang was 577.39 grams. The total weight of the methamphetamine imported by the offender Lin was 579.69 grams. 5It is to be noted that the range of offences for the importation of methamphetamine is that the importation of less than 250 grams is a "trafficable quantity", for the importation of which the maximum penalty is ten years imprisonment. A "marketable quantity" is between 250 grams and 750 grams, for which the maximum penalty is twenty-five years imprisonment together with the fine that I have already mentioned. For more than 750 grams the appellation given to the quantity is a "commercial quantity" and the maximum penalty for importation of more than 750 grams is life imprisonment. 6Each of the offenders agreed to be interviewed by the police. It was suggested to Wang that he had imported a border-controlled drug, namely methamphetamine. In response to that the offender said words to this effect: "There is another name in China, we call it ice. I'm not sure because I'm doing this for money, I don't really care." When it was suggested to Lin that he had imported a border-controlled drug into Australia he replied: "I want to know what is the quantity here which is about if you import for personal use to use it, for personal use." He then said that he did not have anything further to say to the interviewing police about the allegation that they had put to him other than that he thought that he was "really too greedy". He later admitted that he knew that what he was importing was something that was prohibited and that it was "drugs". 7The motive put forward by the offender Wang was importation for financial gain. He said words to this effect: "They told me that I could come here to and then I can earn more than fifty thousand Hong Kong dollars". He then said that another person had given him HK$10,000 to pay for his fare to Australia. 8In light of those admissions the Crown has very properly submitted that both offenders admitted in their records of interview that they imported the drugs for financial gain. The offenders were paid the equivalent of $1000 prior to travelling to Australia and were to receive the remainder of the promised money, which appears to be either HK$40,000 or HK$50,000, when they returned to Hong Kong. HK$50,000 was, at the time of the importation now in question, the equivalent of $6,210. The offenders agreed to participate in this drug importation for financial gain in the thousands of dollars but not in the tens of thousands of dollars. 9In Wong v R (2001) 207 CLR 584 at [64] the High Court of Australia identified significant issues in sentencing for drug importation to include, firstly, the amount of the drug, secondly, the offender's knowledge about what was being imported, thirdly, the offender's role in the importation, and fourthly, the reward which the offender hoped to gain from participating in the importation. In the same paragraph their Honours said this: "In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted." 10Much of the evidence before me and most of the submissions relate to the role of each of the offenders in the importation of the methamphetamine here in question. Suffice to say that I accept that the offender Lin was purely a drug courier. He became involved in the importation through the offender Wang. The offender Wang knew that the prohibited drug being imported was methamphetamine, which is known in the vernacular in Mandarin and in English as "ice", but the offender Lin was not aware of the exact nature of the prohibited drug. 11In the DPP (Cth) v De La Rosa [2010] NSWCCA 194, McClellan CJ at CL commenced to say at [255]: "255. Where it is capable of being discerned, the role played by an offender in a criminal enterprise, in particular one involving the importation of narcotics, is of great importance when assessing the objective criminality of the offence... 256. ... However, whether the offender is characterised as a "courier" or "principal" must not obscure the assessment of what the offender did: Olbrich (at [19]) ... A "mere" or "bare" courier may be recruited to bring in border controlled drugs on the promise of a modest reward, commonly though not invariably a monetary sum. A mere courier, although being the importer and critical to the importation, is incidental to the entire enterprise and acts at the instigation and direction of others. He or she will normally have had his or her travel plans, including flights and accommodation, arranged or at least funded by superiors. The mere courier will have had little, if any, input into the travel plans and no input into the planning of the offence... ... 258. In many cases, a person described as a courier may have responsibilities in the enterprise that go beyond simply transporting drugs for a modest fee at the direction of others. Although described as couriers, they play a role above that of a mere courier and should be sentenced accordingly. It was for this reason that the High Court in Olbrich was concerned to emphasise that the label should not be allowed to obscure the reality. In Horvorka, the offender's role extended beyond simply smuggling the drugs into Australia; he was required to extract the cocaine from the polymer. The sentencing judge in that case found that the offender "should be regarded as somewhat more than a mere courier" (at 16). In Diefenbach, the offender, one of four couriers, assumed an organisational role within the group of couriers... 