District Court New South Wales Medium Neutral Citation: R v Wang [2017] NSWDC 457 Hearing dates: 10 March 2017; 12 May 2017 Decision date: 23 June 2017 Jurisdiction: Criminal Before: King SC DCJ Decision: Convicted. Indicative sentences 2015/144749 001: 10 years imprisonment with NPP 7 years & 6 months 2015/144749 002: 12 years imprisonment with NPP of 9 years 2014/321172 002: 30 months imprisonment Aggregate sentence Sentenced to a term of imprisonment for 13 years and 6 months with a NPP of 10 years, 1 month & 15 days to commence on 14/5/15 and to expire on 28/6/25 and a balance of term of 3 years, 4 months and 16 days to commence on 29/6/25 and to expire on 13/11/28. s166 matters (SEQ ) withdrawn and dismissed I make confiscation orders as per the SMO d 3/2/17 and 10/3/17 handed up in court today Catchwords: CRIMINAL – sentence - supply prohibited drug, methylamphetimine - supply prohibited drug, not less than a large commercial quantity – Form 1 matters - knowingly participate in a criminal group directing any of the activity – knowingly deal with proceeds of crime - supply prohibited drug >indict. quantity (not cannabis) - offender's role - aggregate sentence – subjective matters Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Pearce v The Queen [1998] HCA 57 R v Richards (1981) 2 NSWLR 464 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Category: Sentence Parties: Regina Li Wang Representation: Counsel: Mr P Leask Ms C Davenport SC Solicitors: Ms T Collison Ms J Fahmy; Ms M Zahr File Number(s): 2014/00321172; 2015/00144749 Judgment 1. HIS HONOUR: Li Wang appears for sentence in relation to a number of offences. The first is an offence of supply prohibited drug, being 31.64 grams of methylamphetamine on 31 October 2014. Such an offence is contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The legislation provides for a maximum term of imprisonment of 15 years and/or 2,000 penalty units. There is no applicable standard non-parole period. 2. The offender was committed for trial on 4 December 2015 from Central Local Court and the matter was listed for trial on 13 February 2017. A plea of guilty was entered on 14 February 2017; that is a very belated plea of guilty, however, it is still appropriate to provide some discount for the utility of the plea alone and I will provide a discount of 5% in relation to the utility of the plea in those circumstances. 3. I note that 3 or more grams of methylamphetamine is a trafficable quantity; 5 or more grams is an indictable quantity and the next level of seriousness is 250 grams which is a commercial quantity. 31.64 grams of methylamphetamine is, of course, towards the bottom end of that range of 5 grams to 250 grams. The facts have been agreed and are as follows. BACKGROUND 1. In January 2014, the New South Wales Crime Commission and Police Force Organised Crime Squad began a joint investigation in relation to money laundering by a number of people, including a man called He Ren. As part of the investigation on the morning of Thursday 30 October 2014, police executed a search warrant at He Ren's home, being Unit 1303 2-4 Cunningham Street, Haymarket. 2. In this unit, police located inter alia 474.39 grams of methylamphetamine, $8,430 cash, resealable plastic bags, electronic scales and keys to Unit B201 339 Sussex Street, Haymarket. As part of the investigation on the evening of Thursday 30 October 2014, police executed a search warrant at Unit B201. In this unit, police located inter alia 27.81 grams of methylamphetamine, paraphernalia for smoking prohibited drugs, resealable plastic bags, electronic scales, and keys to B505. 3. While police were at unit B201, the offender got out of an elevator, walked past the unit and asked, "What's going on?" Police asked the offender why he was there. The offender indicated that he was on the wrong floor of the building. He indicated that he was from Unit 505, the same unit number that matched the keys located in unit B201. 4. The offender was searched and police located $2,050 in the offender's wallet. The offender's driver's licence indicated that he lived at Unit 505B, 339 Sussex Street. He was arrested. Police subsequently obtained a search warrant for Unit B505, 339 Sussex Street. 5. At about 2.45am on 31 October 2014, police executed the search warrant at Unit B505. The unit was unoccupied when the warrant was executed. It was a one bedroom unit. In the unit, in a small study room, a cardboard box bearing a sales invoice for 30 BlackBerry model R9320 mobile phones was located, containing: * A piece of paper listing 30 BlackBerry IMEI numbers; * 28 USB phone adaptors; * Three pink phone packages, each designed to hold ten mobile phones; * 29 BlackBerry batteries; * 30 headphone sets 1. Two of those packages each contained eight new model R9320 mobile phones, the IMEI numbers of those phones being contained on the list of 30 IMEI numbers previously referred to. 2. One package contained a further nine new model R9320 mobile phones; the IMEI numbers also being among those on the list of 30 BlackBerry IMEI numbers. 3. On the floor of the study were: * four new BlackBerry Bold mobile phones (in boxes) 1. In the kitchen, in a cupboard, were: * A white disposal plastic cup containing 31.64 g of methylamphetamine with a purity of 78%; * A resealable plastic bag containing 1.89 g of methylamphetamine; * Electronic scales; * A box of latex gloves; * Boxes of resealable plastic bags 1. On a bench top in the kitchen was a further BlackBerry phone. 