R v Chu [2016] NSWDC 324

District Court New South Wales

Medium Neutral Citation: R v Chu [2016] NSWDC 324 Hearing dates: 15 September 2016 Date of orders: 15 September 2016 Decision date: 15 September 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to imprisonment consisting of a non-parole period of 7 years and a head sentence of 10 years. Catchwords: CRIMINAL LAW – Sentence – knowingly take part in the supply of a large commercial quantity of prohibited drug – Ephedrine – First offence in late 50s – Parity – Sentenced served in a foreign country Category: Sentence Parties: The Crown Wei Piao Chu Representation: Counsel: B Robinson - Offender

Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender File Number(s): 2014/304383

SENTENCE 1. HIS HONOUR: What is it that makes a man who has led an otherwise blameless life for almost 60 years get involved in a serious offence involving a supply of a very large quantity of a prohibited drug? The answer to that question is important in assessing the nature of this offender and the sentence that I must impose upon him for his clearly serious criminal behaviour. 2. The offender, Wei Piao Chu, has pleaded guilty to knowingly taking part in the supply of a large commercial quantity of ephedrine. The large commercial quantity of that drug is 5 kilograms. The offender took part in the supply of 156.53 kilograms of that drug. That is enough to indicate how serious the offender's misconduct was. The quantity of drugs in this case is about 31 times that which would expose the offender to a maximum penalty of life imprisonment with a standard non-parole period of 15 years. They are the maximum penalty and standard non-parole period that apply in the present case. I have taken into account both of them in deciding which sentence to impose upon Mr Chu. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 3. It appears that the offender was part of a syndicate which had as its aim the importation of ephedrine into Australia so that it could be on-supplied. I emphasise that the offender faces no charge in relation to importation and so what I have just said is merely to set the scene for what I am about to describe. Two particular members of the syndicate came to Australia, a man by the name of Wat Kar Wang and the offender. The former flew into Melbourne whilst the offender flew into Sydney. Mr Wat did a lot to facilitate the syndicate's aims. He set up a company. He rented premises. He then flew to Sydney where he checked into a hotel, the same hotel where the offender had checked in the day before. Their attentions then focused on a Kennard's self- storage unit in Petersham. The two of them went to the premises where they rented that unit, with the offender completing what is described as the storer's details section of the agreement. He gave the name Tony Chu with an address in Maroubra. 4. Their behaviour thereafter drew the attention of Kennard's staff who contacted police. Kennard's staff had noticed that the two men I have mentioned plus others, were seen in the relevant storage unit on a daily basis, that on 24 August a truck load of timber crates was delivered to the unit, these crates being stacked in such a way that the view further into the interior of the unit was obscured. Metal tapping sounds could be heard coming from within the unit. Police therefore reviewed the CCTV footage. It showed two men, the offender and Mr Wat, at various times in the Kennard's location. 5. Both men left Australia on 29 August 2014, the offender heading to Hong Kong from where he had come, with Mr Wat going to Kuala Lumpur. The same day that they left, police executed a search warrant in the relevant storage unit. They found a number of cardboard boxes which had been emptied with about a hundred ceramic bowls stacked on the side of the storage unit which appeared to have had false bottoms broken off. There was a white residue there which is presumed through testing to be ephedrine. Police were able to seize 156.53 kilograms of ephedrine as well as tools which appeared to have been used to break open bowls. Police also took a number of DNA swabs for forensic testing which revealed DNA matching the DNA of the offender. 6. Wat was arrested when he returned to Melbourne airport on 8 October. The offender was arrested when he returned to Sydney airport on 18 October. He participated in an interview with the assistance of an interpreter. He gave various false versions of events before finally making some admissions. He stated that he was aware that the syndicate had imported the goods from China and he was to remove them from their place of concealment. He said, "I was in charge to make sure it arrived safely." He said that he was promised payment of $10,000 and that he knew that the substance they were all involved with was illegal. Consistent with those admissions he pleaded guilty to the charge at an early stage and so the sentence I impose upon him will be 25% less than it would otherwise have been. 7. He is now 59 years of age. He has no criminal history at all. He was born in China and has two siblings. His father left the family so that he could better financially support them but having done so found it difficult to return to China. When he was much younger the offender was involved in the Tiananmen Square protests which resulted in the deaths of many hundred civilians killed by the Chinese army. Although he was not threatened or physically injured he was concerned that his identity would become known to the government through video footage and whilst he did not personally witness any of the killings or violence he does recall seeing police and military personnel as a result of which he ran for his life. Because of his ongoing fears of being revealed as having been involved in the protest he sought asylum in Canada and moved there in 1991 as a refugee. 