259. In the present case, the respondent had responsibilities beyond those which would be attributed to a mere courier. He was required to make his own travel and accommodation arrangements and importantly (upon further instructions) arrange for delivery of the drugs in Sydney. The respondent was clearly aware of the contents of the bottles and bag which he was carrying. He took many independent steps, including arranging travel plans and booking hotel reservations, to ensure the importation went ahead. Significantly, he was charged with the responsibility of delivering the drugs to their intended recipient..." 12In March 2012 Wang was living in a house in the city of Zhuhai in Guangdong province in the People's Republic of China. That province was until recently known in the English language as Canton province. He was stabbed by a neighbour resulting in an injury to his left hand and or left forearm. The stabbing was a result of a dispute between neighbours about noise. According to Wang's affidavit sworn on 22 July 2013, his "hand was sliced two thirds of the way through". As a result of that injury Wang required two different surgical procedures. The first surgical procedure cost the equivalent of $2,000. Wang was then impecunious and needed to borrow money for that surgery from his mother. A second surgical procedure was needed to repair bones and tendons in Wang's left hand. He had no money to pay for that surgery, which again cost the equivalent of $2,000. He borrowed money to pay for that surgery from an associate of his who was called either "Big Brother Ye" or "Boss Ye". That surgery was performed in May 2012. A medical certificate indicates that the diagnosis upon discharge was of a fracture to the left distal ulna indicating problems at the left wrist. In his affidavit Wang said this: "17. After the second surgery Big Brother Ye told me I had to repay the debt. He said he could put me in contact with someone who had a job for me. This job would allow me to repay the debt, it would also give me enough money to cover some food and living expenses for my family. As I was struggling financially at the time I felt I had no choice but to accept. 18. Big Brother Ye provided my contact details to the man who organised everything. I do not know his name. He contacted me and told me the job would involve carrying some items overseas. I didn't turn my mind to what those items would be initially and agreed to take the job. 19. A few days later I met this man at a restaurant to talk more about the details. I asked what the items would be. He refused to tell me and said 'You will take what you are given'. At this point I became hesitant. I had suspicions about the items I was to carry but was not sure exactly what those items would be. 20. About ten days later I met with this man again and was given the shoes containing the drugs. This was the first time I was told that the items I would carry to Australia were illegal drugs. I told the man that I no longer wished to be involved. He said words to the effect of 'Too bad. I have already purchased the plane ticket. If you refuse to go you will have to pay for the plane ticket.' 21. I felt no choice but to go ahead with the job. My debt was now double. I was told that if I did not repay the debt 'there will be consequences.' The man said 'we know where you live and where your children live. Harm will come to your family'. I was very concerned that my family would be harmed if I did not proceed with the job." 13According to the record of interview given by Wang to the police immediately after his arrest, he met with the "organiser" in the city of Shenzhen where the drugs were secreted in his shoes. He also said that Big Brother Ye gave him the name of the organiser a few days after his initial discussion about this business proposal with Big Brother Ye. In the record of interview he also said that the "organiser" gave him HK$1,500 to purchase the flight tickets to Australia. It is clear from the evidence that, although Wang and Lin eventually went to a travel agent to obtain their flight tickets and details relating to other travel, the money was provided by the "organiser" and that either the "organiser" or someone acting as a member of his enterprise waited outside the travel agency whilst Wang and Lin purchased their airline tickets. It is also stated in the interview given by Wang to the police that the purchasing of the flight tickets was before the travel to Shenzhen to have the drugs secreted in the shoes of each of the two offenders. It is clear from what Wang told the police at the interview that he gave shortly after his arrest, and from the evidence put before me, that Wang and Lin were living together in Zhuhai in 2012 and that Wang told Lin of what he proposed to do to obtain money and that Lin agreed to participate in the enterprise. Wang told the police that both he and Lin were to be paid the same amount of money which is usually described as HK$40,000 but at times has been referred to as HK$50,000. 