R (Commonwealth) v SHIH, Hung Wei [2017] NSWDC 211

District Court New South Wales

Medium Neutral Citation: R (Commonwealth) v SHIH, Hung Wei [2017] NSWDC 211 Hearing dates: 9 February 2017 Date of orders: 09 February 2017 Decision date: 09 February 2017 Jurisdiction: Criminal Before: Judges S Norrish QC Decision: Full-time custodial sentence. For full orders see [59]. Catchwords: Criminal - Sentence - supply commercial quantity of prohibited drug - methamphetamine - foreign national arriving from Taiwan - no prior convictions - young offender - difficult upbringing - remorse shown - willing participant for financial reward - courier - early plea of guilty Legislation Cited: Criminal Code 1995 (Cth) Cases Cited: Wong v R (2001) 207 CLR 584 R v Thompson and Houlton (2000) 49 NSWLR 383 DPP v Gow [2015] NSWCCA 208 Cameron v The Queen (2002) 209 CLR 339 Commonwealth DPP v Thomas and Wu [2016] VSCA 237 Bugmy v The Queen [2013] HCA 37 Power v R [1974] HCA 26 DPP v De La Rosa [2010] NSWCCA 194 Veen (No.2) v The Queen (1988) 164 CLR 465 Category: Sentence Parties: Regina Hung Wei Shih - Accused Representation: Counsel: Dixon - Crown Glennon - Accused File Number(s): 2016/94526

Sentence 1. HIS HONOUR: Hung Wei Shih appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court. The crime he committed was that of importing a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity being imported being a commercial quantity. This is an offence contrary to subs 307.1(1) of the Criminal Code (Cth). That offence carries a maximum penalty, I am informed by the Crown, of life imprisonment and/or a pecuniary penalty of 7,500 penalty units. The offender in my view has no capacity to pay a fine or a pecuniary penalty. 2. The offender pleaded at the Local Court and was committed for sentence to this Court, as I understand it, in August last year. His plea, in my view, was entered at the first reasonable opportunity. I propose to accord him a discount of 25% upon the otherwise appropriate sentence to recognise his facilitation of the course of justice by his plea of guilty. I will come back later to the legal principles which inform that decision. 3. All time spent in custody from the time of his arrest at Sydney Airport on 28 March 2016 will be taken into account when fixing the appropriate sentence. 4. There is an agreed statement of facts. Shortly stated the offender on arrival in Sydney having travelled from Taiwan had in one of his items of luggage, a suitcase, two wrapped boxes which Australian Border Force officers unwrapped and in which they found vacuumed sealed plastic bags containing a white crystal substance. This "crystal substance" or "powder" had a pure weight under the Commonwealth provisions of 2,993.2 grams of pure methamphetamine. 5. I am informed the offender was travelling with another man called Mr Wang who has been committed for trial and his trial is listed later this year. The offender arrived in Sydney with a tour group. He had limited English and it would appear that his travel arrangements and even his incoming passenger card had, on his version, had been completed by others. In the passenger card the offender naturally did not reveal that he was carrying any illicit drugs or other substances which might attract the attention of Australian authorities. He was a citizen of what is described in the facts as "Republic of China (Taiwan)". 6. The interception of the packages led to various tests which ultimately, as the facts reveal, led to a proper forensic drug analysis. The total weight of the white crystalline material or powder was 3.769 kilograms. The substance was tested for purity and its "average" purity, to use my word, was 79.4%. It was a drug of considerable purity. There is no evidence as to what the claimed value of the drug was as often appears in these cases. 7. The offender when he came to our country had no prior criminal convictions. No doubt his recruitment to import these drugs was undertaken on the basis that he may not attract attention with no prior convictions and being within a tour group. 8. The evidence the offender has given today, some history he has given to the psychologist and the account he gave to the Australian Federal Police initially provides some picture of the circumstances of his involvement in this affair. He claimed to police that he had been contacted 'on line' by a particular person. In fact his evidence is in this Court that he was recruited by a person that he knew directly. He told the Australian Federal Police that he was "offered a fully paid holiday to Australia", referring to the summary and not the actual recorded interview conducted by the AFP. He was aware of the packages in the suitcase he told the AFP. He claimed to have had a "quick look in the bag", which I do have difficulty accepting, although it would appear given the packaging that he had not opened any of the packages in his suitcase before they were intercepted by the Australian Federal Police. He was told that the packages contained a gift for a friend in Australia and he would be contacted, relying upon the account he gave me in court. 