2. In the lounge room, police located: * On a small table, four mobile phones including a BlackBerry mobile with an IMEI matching one on the list of 30 BlackBerry IMEI numbers; * On a lounge chair, two BlackBerry Curve mobile phones (one of which had an IMEI matching an IMEI on the list); * Keys to a Mercedes-Benz motor vehicle 1. In the drawers of a coffee table, police located: * In one drawer, a BlackBerry mobile phone; * In a different drawer, an expired Chinese passport in the offender's name; * In a different drawer, a series of resealable plastic bag containing 0.86 g methylamphetamine; * the accused's current Chinese passport; * the accused's Chinese driver's licence; * electronic scales; * two BlackBerry mobile phones; one of which had an IMEI matching an IMEI number listed with the 30 IMEI numbers 1. In the bedroom, police located: 2. In a drawer on the side of a built-in wardrobe: * $1,150 (23 x $50 notes) 1. In a drawer under the bed: * three bundles of $5,000 (100 x $50 notes) totalling $15,000; * in an envelope, $1,190 in $50 and $20 notes; * Loose notes totalling $970; * a handwritten note indicating "256004 Berries" 1. In a different drawer under the bed: * in a red shopping bag: four bundles of $10,000 (200 x $50 notes) totalling $40,000; * one bundle of $10,050 being 201 x $50 notes; * one bundle of $100 and $50 notes totalling $4,850; * in a black shopping bag: one bundle of $10,000 (200 x $50 notes); * one bundle of $9,000 (180 x $50 notes); * loose notes totalling $1,900 (38 x $50 notes). 1. In a bedside table drawer, police located: * three BlackBerry mobile phones The offender was subsequently charged in relation to the matter. 1. While not referred to in the agreed facts, attached to the agreed facts are a number of photographs of the BlackBerry telephones as located in their various packaging, together with photographs of a significant number of what are described as unused T-Mobile SIM cards, located in the box on the floor in the lounge room of the unit. 2. Also contained in the bundle of material provided by the Crown in respect of this offence is a statement of facts in relation to Li Wang, in respect of dealing with property reasonably suspected of being the proceeds of crime for an offence committed in March 2011. In my view, it is not necessary at this point to detail those facts other than to indicate that I have read them as being relevant to his past offending in relation to dealing with property reasonably suspected of being the proceeds of crime. 3. Also included in the bundle of facts is a statement, being an expert's certificate from Geoffrey Campey, a computer forensic investigator, which provides expert evidence in relation to the operation of BlackBerrys utilising an encryption system called "Pretty Good Privacy", in short PGP. 4. I note that Mr Li Wang is not charged with any offence in relation to the sale or supply of BlackBerrys which have the additional layer of encrypted security provided by PGP, and also being part of the Canadian Phantom Secure network utilising T-Mobile, being a USA telecom service provider. 5. I am well aware that PGP-encrypted BlackBerrys using the Phantom Secure network and T-Mobile providers are unfortunately commonly used by those who would engage in criminal offending, whether it is in relation to drugs, organised crime or other criminal offending. However, I note that Mr Li Wang is not charged with any offence relating to his possession of the mobile phones and indeed, so far as I am aware, it is not an offence in Australia to provide or sell BlackBerrys which either are or are capable of being further encrypted using PGP and the services of Phantom Secure and T-Mobile. I simply note that material as it has been provided: it has some general relevance perhaps, but is not related to any specific offence that he has been charged with, and I can hardly take into account on sentence that he might have been doing something that was legal. 6. Having been arrested on 30 October 2014, Mr Wang was released from custody on 31 October, on bail. The offences which I am about to refer to were all committed while he was on bail for the offence of supply a prohibited drug. 7. The further offences for which he is to be sentenced are supply prohibited drug, not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine; again, contrary to s 25(2) of the Drug Misuse and Trafficking Act. However, as it was more than the threshold for a large commercial quantity of 1 kilogram, the maximum penalty provided is life imprisonment and/or 5,000 penalty units. There is also a relevant standard non‑parole period provided of 15 years. The quantity concerned in this particular offence was approximately half again as large as the qualifying quantity of 1 kilogram. 8. When being dealt with for that offence, the offender asks the Court to take into account two offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. 9. The first offence is supply a prohibited drug, being more than an indictable quantity of cocaine, being 27.95 grams contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence when dealt with separately is 15 years' imprisonment and/or 2000 penalty units. There is no relevant standard non-parole period. I note that the trafficable quantity is 3 grams; 5 or more grams is an indictable quantity, and 250 or more grams is a commercial quantity. Accordingly, the charge relates to more than five times the indictable quantity, and is significantly less than the next serious level of offending, which commences at 250 grams or more. 10. The second offence on the Form 1 is knowingly participating in a criminal group, directing any of the activity, contrary to s 93T(1A)) of the Crimes Act 1900. The maximum penalty provided for that offence, when dealt with separately, is ten years' imprisonment. There is no relevant standard non-parole period. 11. The offences just referred to, in terms of the supply offences, occurred between 21 March 2015 and 28 April 2015. 