14It is clear that Wang introduced Lin to this activity of importing drugs. Despite much ducking and weaving, learned counsel for Wang, Ms Cook, could not avoid the proposition that Wang in essence recruited Lin to participate in importing the methylamphetamine into Australia. It may well be, and I accept, that Lin was a willing participant but had Wang not told Lin of what he, Wang, intended to do, Lin would not have become involved in the importation of the methylamphetamine. Furthermore, one must accept as the necessary corollary of what was admitted by Wang that he must have introduced Lin to either the "organiser" and/or Big Brother Ye. As I said earlier, I accept wholly the proposition that Lin was nothing more than a courier, but Wang's role was somewhat greater in that he recruited Lin to act in an enterprise that was being conducted either by Big Brother Ye or by the person I have identified as "the organiser" or by both. The criminality of Wang, therefore, in my view is greater than that of Lin. Furthermore, as the offenders are not co-offenders, parity principles are not strictly relevant, although the nature of each offending is similar, albeit not the same. 15Each offender comes before this Court without any evidence of any criminal record; certainly neither offender has any criminal record in Australia. Each of the offenders was born in Taiwan but there is no evidence from there that either offender has a criminal record. Each of the offenders moved to mainland China to pursue their business activities but there is no evidence from the People's Republic that either offender has a criminal record there. There is no evidence that either of the offenders has a criminal record in Hong Kong. However, the significance of prior good character is attenuated in cases involving the importation of prohibited substances. A person who has a prior criminal record would make a very poor drug courier because his activities may be suspected and he might be refused an entry permit into Australia. Having no criminal record is often a prerequisite for those carrying drugs illegally. 16Neither offender is the user of drugs. Neither offender was drawn into drug importation by reason of his own addiction and the need to obtain money to satisfy his own addiction. 17However, each of the offenders had been unsuccessful in business. Each of them tells me that that was a result of the global financial crisis. Whether that is so or not is largely irrelevant. The fact is that each man had been unsuccessful in business, had accumulated debts and was in a parlous position and needed to make money. Hence each agreed to be a courier of drugs into Australia. However, many, many people run up debts. The running up of debt is hardly a factor which could be seen in any way to mitigate the deliberate importation of prohibited drugs. 18Drug trafficking is a very lucrative business. Millions, if not billions, of dollars are earned through illicit drug trafficking. Because of the significance of illicit drug trafficking, the Courts must be very strict in enforcing the policy of general deterrence. The fact that significant amounts of money may be made only encourages illicit drug trafficking. The end result of illicit drug trafficking is the ruination of lives, in particular the lives of many young people, as this Court has witnessed over many, many years. Illicit drugs destroy lives and therefore the Courts must do their best to ensure that anyone who is tempted to engage in drug trafficking to obtain a financial reward must be deterred from so doing by reason of there being very heavy penalties imposed. As long ago as 24 June 1998, Barr J said in the Court of Criminal Appeal in the matter of Botero that: "To make substantial amounts of money from trading in drugs for the purpose of payment of personal and family debts is no less criminal than to make the same amounts for pure profit." 19I turn now to consider the personal circumstances of each offender. Wang was born on 6 September 1975. He is thirty-seven years old. He married in 2002 and has two children; a daughter aged eight and a son aged five. As I have earlier mentioned, he was born in Taiwan. He was the eldest of three brothers. He commenced school at the age of seven but left school at the age of fourteen in order to work with his mother in the clothing industry. 20He completed compulsory military service in Taiwan and then moved to mainland China in 1990 to find work. He found such work in a family run business making clothes. He opened his own small family business making clothes in 2003. However, he had to close that business in 2009 and was unable to find employment after that. He told me in his affidavit that he had not had a job since 2009. The evidence before me discloses that there is no form of unemployment relief in the People's Republic of China. 21In his affidavit, the offender Wang said this: "Since being in custody my wife has had to go to work full-time. She lives at the factory she works at. She works approximately twenty-eight days each month and only has two/three days off per month. As a result my daughter has been sent to Taiwan to stay with my family and my son is being cared for by a nanny. I understand that my children are not coping very well and are very sad." However, it transpired from the offender's oral evidence that, antecedent to his travelling to Australia, his wife was living at a factory in which she was working full-time and that the offender's two children were living with an aunt and that the offender himself was living with the other offender, Lin. 22An issue that arises is whether a threat was made to the offender that harm might come to his family. Such a threat was never stated by Wang when he was interviewed by the police. Indeed statements made by Wang to the police indicate a lack of such fear. For example, the offender told the police that he had Big Brother Ye's telephone number and that the number of the "organiser" was stored in his mobile phone. In other words, Wang was prepared to tell the police of the telephone numbers of Ye and "the organiser", meaning that he must not have been particularly fearful of them. 23Furthermore, what the offender said in his affidavit about the circumstances of his wife and his children after his arrest is misleading in that that appears to have been the position prior to his arrest. I therefore am not persuaded that I should accept the offender Wang's evidence that he was under any threat from either Big Brother Ye or the organiser. I accept that he became involved in drug importation for the motive of financial gain and that he effectively recruited Lin into the planning of some other offender. 