9. I do not know the value of a six day tour of Australia, which he was proposing to undertake as part payment for his involvement in this importation, but clearly his airfares, his accommodation and tour costs had been met. In addition to what he told the AFP and what he told this Court in his signed statement, he says he was to be paid on return to Taiwan, "$300,00 Taiwanese", which I am prepared to accept from the bar table today represents something in excess of $12,600 Australian currency. I would imagine that a year ago, although there would be variation in the Australian value of that Taiwanese currency, the figure would be within that area of $12,000 to $13,000 without having been advised of any spectacular currency changes since that time. He, thus, was to receive a substantial financial benefit on his own account. 10. Of course I could approach with considerable circumspection what he has said about what he was to receive. For example, he made no mention, as I understand his interview with police, of any cash payment to be given to him. The first time that I am aware of any cash payment to be given to him as being stated by the offender was in his evidence. He described it initially as a "small fee". In his evidence-in-chief he was never actually asked by his counsel what a "small fee" was and had to be asked by either me or the Crown. One would have thought it was a detail that was of some importance. 11. The offender's account is that of ignorance of the contents of the box, in that he said that he did not know that it contained "drugs" I have difficulty accepting that. But on his own account it is quite clear that he was at least reckless to the issue of whether border controlled drugs were inside the boxes. It must have been self‑evidently so that it was an illegal activity he was undertaking to be given the benefit of a six day paid trip to Australia in company with another man doing the same thing and also be paid what he claims to be paid $12,600 or thereabouts in addition for undertaking this task. Although I can approach his version of events with some circumspection, I do not believe I can necessarily reject it out of hand. Again I am concerned about the failure not to make a complete disclosure to the police. However, it is to be fairly said that when interviewed by the Australian Federal Police he made relevant admissions that were sufficient to prove his guilt even on that version. 12. The offender must have had some idea as to at least the bulk of the drugs that he brought into the country. As to his knowledge of the precise quantity of the drugs, I could not conclude on the evidence available to me that he had that knowledge. Although he must have appreciated that he was bringing something substantial into the country in terms of its "quantity". He, in my view, could not have known that it was precisely almost three kilograms of methamphetamine or that it was of a particular purity. I have no doubt that people recruited to undertake this task either do not wish to know the full details or are not told the full details as their ignorance protects those who directed them. 13. The offender at the time of the offending was 23 years of age and he has no prior findings of guilt in Taiwan or in Australia. He has provided some history to the psychologist. That report has been tendered in this Court as well as relying upon references that have been written, particularly, it would appear, a reference from his grandfather. His personal upbringing, accepting the account that he has given to the psychologist and in his evidence in this Court which the Crown had the opportunity to test him upon, as well as in the other material, reflects a very "sad" set of circumstances. He and his two sisters were apparently, for reasons not explained to him and thus to me, were abandoned by their parents and were left in the care of grandparents. In the offender's case the offender was raised by those grandparents who are now in their eighties. I would understand that they are quite frail and at the present time, as I understand it, his grandmother has serious health problems and is in the care of others. The detail given to the psychologist suggests that the grandfather is now 83 years of age and the grandmother on my calculation has just turned 83 on 6 February this year. His grandparents being elderly people have a range of health difficulties. 14. The offender has given evidence before me that an incentive for him to agree to involve himself in this importation was to obtain money for the benefit of his grandparents. I have difficulty accepting that this could be entirely true. But I do accept, in the context of accepting the fact that his grandparents have raised him without the assistance of his parents (the offender has not seen his parents since he was abandoned) that he may have intended to provide some financial assistance to his grandparents. 15. The grandfather in his reference to the Court, admittedly not capable of being tested by the prosecution, blames himself. The grandfather describes his family as being "very poor", confirms the bedridden state of his wife and he claims that he "neglected to look after" the offender and feels guilty for the circumstances in which he now finds himself. He, wrongly in my view without knowing all the details of the family dynamic, feels that he did not provide a "healthy home environment" for the offender to grow up in. He speaks of his grandson favourably as being a good student at school, he was a loyal grandson and was never a problem to his grandparents. He has expressed remorse to his grandfather for his conduct and his grandfather seeks the Court to exercise some mercy in his case. 16. The offender in his letter to the Court, which he has adopted by giving evidence, has expressed regret and remorse for his conduct and accepts full responsibility for bringing "the drug Ice" into Australia