R v Qiang James Chen [2017] NSWDC 187

District Court New South Wales

Medium Neutral Citation: R v Qiang James Chen [2017] NSWDC 187 Hearing dates: 20 March 2017 to 29 March 2017 Date of orders: 17 July 2017 Decision date: 17 July 2017 Jurisdiction: Criminal Before: Letherbarrow SC DCJ Decision: Sentence of 12 years imprisonment with a non-parole period of 7 years and 2 months. Catchwords: CRIMINAL LAW – Commonwealth Crime - Sentence – aid and abet – Import border controlled drug – methamphetamine – commercial quantity – role of the offender – objective seriousness – offender's knowledge as to the nature of and amount of drugs imported Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.2(1), 307.1(1) Crimes Act 1914 (Cth), s 16A(1), 17A, 19AB Cases Cited: GAS v R [2004] HCA 22, 217 CLR 198; Lau v R [2011] VSCA 324; Markarian v The Queen [2005] HCA 25; Power v R [1974] HCA 26; Hili v The Queen [2010] HCA 45. Category: Sentence Parties: Commonwealth Director of Public Prosecutions (Crown) Qiang James Chen (Offender) Representation: Counsel: Mr J Kellaway (Crown) Mr I Lloyd QC (Offender)

Solicitors: Ms S Hatch (CDPP) George Sten & Co (Offender) File Number(s): 2014/299294

REMARKS ON SENTENCE

Introduction 1. On 29 March last after a trial lasting some eight days, the offender was found guilty of the single charge contained in the indictment presented against him, being that between about 10 March 2014 and about 5 May 2014 at Sydney, he did aid, abet, counsel or procure the commission of an offence by another person, namely the importation of a commercial quantity of a border controlled drug, namely methamphetamine, contrary to subsections 11.2(1) and 307.1(1) of the Criminal Code 1995 (Cth) ("the Code"). 2. The maximum penalty for such an offence is life imprisonment and/or 7500 penalty units. 3. The commercial quantity of methamphetamine relevant to this offence is an amount of 750 grams or higher. In the present matter, there is no issue that the bulk amount of methamphetamine imported which was in liquid form, was 37.31 kg which analysis revealed was 37.9% pure, thereby resulting in an equivalent amount of pure methamphetamine of 14.14 kg. There was also no dispute that this amount of methamphetamine, as at the relevant time, had a wholesale value of approximately $4.1 million and a street value of approximately $11.2 million. However, on sentence there is an issue as to the level of the offender's knowledge concerning the amount of drugs imported. 4. The bulk amount of methamphetamine was contained in numerous cardboard boxes which themselves contained several coiled hoses some of which had the drug hidden inside in liquid form. The cardboard boxes comprised a single consignment which arrived by sea from a port in Shenzen, China. Upon its arrival, the true nature of the shipment was discovered and a controlled delivery operation was undertaken on 5 May 2014 at a residence located at 22 Kentucky Road Riverwood. The offender himself was arrested at his own residence on 3 June 2014. 5. Upon being found guilty, I refused the offender bail and he has been in custody thereafter. I also stood the sentence hearing over until 6 July last, at the request of the offender's Counsel at trial, Mr Webb. Before doing so, I also made certain directions as to the filing and serving of any evidence or written submissions to be relied upon at such hearing. 6. In accordance with those directions, the Crown supplied a document headed "Findings of fact for which the Crown contends", dated 28 June last, together with another headed "Crown Sentence Submissions" of the same date. These were marked MFI 1 and MFI 2 on sentence respectively. MFI 1 not only sets out such facts as contended for by the Crown but 3 inferences that it seeks the court to draw therefrom and from some additional facts. At the same time, the Crown also supplied a further document containing summaries of various sentences handed down in this state and in Queensland in relation to offences under section 307.1 of the Code. I marked this document MFI 3 on sentence. 7. At the sentence hearing itself, the Crown handed up a copy of the indictment in the matter which became MFI 4. Earlier, on the day that the offender was found guilty, the Crown tendered the CAN notices and a summary of facts pertaining to the offender's arrest for certain other drug related charges in June 2015. These documents, together with the offender's Criminal History – Bail Report, became Exhibit A on sentence. An updated version of the latter tendered at the sentence hearing became Exhibit B. 8. On behalf of the offender, Mr Lloyd QC, who replaced Mr Webb at the sentence hearing, tendered a letter to the court dated 5 July last and signed by the offender's parents who were both then present. This became Exhibit 1 on sentence. Mr Lloyd QC also tendered a report from Dr Marcelo Rodriguez, psychologist, dated 26 June last, which became Exhibit 2. Lastly, Mr Lloyd QC handed up some written submissions dated 6 July last together with copies of some sentencing authorities and some statistics prepared by the Judicial Commission of NSW, all of which I marked MFI 5. It should be noted that such statistics are a very blunt tool. The offender was not called on sentence. He was also not called at the trial. 9. It should be noted that as this matter involves a Commonwealth offence, the offender must be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth) ("the Act").