12. There is a further offence in respect of which the offender is to be sentenced, and that is supply of not less than a large commercial quantity of methylamphetamine, being 1,996.9 grams. That is almost twice the threshold of what qualifies as a large commercial quantity, which is 1 or more kilograms of methylamphetamine. That offence occurred on 14 May 2015. Again, the maximum penalty is the same as previously referred to, that is life imprisonment and/or 5,000 penalty units and there is a relevant standard non‑parole period of 15 years. 13. In addition, there is an offence on a Form 1 to be taken into account when sentencing him for the 1,996.9 grams. That offence is knowingly deal with the proceeds of crime, being $94,120 contrary to s 193B(2) of the Crimes Act 1900. In relation to that offence, when dealt with separately, the maximum sentence provided is 15 years imprisonment and there is no relevant standard non‑parole period. 14. The facts in relation to those offences are agreed and are as follows. 15. In December 2014, police attached to the State Crime Command and the Organised Crime Squad commenced Strike Force Sylvia, being an investigation into the offender Li Wang and his involvement in the supply of large quantities of prohibited drugs. As part of the investigation, authority to conduct a controlled operation was granted, and a surveillance device warrant issued. 16. At the time, Li Wang resided at 961/3 Naulty Place, Zetland. He is the registered owner and user of motor vehicle, registration number BSA-64G, being a black Mercedes‑Benz sedan. SUPPLY PROHIBITED DRUG MORE THAN A LARGE COMMERCIAL QUANTITY (58044248/1) 1. Supply a prohibited drug, being the offence previously referred to, relating to 27.95 grams of cocaine, is to be dealt with on the Form 1, when sentencing for the offence of supply not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine. 2. At about 3.30pm on 21 March 2015, by physical and electronic surveillance, police monitored a controlled purchase of 499.18 grams of methylamphetamine from the offender in the area of Zetland. The offender drove his black Mercedes‑Benz from his residence to Ascot Avenue, and proceeded to drive around the neighbouring streets. He eventually parked the vehicle in a nearby street and walked to Ascot Avenue, where he entered the vehicle driven by a police undercover operative. Once inside the vehicle, the offender supplied the operative with the 499.18 grams of methylamphetamine and received $60,000 in Australian currency as payment, contained within an IGA shopping bag. The drug was later analysed and confirmed to be methylamphetamine, of the weight already stated. 3. At about 2.15pm on 1 April 2015, through physical and electronic surveillance, police monitored the controlled purchase of a further 500.18 grams of methylamphetamine from the offender Li Wang at the East Village Shopping Centre car park, situated in Zetland. The offender entered the undercover operative's motor vehicle and supplied the operative with the quantity already referred to of methylamphetamine, and received a further $60,000 in Australian currency, contained in a red coloured Vodafone paper bag. The drug was later confirmed to be methylamphetamine, of the weight stated. 4. At about 11.30am on 28 April 2015, again utilising physical and electronic surveillance, police monitored a controlled purchase of 27.95 grams of cocaine from the offender at the Moore Park Supa Centa car park. The offender drove his black Mercedes‑Benz to the car park and supplied the undercover operative with the 27.95 grams of cocaine. 5. Following the above transactions, surveillance monitored the offender attending the Top Ryde Shopping Centre, and the adjoining residential unit complex situated at 5 Pope Street, Ryde. Investigators were aware a co‑accused, Yuchao Qin, was residing at Unit 813E at 5 Pope Street. From about 12.40pm, the offender was observed inside the Top Ryde Shopping Centre. At about 2.50pm, he met Qin in the courtyard area of the unit complex at those premises. At the time, Qin was observed to be carrying, amongst other things, a grey coloured plastic bag. A short time later, the offender, Li Wang, was observed carrying the grey plastic bag and Qin was observed returning to the entrance of Building E, without it. 6. At this time, a second male, since identified as Chun Ming Wu, appeared from the courtyard area and walked over to Qin, and had a conversation. Qin used a swipe card fob to access the building, whereupon Qin and Ming Wu entered Building E together. About 2.55pm, the offender Li Wang entered the lift and travelled to the underground car park. He was monitored handing over the grey plastic bag, which contained 497.8 grams of methylamphetamine, to the undercover operative and receiving from him $66,800 in Australian currency, contained in a red Vodafone bag, as payment for the drugs supplied at that time, and also the 27.95 grams of cocaine supplied earlier. 7. Upon receiving the payment, Li Wang carried the red Vodafone bag containing the $66,800 and returned to the residential unit complex at 5 Pope Street. At about 3.04pm, Chun Wu used the security fob for Unit 904E to allow Li Wang to access the residential complex. Li Wang entered a lift carrying the red Vodafone bag, whereby Chun Wu followed Li Wang into the lift and used the security fob for Unit 904E to access the lift. Chun Wu followed Li Wang out of the lift and a short time later Li Wang was seen in the same courtyard area outside of Building E. At 3.07pm, Li Wang and Qin met in the courtyard outside of Building E. A few seconds later, Qin was in possession of the red Vodafone bag, and Li Wang left the area empty handed. 