8. He thus has largely lived without family for some time. At one stage he went back to China and married but his wife did not like the lifestyle in Canada and decided to remain in China with their son, the offender living in Canada and visiting his family every one to two years. His father died in 1995 so the offender took on financial responsibility for his mother. He would frequently travel from Canada to support her. She was living in Hong Kong before she died in 2015 after a protracted illness. Whilst in Canada the offender has had many jobs, a removalist, chef, bus conductor, and hairdresser, his longest position being that of a chef which he maintained for over 20 years. 9. However, what led him astray appears to have arisen when he began work in an illegal gambling parlour in China. Through such connections he was offered the sum of $10,000 to come to Australia and do what he has done. What motivated the offender was thus financial gain but it is certainly not a case that he was planning to buy Rolls Royces and champagne. Part of his motivation appears to have been what he perceived as his obligation to support his family. 10. So the answer to the question I posed at the beginning of these remarks on sentence is not easy to ascertain. It is a remarkable position for a man with no prior criminal history to become involved in serious drug supply matters simply for money. 11. Mr Wat has already been sentenced by Norrish DCJ. He imposed a sentence consisting of a non-parole period of ten years with a head sentence of 15 years. I have read Norrish DCJ's remarks on sentence. Of course when I sentence this offender he should not have a justifiable sense of grievance when he compares his sentence with that imposed on Mr Wat. I should emphasise that the principle of parity only works one way, it is not a principal on which the Crown is entitled to rely. 12. It is important to compare the roles taken by each of the two men, Mr Wat and this offender. It does appear that the offender's role was less than that of Mr Wat although I do have to say that no one really knows, all we know is who did what but we do not know at whose direction it was done. I am prepared to proceed on the basis that the offender did play less of a role than Mr Wat and that this offender was far from a principal. As is notoriously the case, those who are the principals in the evil business of drug supply rarely put themselves in a position where they can be easily identified, arrested and prosecuted. Instead, the principals use people like Mr Wat, often men of otherwise good character, who are tempted by the advantage of easy money. That is not to downplay the offender's role. He himself described it as a role which involved him being "in charge" of one aspect of the drug supply operation. He was thus much more than a mere labourer, although it would appear that labouring was one of the functions he did carry out. 13. Although the offender has lived in an English-speaking part of Canada for some 25 years he finds difficulty communicating in English and, indeed, is assisted by an interpreter at this very moment. He will thus serve his sentence in a way which will be harder than those who do speak English well. He is also serving a sentence in a foreign country although not too much can be made of this. After all, it was the offender's deliberate decision to come to this foreign country and commit the offence for which I will shortly sentence him. 14. Drug supply is an evil trade. The drug ephedrine can be converted to methylamphetamine. The evidence before me suggests that 140 kilograms of that drug could have been produced from the drugs found in the storage unit. The misery that the supply of 140 kilograms of methylamphetamine would cause is incalculable, lives would be ruined, people would die, and crimes would be committed as addicts seek to fuel their drug addiction. As the maximum penalty and standard non-parole period suggest, the offence for which I must sentence the offender is of enormous gravity. The principle of parity has operated in a significant way and indeed it is one of the most important factors which have led to me determining the appropriate sentence to impose upon the offender. 15. There are special circumstances in this case. This is the offender's first time in custody. His ability to access counselling and the like in prison will be compromised by his language difficulties but I do have to say that the variation from the statutory ratio is but a small one, the non-parole period I will shortly announce is the least which properly reflects the objective gravity of the offender's conduct. 16. The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 18 October 2015 with a head sentence of ten years. The non-parole period will expire on 17 October 2022 on which date the offender is eligible to be released to parole.