with "very serious consequences...to the Australian community". He acknowledges the "adverse consequences" of the drug that he brought to the country potentially for Australian citizens and residents. He repeated the "heartfelt remorse" expressed in his letter in his evidence here and I am prepared to accept that he is now remorseful for his conduct. Of course, this is an expost facto reflection. But it usually is. Certainly the offender was not remorseful when he waltzed through the Customs area of Sydney. But that having been said, as I have pointed out, very few people bringing drugs into the country in a fit of remorse suddenly confess the fact that they have committed a crime to Customs officials before Customs or Border Protection officials discover that that is the case. 17. The offender, in his evidence before me, said that he had completed one year of a university course, but had discontinued that course. He would wish to complete that course in what I understood to be some area of hospitality study. He also may wish to undertake some military service, although whether he would be permitted to do that with this conviction is another matter. 18. It would seem, reading between the lines, that in the context of the history provided to the psychologist, the prisoner was introduced to this affair in the context of being separated from his family unit and mixing with the social milieu of his age or of his interests. I do not have any evidence however that he is a person who in Taiwan was actively involved in anti-social conduct. In his account to the psychologist he does not state that he was a drug dependent person, and drug dependency does not explain his involvement in this affair. I do not believe for one moment, however, that in understanding or examining his account of his involvement in this matter I should conclude that he was naïve or ignorant of the use of drugs in the wider community and the fact that drugs are exported from China and from Taiwan to other countries. But the full extent of his knowledge of that aspect of the matter I cannot reach any final decision about. 19. In the context of an offender coming to this country using his own identity and of course being completely open to exposure, I note that the particular parcels that he brought into the country were not "secreted", if that is the correct expression, in some hidden lining of the bag. Inevitably any close examination of his bag would lead to his arrest. So it reflects on consideration of the prisoner's role that the prisoner was not the organiser of this importation, nor was he the person who planned it, but was a willing participant for financial reward, although perhaps ignorant of some key facts that are now known to the Court. 20. I have a psychological report, as I have earlier indicated, from Anthony Diment, whose reports are generally quite good in the range of material that we see of this type. He reflects upon the fact that, "There is no evidence of serious psychopathology in his demeanour", or in his account to the psychologist, there being no evidence of "Psychosis, psychotic content, delusions, anti‑social behaviour, formal thought disorder, hallucinations or unusual verbalisations". The interview was conducted through an interpreter. 21. The assessment of the offender, of course, has limitations with the use of an interpreter and of course the psychologist himself reflects upon "cultural" limitations or inhibitions. The account the prisoner gave of his involvement in the commission of the offence was that he had been working at a restaurant, working hard and long hours. His only friends were his work friends and he wanted to make money to look after his family. He was asked to undertake the task of coming to Australia. He had not travelled anywhere in his life. He thought a holiday in Australia would be an attractive proposition and he claims that the people who recruited him did not say there was anything "illegal" in the bag. He claims that he "didn't give it much thought really". 22. To take up a point made by the Crown cuttingly with a few questions in cross‑examination, the offender had agreed to undertake this enterprise, it would appear, at least a month, perhaps slightly longer before he actually travelled to Australia. He had ample time to reflect upon the matter. I do not accept that he did not apply his mind to what he was undertaking given what I have earlier indicated to be his version of what he was told he was to do. 23. In relation to that account and the accounts he has given me and the account that would appear in his letter, it reflects to my mind the fact that even though in the "formal psychological assessment" there are references to recording, on the scores available from the actuarial test administered, findings of a "severe" range for anxiety and a "severe range for depression", there is nothing in the assessment to reflect a causal connection between his current presentation and the circumstances of the commission of the offence. There is nothing to suggest, in the context of the psychologist freely conceding there is no evidence of serious psychopathology, et cetera, any aspect of a mental disability or condition that drove or influenced his behaviour. 