8. The drug was later analysed and confirmed to be 487.08 grams methylamphetamine. The cocaine was weighed and confirmed to be 27.95 grams. Between the period of 21 March 15 and 28 April 15, Li Wang supplied the undercover operative a total amount of 1,497.16 grams of methamphetamine. SUPPLY PROHIBITED DRUG EQUAL TO OR MORE THAN A LARGE COMMERCIAL QUANTITY KNOWINGLY PARTICIPATE IN A CRIMINAL GROUP DIRECTING ANY OF THE ACTIVITY (Form 1 offence) 1. At about 12pm on 14 May 2015, the offender Li Wang and co-accused Zhengyi Zhang and Si Ji Zhang, thereafter referred to as S Zhang and Ziyan Tang, met at the East Village Shopping Centre, Zetland, where they attended the East Phoenix Dumpling Bar. The shopping centre is bounded by Defries Avenue, Gadigal Avenue, the Eastern Distributor and Cooper Place. After lunch, Tang separated from the group and walked around the centre alone. Li Wang, Z Zhang and S Zhang walked around the centre for approximately an hour before Li Wang and S Zhang walked to the car park area of the complex. 2. Z Zhang met with Jun Jie Liang and Bin Sun outside the main entrance of the complex situated on the corner of Defries Avenue and Gadigal Avenue. About 1pm, Li Wang and S Zhang entered the black Mercedes-Benz BSA-64G belonging to Wang, which was parked in the underground car park of the East Village Shopping Centre, and travelled to the Moore Park Supa Centa car park. During this time, Z Zhang, Liang and Sun loitered on the eastern footpath of Gadigal Avenue. Liang and Sun stood approximately ten metres from Z Zhang for most of the time. On a few occasions, Z Zhang indicated to Sun to stand away from him whilst waiting on the street. During this time Z Zhang appeared to look down the street and continually monitor his mobile phone. 3. About 1.15pm, Z Zhang walked across Gadigal Avenue out of sight. Moments later, Z Zhang walked back towards the eastern footpath carrying a bag. Seconds later, Liang and Sun were seen both in possession of brown coloured bags, and Z Zhang was seen without a bag. Z Zhang, Liang and Sun walked to Moore Park Supa Centa car park, which was a short distance from Gadigal Avenue. Liang and Sun were seen to walk a short distance behind Z Zhang. During this time Li Wang was monitored meeting with the undercover operative seated in the vehicle. A short time later, S Zhang exited the black Mercedes-Benz and approached Li Wang, who was then seated in the passenger seat of the operative's vehicle, and appeared to have a conversation. S Zhang walked to the southern entrance of the car park where he met Z Zhang. S Zhang and Z Zhang then walked north through the car park with Liang and Sun following metres behind each other, both still in possession of the brown bags. 4. The four co-offenders congregated in the vicinity of the black Mercedes-Benz belonging to Wang. Wang exited the operative's vehicle, and approached the vicinity of the four co-offenders before returning to the operative's vehicle. Moments later, S Zhang approached the vehicle where Li Wang was seated in the passenger seat and appeared to have a conversation. Moments later, S Zhang walked towards the three co-offenders and indicated with his hand for them to walk over to the operative's vehicle. Z Zhang and Sun walked in the direction of the vehicle. Z Zhang raised his hand and indicated for Sun to stop. Sun stopped approximately four metres from the vehicle. S Zhang and Z Zhang walked to the passenger side of the vehicle. At this point, it was clear that Z Zhang and S Zhang were the facilitators of the supply of the prohibited drug and were in control of the transaction. Z Zhang entered and sat in the rear seat behind the driver's seat. Sun walked to the vehicle carrying a brown paper bag and entered the rear passenger seat of the vehicle. Liang walked towards the vehicle, however, hesitated and stopped metres from the vehicle and stepped backwards before S Zhang indicated for Liang to walk to the vehicle. 5. As he was doing so, S Zhang walked to the eastern wall of the car park out of view. Liang approached the vehicle and handed Sun a brown paper bag through the open door and walked towards the vicinity of S Zhang, who was standing near the eastern wall of the car park. 6. Sun handed the two brown bags to the undercover operative who was then seated in the driver's seat. During this transaction, Li Wang and Z Zhang were present in the vehicle. Li Wang and the operative then exited the vehicle. At this point, the Tactical Operations Unit intervened and detained the offenders and arrested them. 7. The relevant provisions were complied with. Located within each brown paper bag was 997.2 grams in one bag and 999.7 grams in the other bag of methylamphetamine. Also located in a grey bag were five BlackBerry smart phones. The investigation revealed that Li Wang is a facilitator and a distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates to be used for the purposes of avoiding detection from law enforcement agencies. Li Wang earned $200 per device at the sale price of $2,200, and $10,000 for the supply of 1 kilogram of methylamphetamine. Would I be correct in suggesting, Mr Crown, that that figure cannot be right? The previous suppliers of roughly half a kilogram received payment of $60,000 in one case and $66,800 in the other case. That would seem to indicate that a kilo of methylamphetamine would have a sale price, as far as Mr Li Wang is concerned, in excess of $100,000. I think there is a typographic error. DICKINSON: Your Honour again, I haven't basically aware, I haven't been in this matter previously. If I may just turn my back for one moment to speak to the officer in charge? HIS HONOUR: Yes, certainly. DICKINSON: Your Honour, I've clarified with the officer in charge that $10,000 is the payment that Mr Wang receives, not the total sale price. ORYA: That's so; I can confirm that is the case. HIS HONOUR: Right, I'll just simply repeat. 