24Wang told me, and I accept entirely, that upon his release from custody he intends to return to mainland China to be reunited with his wife and children and to find employment in order to support his wife and children. 25Since his arrest the offender has been earning approximately $30 per week by working in the prison system. He has been of good behaviour in custody. But I also accept the assertion that the entire experience of being arrested and imprisoned he has found "incredibly distressful". I accept that it will be difficult for him being held in an Australian prison where he was unaware of the customs not only of this country, but also of the correctional system, and where his understanding of the English language is severely limited. 26I accept that it is unlikely that the offender will commit any further offence in Australia. In fact, it would be extremely unlikely, if not impossible, because it is highly likely that on his release from custody the offender will be deported from this country and is hardly likely to be re-admitted under present immigration regulations. However, given the offender's background and his responsibilities, his lack of prior offending and the deterrent effect of serving a custodial sentence in Australia, I believe the offender will learn a lesson and not engage in criminal activity in any place outside Australia. I accept that there are good prospects of rehabilitation. 27I turn now to the offender Lin. Lin was born on 4 July 1978. He is currently thirty-five years old. He married in May 2012. He gave evidence last Thursday that since he was arrested he has been advised that his wife is pregnant, and his wife is due to be delivered of their first child this week. The offender was raised by his grandmother. That appears to be as a result of his parents' divorcing. Whether he was raised by his paternal or maternal grandmother the evidence does not disclose. He has one brother but he has had no contact with that brother since his teenage years. 28The offender went to mainland China to study to be a chef. I understand that those studies were lengthy and took approximately nine years. He opened his own restaurant in March 2010 in Tianjin. However, that business failed during the global financial crisis and he closed it down in 2012. He then had a job travelling between Maccau and the People's Republic of China selling various goods. He then went to Guangdong Province and was working casually as a concreter. However, when his restaurant closed he was burdened with debt and it appears that his work as a casual concreter was insufficient to enable him to discharge his debt: hence he entered into the drug trafficking arrangement. Since he was arrested, the offender has been working as a cleaner in prison and has been studying English. 29The remarks which I have made on the question of rehabilitation concerning Wang are equally applicable to Lin. He is hardly likely to commit any further crime in this country and I am confident that that, assured of what will happen if he offends again in some other jurisdiction, would deter him from again committing a crime. The offender clearly wants to leave the prison system as soon as possible to return to China to meet for the first time the child that is due to be born this week. 30I turn now in respect of each offender to the checklist provided by s 16A(2) of the Crimes Act 1914 of the Commonwealth. I have already discussed the nature and circumstances of the offence. There are no other offences to be taken into account. There is no evidence of any course of conduct by either offender which consists in a series of criminal activities or criminal acts. I have sought to consider the personal circumstances of the offenders but I am also required to consider the personal circumstances of any victim of the crime. There of course is no such direct victim, although there might have been had the drugs been imported without being detected and then been disseminated into the community. Necessarily there is no injury, loss or damage resulting from the offence but there could have been. 31I am required to take into account the degree to which each offender has shown contrition for the offence by either taking action to make reparation or in any other manner. Contrition of course is shown by the plea of guilty. Contrition is also shown by the frank admissions made after arrest by each offender to the police and each of the offenders has expressed in his evidence contrition and remorse. There is nothing that is provided for in s 16A(2) par (fa) which I need to take into account. 32Again, I repeat that each offender has pleaded guilty and I will take that plea of guilty into account. It is conceded that each offender pleaded guilty at the earliest available opportunity and I intend to provide to each offender a discount of twenty five percent of the sentence otherwise to be properly passed upon him for that early plea of guilty. Again, I have already taken into account the cooperation each offender gave to the police when each of the offenders agreed to be interviewed after their arrest. I already pointed out that I must give effect to general deterrence in any sentence to be passed for drug importation. 