24. I have noted what the psychologist has assessed him by applying the Beck Anxiety and Beck Depression Inventories. But again the statements recorded of his responses reflect his state of mind at the time of the assessment. Of course I am mindful of the fact, accepting the general history that he has given in this Court and elsewhere, of deprivation as a child, separation from his parents and the like, that these events have had some impact upon his life and may well have affected his mental wellbeing to some extent. However, I do not believe that they are sufficiently present or sufficiently analysed by the psychologist to establish the relevant causal connection, which is, of course, important when assessing whether a particular mental condition is of relevance for assessing the weight to be given, for example, to general deterrence, the weight to be given to specific deterrence and the like. 25. I do not see anything in the report of the psychologist and the testing he undertook, with its various limitations, anything to suggest any particular hardships in custody arising out of the results of the psychological testing. In fact the material presented to me shows that he has been industrious in the gaol situation, he has favourable reports from the Department of Corrective Services which have been tendered. 26. He has given evidence before me and has written in his report to the Court or statement to the Court that he is endeavouring to undertaken positive steps whilst in custody. He is not a security problem or a behavioural problem in custody. I appreciate, of course, that with his limited English and a person from a foreign country without connections in Australia there will be some hardships for him in custody, but it must be said, as has been observed by far wiser judicial officers than me on many, many occasions, the fact that a person may serve their sentence in Australia separated from loved ones and the like is not of itself a matter of mitigation in the usual course of events, bearing in mind, of course, he chose to come to this country to commit a crime in circumstances where his detection would inevitably, one would have thought, lead to his separation from his family for some period of time. 27. For the prisoner he will have to undertake the task in the next number of years to reflect upon the fact that his elderly grandparents, to whom he is deeply attached and to whom he is deeply indebted, may suffer deterioration. I trust for his sake that they will be alive when he returns to his own country. But there is a possibility, particularly in the case of his grandmother, that she may pass away before he returns to Taiwan, which would cause him, I accept, considerable sadness. But regrettably, whilst I can take that matter into account as one of many matters I need to take into account, it cannot sway me from imposing an appropriate term of imprisonment for this offending, taking into account all relevant objective circumstances and mitigating factors. 28. I have a reference from the "Abbot" of a monastery of the Chinese Buddhist Association of New South Wales - I am not familiar with the particular monastery. The offender has been involved in activities relating to the abbot's work and has eagerly participated and follows guidance from the abbot "with honesty and willingness". The Abbot writes: "I regularly check his level of maturity as the general public by asking something when he did the meditation and pray in the morning and evening, and most of the things he answered were how to fix his penitence. During the chapel time I hear his confession frequently that he is deeply penitent about his criminal past and the suffering caused to his family and friends." 1. That reflects, again, a presence of mind and the understanding of his current situation far removed from the circumstances of someone with a debilitating mental disability or intellectual disability or illness which impacts upon custody. 2. Of course what I am alluding to in these remarks relating to the psychological report are the observations made by McClellan CJ at CL in the decision of DPP (Cth) v De La Rosa [2010] NSWCCA 194, particularly at paras [177]-[178]. There was never any submission put to me that there were matters, as summarised in those paragraphs from other authorities, that were pertinent in this sentencing exercise. But having said that, of course, the report of the psychologist is relevant in several ways. Not only so far as any relevant general history or other history is concerned, but also in the assessment of the current state of the offender and his reaction to being in custody, which I note. Of course the decision of De La Rosa has relevance here too in the context of what the Crown would urge upon me in terms of supposedly "comparative" sentences and I will come to that matter shortly. 3. I have taken into account all the evidence that has been put before the Court through the Crown bundle and in the material that has been tendered by counsel for the offender. I should say that in the psychological report reference is made to satisfaction by the offender of certain DSM-5 diagnostic criteria. But as I earlier pointed out those diagnostic criteria reflect upon symptomology current at the time of the interview in December 2016. 4. The personality assessment of the offender reveals no significant anti‑social or criminogenic traits. I note in the assessment of the offender, apart from noting his "deep regret", that the offender to the psychologist "appears to have given thought to his situation, who remains realistically concerned as to the welfare of his grandparents..." 