1. Li Wang earns $200 per device at the sale price of $2,200 and $10,000 of any money paid in respect of the supply of 1 kilogram of methylamphetamine. 2. ORYA: Yes, your Honour, that's right, I can confirm that. 3. Li Wang, Z Zhang and Sun were conveyed to the Surry Hills Police Station where they were interviewed. Li Wang refused to answer most questions asked by the detectives, as was his right. 4. In respect of the offence on 31 October 2014 of supplying a prohibited drug, being 31.64 grams of methylamphetamine, I find that the offence falls below the midrange of objective seriousness, and towards but not at the bottom of the midrange of objective seriousness, taking into account in particular the quantity involved of 31.64 grams. 5. In respect of the offence of supply not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine, being the composite of a number of individual supplies of approximately half a kilogram, over the period from 21 March 2015 to 28 April 2015 by the offender to the undercover operative, in respect of which it can be reasonably anticipated from the facts that whatever was paid for the three supplies, the offender would have been expected to profit by $15,000, calculated at $5,000 per half kilo. ORYA: Your Honour, I thought it was agreed that it was $10,000. HIS HONOUR: That's per kilo - he got $10,000 per kilo. On these occasions he supplied half kilos, so his expectation on those figures would be a total of $15,000 for roughly one and a half kilos at $5,000 per half kilo. 1. On each occasion, whatever be his profit or cost, it is clear that the offender was involved in a significant supply of a prohibited drug which has become notorious in recent years for the adverse effects that it has on individual users and the adverse effect that that inevitably has on the community as a result of the drug users. The legislation does not provide for any distinction between prohibited drugs other than by quantity. The quantities involved here are significant; the combined three supplies are not less than a large commercial quantity. The seriousness of such offending is reflected by the provision of a maximum sentence of life and a standard non-parole period, although more strictly applicable in relation to a defended matter, of 15 years. 2. Methylamphetamine in recent years has penetrated all levels of society and all geographic areas of New South Wales, whether it be cities, towns or country villages. There are now an extensive number of matters that come before the District Court whenever it does circuits in country areas that have some relationship to the use or supply of methylamphetamine. It is well known that it can cause drug-induced psychosis and paranoia, and it is well known that users who are adversely affected in that manner are known to engage in violence for no ostensibly good reason, even without provocation. The drug has become a scourge on our community. 3. A large commercial quantity covers everything from 1 kilogram to whatever it might be. Accordingly, the quantity of the drug is relevant to this particular charge, as it may be very significantly in excess of the amount here. Nonetheless, almost one and a half kilos of methylamphetamine is a very substantial quantity, and in view of the facts, reflecting the three small supplies and the offender's role as the principal in those supplies, I am of the view that this matter is at least at the midlevel of objective seriousness. 4. As to the further offence of supplying not less than a large commercial quantity on 14 May 2015, being 2 kilograms of methylamphetamine, in relation to which, in the evidence before the Court, the offender was anticipating profiting by some $20,000, approximately, I am of the view that the quantity, being more than twice the threshold for a large commercial quantity, and the role played by the offender indicates that the objective seriousness of the offence is greater than the midrange of objective seriousness. Both the maximum term of imprisonment of life and the standard non-parole period of 15 years are indications that the legislature regards such offences as being very serious in nature. 5. In respect of the two offences involving large commercial quantities, I note that the pleas of guilty were entered in the Local Court on 7 September 2016, which is a plea at the earliest opportunity, and the offender is entitled in each case to a discount of 25% for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383. If separately sentencing for the matters contained on the Form 1, in each case I would have also applied the same utility discount. 6. The offender has now been in custody since 14 May 2015 and was in custody in respect of the supply on 30 and 31 October 2014 before being bailed that day. Accordingly, any sentence of imprisonment would start two days before 14 May 2015 to take account of the earlier two days of custody. 7. A significant factor in relation to the offender is that having been charged in respect of the supply of 31.64 grams of methylamphetamine on 30 October 2014 and bailed; he committed all of the further offences while on bail for that offence, the further offences being between 21 March 2015 and 14 May 2015. 8. In respect of the later offences committed while on bail, there is a long line of authority that this is a serious aggravating factor, as expressed in R v Richards (1981) 2 NSWLR 464 by Street CJ at 465: "The protection of the community from those who abuse their liberty on bail to commit further offences calls for severely deterrent sentences which will ordinarily involve a significant accumulation of the sentence for subsequent offences on top of the sentence to be passed for the original offence." 