33I have already adverted to the prospects of rehabilitation. The final matter provided for in s 16A(2) is the probable effect that any sentence or order under consideration would have on the offender's family or dependants, but the authorities make it clear that that is only in exceptional circumstances and here there is no such exceptional circumstance. Wang was not supporting his wife nor his children at the time he committed these offences. Whether Lin's wife was working prior to the offender's being arrested I do not know. The offender is concerned, and I accept that he is genuinely concerned, about how his wife will support herself at the time of her confinement, which is imminent and immediately after that confinement to care for her newborn child. As did Mr Wang, Mr Lin points out that there is no unemployment relief available in China and the inference to be drawn from Mr Lin's evidence is that at least he is unaware of any supporting mother's benefit or the like. It is unclear as to whether there is any extended family that could assist Lin's wife at this time. Lin's grandmother died in 2009. It may be that his wife will need to look to her extended family for support until the offender can be released from custody. 34Much time was spent considering comparable cases, judicial statistics and leading authorities as to what sentence should be passed. For example, Ms Cook points out that statistics available from the Judicial Commission tell me that the median head sentence for offences of this nature is five years imprisonment and the median non-parole period is three years imprisonment. The eighty-percentile range for head sentences is between eight years and three years and the eightieth percentile range of non-parole periods is between six years and one year. Ms Cook took me to other passages of the DPP (Cth) v De La Rosa where the Chief Judge at Common Law commenced to discuss the range of sentences involved at [216]. 35In my view the present cases fall within what his Honour described as the "second group" of cases commencing at [220], rather than the "third group" of cases commencing at [223], which is the category that Ms Cook submitted I ought consider her client. The third category were "mere couriers". They generally expected a financial reward, either relief of debt or a financial reward to be measured in thousands of dollars, or entered a plea of guilty at the earliest available opportunity. Many of them had adverse personal circumstances including drug use and dependency, which is here not the case, and also familial or relationship problems, which, again, is here not the case. However, in those cases the quantities of narcotics involved in the offences tend to lie at the more conservative end of the marketable threshold. Here each of the amount of drugs imported was in the midrange of the marketable quantity and not towards the bottom of the range. 36In the case of Wang, I have determined that the appropriate starting point is a period of imprisonment of nine years. I reduce that by twenty five percent for the plea of guilty at the earliest available opportunity. If my mathematics be correct, which is always problematical, that gives me a head sentence of six years and nine months. I fix a non-parole period of four years and six months. 37In the case of Lin, I commence the sentencing process with a head sentence of eight years. I reduce that by twenty five percent on account of the offender's plea of guilty at the earliest available opportunity. That gives me a head sentence of six years' imprisonment. I fix a non-parole period of four years. Now, four years and six months from 10 November 12 is 9 May 17, is that right? VANDERVEEN: That was my calculation. HIS HONOUR: No one wants any further reasons, do they? VANDERVEEN: No, your Honour. 38HIS HONOUR: Hung Pin Wang, on the charge that on 10 November 2012 at Mascot in this State you did import a substance, the substance being a border-controlled drug, namely methamphetamine, and the quantity being a marketable quantity, you are convicted. I sentence you to imprisonment for six years and nine months, commencing on 10 November 2012. I fix a non-parole period of four years and six months, commencing on 10 November 2012 and expiring on 9 May 2017. 39Chun Chou Lin, on the charge that on 10 November 2012 at Mascot in this State you did import a substance, the substance being a border-controlled drug, namely methamphetamine, and the quantity imported being a marketable quantity, you are convicted. I sentence you to imprisonment for six years, commencing on 10 November 2012. I fix a non-parole period of four years, commencing on 10 November 2012 and expiring on 9 November 2016. Now, Ms Croft, Mr Payton's client, Mr Wang, asked me to recommend that he is to be deported to the PRC, rather than Taiwan. Does your client want a similar recommendation? CROFT: Your Honour, if I could just seek instructions on that point? HIS HONOUR: Certainly. CROFT: Thank you, your Honour, he's asked that an order be made that he be deported to the People's Republic of China. HIS HONOUR: I recommend to the custodial and immigration authorities that if it be determined that upon their release to parole the offenders be deported, they be deported not to Taiwan but to the People's Republic of China. Any other order's sought? VANDERVEEN: No, your Honour. CROFT: No. HIS HONOUR: Do you need a drug destruction order? VANDERVEEN: No we don't, your Honour. ********** 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: 09 September 2013