5. So far as his prospects of rehabilitation are concerned the psychologist notes the prisoner's difficulties in expressing his need for appropriate medical assessment and treatment whilst in custody which, I suppose in fairness on balance, could be regarded as a matter that may affect the circumstances of his custody. But the other material presented by the defence suggests that notwithstanding some disadvantages in this regard he is still trying to make a go of it in custody without causing the authorities concern which I take into account to his credit. Mr Diment reflects upon the offender having low risk of re-offending. 6. There was some material in statistics from the Judicial Commission given to me, I will deal with those when I deal with this issue of supposed comparative sentences. 7. The Crown has provided its usual detailed and helpful written submissions, however, repeating many matters that appear in written submissions in relation to cases of this type. Although that is not a criticism of this learned Crown Prosecutor nor the Director of Public Prosecutions. Many of the principles referred to are well settled and of course the Crown has an obligation to do its best to draw the Court's attention to not only the general principles that apply in sentences in this regard but also to the relevant legislative provisions. 8. I am required to sentence the offender in accordance with Pt 1B of the Crimes Act 1914, hereinafter to be referred to as "the Act", and particularly have regard to the matters set out in s 16A(2) that are relevant and known to the Court. In that regard of course in s 16A(1) requires that a Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. 9. The nature and circumstances of the offence in my view I have already dealt with, although I have taken into account the matters that are specifically identified by the Crown which is covered in my earlier remarks. These include of course reference to the maximum penalty providing a yardstick, a basis for comparison, between what the Crown described as the case at bar and the "worst case". The issue of identifying an offence as in the worst class case of course has been the subject of some recent comment by the High Court, but I need not dilate upon it. It is an expression that the High Court has discouraged litigants from adopting. 10. Be that as it may, the role of the offender is taken into account and I have reflected upon that. Although a label is usually not satisfactory or necessarily complete it is clear, to use a word that often appears in sentencing in these courts, that the offender was in fact a "courier". That having been said I completely adopt the submission that of the Crown in this regard that a courier as a label does not fully reflect the actual fact that the offender was the person who imported the drugs into the country and thus was the "principal importer". But it is clear to me also, for the reasons I have outlined before, that he was directed by others and such profits as would be obviously available from this offence are primarily to be directed as others, although he was to receive financial benefit. 11. I have taken into account the amount of the drug and I note what the Crown has said, not the subject in dispute in submissions from the offender, about the fact that the weight of the drugs remains a relevant factor, notwithstanding the fact that in Wong v R the High Court struck down the relevant guideline that had been developed by the Court of Criminal Appeal which had been based upon categories of offending by reference to weight and the like. 12. Obviously weight must be given to general deterrence in offending of this type. People must be discouraged from attempting to commit such crimes in Australia. On the hand, and in giving weight to general deterrence, I am required to have regard to the many principles that probably have a sophistication and an influence upon the ultimate outcome that might not be present if someone was to import the same amount of drugs into say Indonesia or Thailand or Malaysia where we know what the ultimate penalty would be. Fortunately I am not required, as a comparative sentencing exercise, to take into account the sentences that are imposed in those other jurisdictions. 13. I am required to take into account, pursuant to s 16A(2)(g), the guilty plea. The Crown has provided some detailed submissions in relation to the fact that it is recognised that a Court may exercise its discretion to provide a discount to reflect the extent to which the plea has facilitated the course of justice. The Crown submits that the guideline in R v Thomson and Houlton, (2000) 49 NSWLR 383, does not apply in Commonwealth offences. It notes, however, the "general principles stated in that case are generally applicable to sentences for commonwealth offences and the range of discount of 10% to 25% is reasonable to adopt". I do not wish to make this case any sort of test case obviously, but I note in regard to what the Crown has written at para 23(a) as to the basis upon which such discounts are provided, even allowing for a more detailed footnote at footnote 20 in its written submissions, that the general proposition identified by the Crown about the importance of Cameron and its dicta in sentencing in New South Wales does not appear to have much substance. One of the comparative case the Crown referred me to was DPP v Gow [2015] NSWCCA 208, although the Crown has very kindly given me the Federal Law Report judgment. Basten J for the majority noted, in the context of dealing with the issue of what weight should be given to the plea of guilty, that in his opinion and thus also in the opinion of the Judge who agree with him, Hamill J, the consideration of Cameron, as previously said to apply in relation to Commonwealth sentences, was not well founded. He noted that Cameron is not authority for the principle that the discount is for facilitating the course of justice, not for "saving the community the expense of a contested hearing" and he noted the structure of s 16A and the failure in the judgment of Cameron for consideration of the relevant Federal legislative provisions to arise. 