1. That principle is of course only relevant in relation to this particular matter. Subjective Matters 1. The offender did not give evidence on sentence. At the time of the offending he was between the ages of 30 and 31, and he is now 33 years of age. As previously referred to, the offender was previously dealt with in December 2011 at the Downing Centre Local Court in respect of an offence of dealing with property suspected proceeds of crime, an offence committed between 9 March and 12 March 2011. He was sentenced to a term of imprisonment of 12 months with a non-parole period of seven months, resulting in his being released on parole on 20 July 2012, subject to supervision. 2. A past offence of dealing with property suspected of being the proceeds of crime, which, in view of his lack of criminal history at the time of the offending, must have been of some significance to result in a term of imprisonment of 12 months with a seven month non-parole period in the Local Court. That is of course the matter that I previously referred to, having been provided with a statement of facts contained in the Crown bundle relating to the supply of 31.64 grams of methylamphetamine. Those facts disclose that the offender Li Wang had paid for two rail tickets in cash, being a total of $6,000 for a one way trip in Gold Deluxe for two adults from Perth to Sydney. He was accompanied by a co-offender. They took some suitcases with them on the train. 3. They created some suspicion in railway staff during the trip to Adelaide on the Indian Pacific, only ordering room service and wearing the same clothes throughout the three day trip despite large bulky suitcases and backpacks which appeared heavy to move. The information was passed onto the authorities and when they arrived on 12 March 2011 at Sydney Central Station they were identified by waiting officers, and in each of the offender's suitcases large sums of cash sealed inside plastic vacuum bags were discovered, most of the denominations being $100 notes and $50 notes. There was musty smelling dirt between the currency notes. The total sum was counted and found to be $2,517,400. The offender Li Wang also had a further total of $6,945 inside his backpack. 4. It is not difficult to understand in those circumstances the sentence that was imposed in the Local Court, although it might be difficult to understand why it was thought appropriate to have it dealt with in the Local Court. It is past history and its only relevance here is that the offender has a previous conviction for dealing with the proceeds of crime, and one of the offences to be taken into account on a Form 1 is of the same nature, being in respect of $94,120. 5. There is no Pre-Sentence Report. Tendered on behalf of the offender is a psychological report from John Machlin, dated 9 March 2017, a translated letter from the offender's mother, Yunna Wang, who at the time of writing the letter, which is undated, was apparently an inpatient at hospital, complaining about his absence from home for two years and expressing how much she misses him. There is no indication in the letter that she is aware that her son has been charged with any offence. It can reasonably be interpreted as a mother's plea for him to return. 6. There is a further translation document, being a document from the Sichuan Chengdu Number 7 Peoples Hospital, being a diagnosis report in relation to Ms Wang, who is aged 61 and was then in the cardiology department. She was apparently admitted because of repeated occurrences of heart palpitations, chest tightness, an unusual heartbeat and breathing difficulty. 7. Her arteries had hardened and narrowed, resulting in the blockage and insufficient blood to support her cardiac muscle, which in turn caused an abnormal heart rate which exposes her to a risk of heart attack. The document relates to an admission on 20 January 2017. The suggestion from the hospital, in order to assist Mrs Wang, was that close family members should stay with her and take care of her in case of any mishap. I accept that the offender's mother has difficulties as indicated by the report, however the offending conduct here is of a very serious nature, and any difficulties the offender's mother may have had, or may be having, cannot have any significant impact in relation to the sentence to be imposed. 8. The psychological report of Mr Machlin provides some background. The offender is from Chengdu, China. His parents apparently separated before he was born, and he was the only child, remaining in his mother's care but being raised by his grandparents. To support the family his mother worked as an accountant in another province where the pay was higher, returning home only once a year for a week. It is understandable, as expressed, that he looked forward to his mother's visits and was upset each time she left, however as I understand it this is a very common practice in China, particularly in relation to those that live in rural areas where mothers and fathers travel to the cities in order to obtain more gainful employment. 9. His grandparents both died in their 60s while he was still in primary school, and thereafter he attended boarding school while his mother continued to work remotely. He left home in 2004, aged 20, to study in Australia. He obtained permanent residency in 2013 and he has made many trips back to China to visit his mother, who is now retired. She is said to have previously undergone treatment for breast cancer and to also have a debilitating back condition. 