14. This issue has become, as footnoted by the Crown but not developed in its written submissions, more pronounced in the decision of Thomas and Wu v Director of Public Prosecutions (Cth) from Victoria. It is a very lengthy judgment and I do not propose to burden anyone with any extensive reading, but in the beginning of the judgment the Court unanimously considered the relevance of the plea of guilty to consideration of facilitating the course of justice and the utilitarian benefit for the plea of guilty in Commonwealth matters. I particularly refer to paras [5]‑[7], I note particularly in the context of [7] the conclusions of the Court and the observations of the Court of Appeal at subparagraphs (g)‑(h). As their Honours pointed out in that judgment in any event the usual considerations that arise in facilitating the course of justice as opposed to the utilitarian aspects of the plea of guilty will give rise usually to the same type of discount. In my view whichever way one looks at it or if one wishes to see the two things together, in all the circumstances, notwithstanding not complete disclosure by the offender at the time of the arrest, I should accord the offender in accordance with what the Crown acknowledges is an accepted practice in this State, but for different reasons than expressed in Thomson and Houlton, a discount of 25%. 15. With regard to the further matters that are to be taken into account under s 16A(2) there is the need for adequate punishment, pursuant to subparagraph (k); the offender's character, antecedents and background, (m). The Crown has made some comment about what weight can be given to the psychological report but that submission was prepared in the context of perhaps the possibility of the offender not giving evidence, and I accept the general statements of principles contained in the submission of the prosecution but the Crown has a chance to examine the offender in relation to the history given. I must say in any event I have not concluded, nor was it submitted to me, that the psychological report in its result would substantially affect what would otherwise be an appropriate penalty to impose. I note in relation to this matter that the offender's conduct did not involve any other offending or did not form part of a series of criminal acts. 16. So far as other matters to be taken into account, the probable effect upon the offender's family and dependents is a relevant matter. This was not a matter specifically addressed by counsel for the prisoner and it was not to put to me in the context of the well-established case law, although that is the subject of some discussion amongst various superior courts to mine, that the circumstances the offender and his relationship with his grandparents created "exceptional circumstances". I do not propose to analyse that matter because it was not even the subject of any submission by anybody. I accept the general proposition, and I believe this is the way the case was conducted on behalf of the offender because I heard nothing to the contrary given the defence would have had the Crown's written submissions beforehand, that the circumstances of the offender's relationship with his grandparents and any dependency of them upon him is part of the "general mix" of subjective features. 17. I accept that the offender's presence in Australia and his failure to be in Taiwan may cause some difficulties for his family, but there are too many contradictory accounts between the offender's version to the psychologist and his evidence in this Court, and too many unanswered questions, if I can use that expression, available from the evidence as to the extent to which his grandparents are truly dependent, if at all, upon the offender. I note the offender's evidence today that his grandparents had four children. They are the paternal grandparents, I hasten to say, of the offender. There is no evidence as to the role of other children, even if the son of the grandparents, the father of the offender, has no contact with any of the family. The offender has two sisters. He has no contact with them but I do not know the extent to which they assist. I do not know the extent to which other grandchildren are able to assist. I do not for a moment accept, as would be necessary to come to a finding of exceptional circumstances, that the offender is the only person who if in Taiwan would provide some material support to his grandparents. In fact the offender's own account suggests quite to the contrary. But having said all that, in the light of accepting that in part his motivation was to obtain some money that might have been some assistance to the family, although no doubt not all the money would go to that purpose, I accept that the offender by being in Australia, being separated from his family, is unable to provide assistance to people who are in some form of need. 18. I have to take into account his prospects of rehabilitation, in accordance with s 16A(2)(n) of the Act. I am required to have regard to the deterrent effect any sentence or order may have upon the offender or on others, which is an aspect of general deterrence. Although all these matters are not an exhaustive statement of relevant matters to take into account, no other matters were drawn to my attention. 19. Current sentencing practices are required to be taken into account. In that regard the Crown has referred me to a number of authorities. I do not propose to read those decisions onto the record, but there were five such authorities of the Court of Criminal Appeal, as I understand it, in New South Wales and one from Queensland, which provide circumstances different from this prisoner in a range of ways and quantities of particular drugs different from the drug the offender brought into the country in some instances and/or different in quantities. Although the offender's quantity would be the greatest of the quantities that are referred to in the supposedly comparative cases. I have had regard to those judgments and the results of those decisions, including the decision of the Queensland Supreme Court. Because I am delivering this judgment almost immediately after hearing the submissions I have not gone back to my chambers to search through all the sentences I have imposed in relation to "similar" cases over the last two years (there must, I would imagine, at least ten, perhaps more, up to 20 perhaps), but I am mindful of the range of sentences I have imposed for a range of offending. In various degrees those cases are different from this, but in circumstances where people have brought drugs into the country as "couriers", every individual having different subjective circumstances. 20. I have also had regard to the statistics that were provided by learned counsel for the offender, which are part of this rubric of information that gives the Court some suggested idea of the range of sentences imposed. In relation to the Judicial Commission statistics the sample for an offender with no Form 1 matters, no prior convictions, pleaded guilty and aged 21 to 25 years, which is the profile of this offender, was nine people. I have difficulty accepting that only nine people, even with that particular profile, have been sentenced in the higher Courts, that is the District Court, perhaps the Supreme Court and/or in the Court of Criminal Appeal. But the sample is very small indeed. It indicates a range of sentences between 12 years imprisonment and six years imprisonment. Again, I am denied details as to discounts for cooperation for pleas of guilty, subjective circumstances, quantities of the drug, role and the like from those statistics. 21. I have also had regard, and given it no greater weight and no lesser weight though, to the judgment of McClellan CJ at CL To which I earlier referred. Apart from the passage I referred to in which his Honour, in his usual erudite way, summarised relevant principles relating to the sentencing of offenders with mental disability and mental illness issues relevant to sentencing, his Honour did an analysis based upon the many judgments that were brought to his attention by the respective parties in that decision. His Honour undertook an analysis of the decisions provided to him to try and categorise particular types of offending relating to the import of a commercial quantity of drugs, either under the old Customs Act or under the current provisions in the Criminal Code and also the range of sentences. He described a person with the general profile of this offender, that is a person who could be described as "a courier" where the range of drugs imported was between 1 to 30 kilograms, but generally no more than 7 kilograms, with a range of discounts for pleas of guilty, as attracting a sentence between 6.25 years and eight years with non-parole periods ranging from three to 4.5 years. (See [207] - [215].) The common feature of those people were good antecedents, no prior convictions, hence their employment as couriers, of course, so they will not attract attention. 22. Every such analysis can be seen to have its limitations. So these decisions referred to by the Crown, the decisions to which I have referred, the statistics and my general understanding of sentencing practice, only provide guidance to the range of appropriate sentencing. We know that no one case provide proper comparison, unless it, of course, be a co-offender where issues of parity arise. That does not arise here. Thus, the Court is required to very carefully conclude upon the appropriate sentence. 23. It is in these circumstances, of course, if someone was sitting at the back of the Court and understood that the maximum penalty was life imprisonment, that person might reflect upon a sentence of seven and a half years imprisonment as being somewhat "quite light" in the context of that maximum penalty. But that having been said there is a range of conduct contemplated by the provision which would include conduct that inevitably would attract the maximum penalty where a particular offender was a principal in the importation of a quantity of drugs much greater than here. 24. I appreciate in the High Court's decision of Veen (No 2) in 1988 in answer to a submission made by then Peter Hidden QC, later to be Hidden J, the High Court majority said one can always conjure up a worse case than the case at bar, when Mr Hidden was asked if Mr Veen's case was in the category of "worst cases". When one is dealing with the matter from the perspective of quantity and one is dealing with hundreds of kilograms one is looking at very, very serious criminality warranting condign punishment. But then again, where then lies someone who is involved in the importation of 14 tons of a drug in those circumstances? 