10. He has had a number of relationships, the longest being for two years, and at the time of his arrest in 2015 he had been in a six month relationship with a Chinese woman who was awaiting permanent residency. They were planning to marry in 2016. The relationship was terminated as a result of his incarceration. He has no dependents. He is said to have been an average student in primary school with no specific learning difficulties, few friends and he was a victim of bullying, particularly because he lived with his grandparents and because he has a genetic condition causing him to have yellow teeth, which he subsequently had treated by the application of a veneer when he was 22. 11. He boarded throughout high school and inevitably had a sense of loneliness and realisation that he must then manage independently. He has said to the psychologist that in 2004, having arrived in Australia, he was to study business at the University of Wollongong and had more success in making friends. He completed a diploma in Wollongong and then switched to hairdressing, which was a preferred qualification then in applying for residency. He completed his Certificate III at the Carrick Institute in Sydney in 2007/2008, and worked as a hairdresser in a salon in Chinatown for two years until the end of 2010. 12. After his release from custody in 2011, he worked as a tour guide for Chinese travellers for six months before joining a real estate company selling residential properties to the Chinese market, and for that purpose he from time to time travelled back to China. The competition was tough and the income insufficient, which is why he turned to selling encrypted BlackBerrys, which was a more profitable concern. 13. He has no particular adverse medical conditions, nor does he take any prescription medication. There is no family or personal history of mental health issues. He consumed alcohol three or four nights a week, usually enough to feel drunk throughout much of his adult life. He has used cannabis and ecstasy recreationally on weekends since the age of 21. At 26 he started using cocaine, which gave him a euphoric and relaxed feeling. In 2012, at 28 years of age, he was introduced to methylamphetamine or "ice". Although it made him feel strong and invincible, he suffered from the paranoia that followed. He has tried to stop but could not. He used several times a week. He has never partaken in drug treatment or rehabilitation, although he claims to have avoided the use of drugs while in custody. 14. In relation to this offending he claimed he was pressured by his supplier, who had "gangster" links, to participate on the promise it would only be for a short time. He said he did not go to the police as a result of this because he did not feel it would be safe to do so. 15. He continues to speak to his mother every ten days or so by telephone. While in custody he had been attending the Buddhist chaplaincy services and doing meditation until these were cancelled due to budgetary constraints. 16. When asked to reflect on his wrongdoing, he related his understanding from his own experience that drugs are harmful, and he accepts that drugs were spread as a result of his actions. He claims that he would not do the same again even if he was threatened, and he vowed never to use drugs again. 17. I note that these are self-serving statements made to a psychologist which have not been the subject of sworn evidence, subject to cross‑examination, which might allow the Court to make its own assessment as to the lesser role he claims he played, or whether he is remorseful or contrite in respect of the offending. 18. While his plea of guilty in respect of some of the offences was at the earliest opportunity, those offences were in fact committed while he was on bail for the first offence, committed on 31 October 2014. In those circumstances it is difficult to accept that any untested statement by him as to remorse or contrition or a vow never to use drugs again has been genuine. He is said to speak fluent but broken English, and impressed as being of sound intelligence and being grounded in reality, with no sign of perceptual disturbance or discordant thoughts. He is said to be experiencing pervasive mood and anxiety symptoms "which are likely to be causing significant distress and impediment to daily functioning". He is said to meet the criteria for a substance use disorder in remission because he is now in custody, and he is also said to currently fit a diagnosis of adjustment disorder with mixed anxiety and depressed mood. However, such reactions as anxiety and depression are common results from being in custody awaiting sentence in relation to a series of very serious offences, and are hardly surprising or unusual. 19. There is no explanation contained in the psychological report which might relate to any causative factor in his commission of the offences, other than of course his use of prohibited drugs and his desire to support himself by way of profiting from the supply. 20. For the purpose of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. In sentencing the offender, the sentence must reflect the objective seriousness of the offence and that must be reflected by any time the offender spends in custody. As well, the sentence must also reflect the need for both general deterrence and special deterrence, as well as the fundamental purpose of punishment, the protection of society. In relation to this offender it is clear that both specific deterrence and general deterrence are very important factors to take into account. 21. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no alternative to any penalty other than imprisonment. Indeed, to reflect the seriousness of the offences and the offender's conduct in respect of them, any penalty imposed must be a significant one in order to deter others from believing that they can profit from criminal offending of this nature. 22. As I intend to proceed by way of an aggregate sentence, I am required to express the indicative sentence in respect of each of the three offences. 