25. Be that as it may, I have done my best with the available material in the time I have had to reach an appropriate decision. I have taken into account obviously the evidence given by the offender and the matters raised that are raised in cross-examination, I have averted to those matters in the course of my fact finding. I have taken into account the submissions of learned counsel for the offender, as has been reflected in the findings that I have made. 26. One feature of the offender that is worthy of note in the context of fixing the appropriate sentence is his "comparative youth". It is his comparative youth which leads me to the conclusion that he does he have good prospects of rehabilitation. It has to be said, by reference to the orders that I make, that in making the finding as to the minimum sentence I am required to approach the matter in the knowledge, or from the perspective, of contemplating a release of the offender to parole to be subject to parole supervision. I must apply the general principles that relate to the fixing of a non-parole period to reflect it in the two High Court decisions of Bugmy and also the decision of Power from 1974, to which the Crown has referred in its helpful written submissions. But the reality is, of course, this offender will be deported. But I am not permitted to deny the opportunity to release to parole. In my view if released to parole he would need an extended period of supervision given his youth to adjust to community living and to receive direction in relation underlying contributing factors to his offending that may not be known to the Court, but particularly in relation to his associations. Thus, I have concluded the non-parole period should be, as I have earlier foreshadowed, in the context of the head sentence to be imposed. 27. The Crown's written submissions have been extensively cited by me, with approval I hasten to say. My issues with the Crown's submissions are very narrow and in reality do not ultimately affect what would be the ultimate penalty I would impose, even if I agreed with every word that had been written. They were most useful, as they usually are. 28. I am required in sentencing the offender, of course, to note and have regard to the fact that I can only impose a term of imprisonment if it is the only penalty that can be imposed. It is a penalty of "last resort", pursuant to s 17A of the Act. I am also required in fixing a sentence greater than three years to fix a single non-parole period in accordance with s 19AB of the Act. 29. Could you stand up please, Mr Shih, thank you very much. 30. In relation to the offence to which you pleaded guilty you are convicted. 31. I am going to express this in accordance with the requirements of Crimes (Sentencing Procedure) Act 1999, that is fixing the non-parole period first and the balance of sentence in fixing the expiry dates and the like, as would be required by the State authorities. 32. You are sentenced to a term of imprisonment by way of non-parole period of four years and six months. That term of imprisonment will commence on 28 March 2016 and on my calculation will expire on 27 September 2020. I fix in relation to that sentence a balance of sentence of three years imprisonment. That will expire on 27 September 2023. 33. Expressed another way, in accordance with perhaps the Commonwealth legislation, you are convicted and sentenced to a term of imprisonment of seven and a half years, to commence from 28 March 2016 and in relation to that sentence I fix a non-parole period of four and a half years imprisonment to date from the same date. 34. Mr Shih, as I said at the outset when you finish your non-parole period you will not be released to the community. Your case will be considered by the Parole Authority. If you are eligible for parole to be released to parole you will be released, I would expect, under a particular warrant or order under the relevant Commonwealth legislation. Who knows what it will be in three and a half years-time. You will be released to the custody of the Commonwealth authorities who are responsible for immigration matters. You will be held for a period of time in a facility and then you will be deported back to Taipei. But those are matters over which the Court has no control, I have no control over your release to parole. 35. Mr Crown, any matters from you? 36. DIXON: No, your Honour. 37. HIS HONOUR: Any matters from you? 38. GLENNON: No, your Honour, no matters from me, thank you. 39. HIS HONOUR: Mr Shih, do you understand the sentence? 40. OFFENDER: ..(not transcribable).. 41. HIS HONOUR: Madam Interpreter, you were able to tell the effect of the sentence to the prisoner? Seven and a half years imprisonment, to date from the time that he came into custody with a non-parole period of four and a half years from that same date, that's the essence of what I have said. 42. Of course, Mr Shih, you have your rights of appeal and the Commonwealth has its rights of appeal. It may be that the matter goes to the Court of Criminal Appeal and the Court forms a different view as to the appropriate sentence. That is entirely proper and right that should be so. All I can explain to you is what the current situation is today 9 February 2017. Do you understand? 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: 15 August 2017