23. The indicative sentence in respect of the offence of supply a prohibited drug, being 31.64 grams of methylamphetamine on 31 October 2014, is a term of imprisonment of 30 months. 24. In respect of the offence of supply not less than a large commercial quantity, being 1,497.16 grams of methylamphetamine between 21 March 2015 and 28 April 2015, the indicative sentence is ten years. As it has a standard non‑parole period, I am required to express the non‑parole period that would have been applied if that sentence was to be given individually, and the non‑parole period that I would have provided is seven years and six months. That indicative sentence also takes into account the supply prohibited drug offence, 27.95 grams of cocaine, contained on the Form 1. 25. In respect of the offence of supply not less than a large commercial quantity, being 1,996.9 grams of methylamphetamine on 14 May 2015, also taking into account the matter on the Form 1, knowingly deal with the proceeds of crime, being $94,120, the indicative sentence is 12 years with a non‑parole period of nine years. 26. The aggregate sentence in relation to all of those matters, taking into account all of the matters that I have referred to and also taking into account the need for some accumulation, as well as the principle of totality as referred to in Pearce v The Queen [1998] HCA 57, is a non‑parole period of ten years and a balance of term of three years and six months, giving a total sentence of 13 years and six months with a non‑parole period of ten years. 27. I have not found special circumstances, but I have rounded down the non‑parole period by one month and 15 days simply to ten years. The sentence will date from the date of his arrest on 14 May 2015. The ten year non-parole period will expire on 13 May 2025. The balance of term, which is three years and six months, will expire on 13 November 2028. Mr Li Wang, you are of course convicted in relation to each of the offences. You will be first eligible for parole on 13 May 2025. If you are released at that time, or at some later time when released, you will be subject to parole until the total sentence expires on 13 November 2028. I have no doubt that you would understand that your release on parole will depend very much on your performance while in custody because it is not automatic; it is a matter for the authorities to determine, and I have no doubt you would understand that when released on parole, if you commit a breach of the terms and conditions of parole, you will no doubt be returned to custody to serve the balance of parole. Mr Crown, there are a number of matters contained on a 166 certificate, being goods suspected of being stolen in or on premises, not motor vehicle, being the BlackBerry phones, dealing with property suspected proceeds of crime, being $2,000, and dealing with property suspected proceeds of crime, being the backup charge in relation to the $94,120. Each of those is to be withdrawn and dismissed? DICKINSON: That is true, your Honour. Would it be beneficial for your associate for me to provide the sequence numbers? HIS HONOUR: That would be helpful, yes, thank you. The sequence numbers I know are 1, 3 and 5. DICKINSON: Correct, that's in relation to charge number H240252594 and those are the three sequences to be withdrawn. I also have some confiscation orders to seek as well, if I may hand those up. HIS HONOUR: I should also indicate in relation to not finding special circumstances that the potential period of parole provided is some three years and six months, which in itself is a substantial period, and in fact six months more than the period of maximum parole supervision as provided by the regulations. Do I take it there is no objection to this? ORYA: No objection, your Honour. 1. HIS HONOUR: I order: 1. Pursuant to s 18(1) cash in the approximate sum of $94,120 found at unit B 505 at 339 Sussex Street, Sydney, on 31 October 2014 be forfeited to the State. 2. Pursuant to the same section cash in the approximate sum of $2,050 found on the person of the offender on 30 October 2014 be forfeited to the State. 3. Pursuant to the same section the mobile phones, SIM cards and packaging listed in Schedule 1 to the Short Minutes of Consent order, found at B/505 at 339 Sussex Street, Sydney, on 31 October 2014, be forfeited to the State. DICKINSON: Your Honour, I also have a separate - apologies for the duplication - I have a separate Short Minutes of Order in relation to forfeiture of a motor vehicle if I may hand those up. ORYA: I've seen those, thank you, no objection. 1. HIS HONOUR: In respect of the Mercedes-Benz, I order pursuant to s 18(1) the proceeds of sale of the Mercedes-Benz 250 motor vehicle bearing registration number BSA-64G on 14 May 2015, together with all interest accrued and accruing be forfeited to the State, and I further order that pursuant to s 42Q(1), the freezing notice relating to the proceeds of sale of the Mercedes-Benz 250 motor vehicle bearing registration number BSA-64G, together with all interest accrued and accruing be set aside forthwith. It is not particularly relevant now, Mr Crown, but could you tell me what was the sale value? DICKINSON: I'm not sure that I could tell you in a short period of time, your Honour. HIS HONOUR: Well, depending on the age of the model, Mr Crown. It might have indicated that Mr Wang was living a lifestyle of some luxury. It does not necessarily follow just from the fact that it is a Mercedes-Benz but some of them are exceedingly expensive. Is there anything I have forgotten? DICKINSON: No, your Honour, thank you. ORYA: No, your Honour, thank you. ********** 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: 05 March 2019