Director of Public Prosecutions v He - [2015] VCC 1473

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 13-00860
CR 13-00960

DIRECTOR OF PUBLIC PROSECUTIONS

XIAOYU HE
SHIYONG LIN

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Melbourne
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v He
MEDIUM NEUTRAL CITATION:	[2015] VCC 1473

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Gibson
For Accused He	Ms J. Condon
For Accused Lin	Mr S. Norton

HER HONOUR: Shiyong Lin and Xiaoyu He, I am going to be directing my sentencing remarks to you, but you can sit down whilst you hear them. I will tell you when you can stand up.

1Shiyong Lin and Xiaoyu He, you have each been found guilty by a jury of one charge of conspiracy to import a commercial quantity of pseudoephedrine, an essential ingredient in the manufacture of the drug ice. During your trial, the Crown alleged, and I now find proven by reason of the jury's verdict that you conspired with each other, and with other unnamed persons, to import pseudoephedrine into Australia in a quantity being a commercial quantity over a two month period, being between 17 January 2012 and 21 March 2012, well over three years ago.
2This is an offence which is extremely serious. It carries a maximum term of imprisonment of 25 years, together with a further option of a significant financial penalty.
3There has been a significant delay in sentencing each of you. The jury returned its verdict on 12 December 2014. The plea for you, Ms He, was not heard until 20 April 2015. The plea for you, Lin, was not heard until 4 September 2015. This has been due to various administrative factors, including the perceived need at the time for you, Mr Lin, to obtain medical reports for use at your plea hearing.
4Thus you have both been in custody for almost ten months at the date of sentencing you today, and I note at this point that it is agreed because prosecution and defence that you have each served 328 days up until today's date in custody for this offence and no other. And I will be making a declaration in relation to those days at the end of these sentencing remarks.
5The circumstances of this offending as set out in your trial were as follows. At the time of the offending, you were a married couple living in Sydney with your three young children. Over a period of approximately two months, as I have said, between 17 January 2012 and 21 March 2012, eleven packages of similar size and description arrived into Melbourne from China.
6Each one of those packages, the circumstances of their entry into Australia, and the arrangements made for them to be delivered to various addresses in Melbourne, was the subject matter of extremely detailed and precise evidence in your trial. The prosecution case was that this abundance of evidence linked each of you so precisely with the importation of these packages that, although there was no direct evidence of your guilt, it was an irresistible inference that each of you in collaboration with a person or persons in China, who could not be identified, had conspired to import each of those packages into Australia, and had directed the collection of those packages in Melbourne, in order to distance yourself from the importation.
7You were each arrested in Melbourne after the collection of the eleventh package. You, Ms He, attended to physically pick up the package together with a woman named Wang, who was not part of this conspiracy and whom I sentenced last year for her part in accepting delivery of this eleventh package.
8You, Mr Lin, were arrested near the pickup location, in circumstances which made it very clear, despite your later denial to police, that you were also closely involved in the collection of that package.
9This eleventh package was later inspected and found to contain a very large quantity of pseudoephedrine, an amount of 2.685.3 grams`in other words, over two-and-a-half kilos, and thus over twice the amount specified in the legislation as being a commercial quantity.
10I want to emphasise that although I have described the circumstances of importation, neither of you have been charged with the separate offence of importing pseudoephedrine in relation to any of those eleven occasions. Rather, your involvement in the importation of the eleventh package has been relied upon in your trial as part of the circumstantial evidence pointing to your involvement in the conspiracy, the subject matter of the conspiracy being the importation of this package, together with the ten earlier packages, into Australia.
11The prosecution alleged that each of you conspired with other persons, as I have said, to import those eleven packages into Australia, and that each of the packages contained pseudoephedrine.
12So I stress that you have not been charged or convicted of importation of pseudoephedrine. You have been found guilty of a quite different offence. This offence of conspiracy, of which you have been found guilty, is complete, even without evidence of actual importation. There was no need for the jury to have found that one of the packages which was imported actually contained pseudoephedrine, let alone that eleven actually contained that substance in order for the jury to find you guilty of this crime.
13However, what I have just said does not meant that the fact of importation, and the circumstances surrounding the importation are irrelevant in sentencing you today. I accept that the circumstances surrounding the actual importation of each shipment, insofar as they can be ascertained, and the quantity of pseudoephedrine imported overall, are both relevant factors in sentencing you.
14I accept that this approach was confirmed in the case of Savvas v R, which was referred to by counsel on the plea hearing. Your counsel, Mr Lin, submitted to me that the case of Savvas did not apply because that case concerned a situation where the quantity of drugs was ascertainable. He said that this did not apply in this case, because here, it is not possible to ascertain the total quantity of drugs to which this conspiracy relates
15He submitted to me that the pathways to the verdict by the jury in your case could be manifold, and that it was not possible to ascertain the degree of clarity that was needed for the application of the case of Savas. He submitted that in sentencing to you, I must walk a fine line between punishing you for participation in an agreement - that is a conspiracy - and improperly punishing you for a charge the Crown did not bring.
16To some extent those submissions were mirrored in the submissions of your counsel as well, Ms He.
17I accept the prosecution submission that Savvas does apply to this case. I accept that that case makes it clear that I am entitled to consider the material that was introduced into your trial.
18If I am satisfied beyond reasonable doubt that one or more of the packages imported contained pseudoephedrine, and if am able to be satisfied beyond reasonable doubt as to the part which each of you played in that importation, then I am entitled to sentence you taking into account those conclusions which I reach.
19Mr Lin and Ms He, this is an important first consideration in sentencing you today, because there are of course many different degrees of seriousness of a conspiracy and a range of possible levels of involvement in a conspiracy. I need to make those factual determinations about the involvement of each of you in the circumstances of the importation, and the quantity so imported, because the decision I make on these issues will affect my conclusion overall as to the seriousness of each of your offending.
20So the questions which I must ask myself at the outset are these. Firstly, did the earlier packages referred to in the evidence contained a border controlled substance? And secondly, to what extent where each of you a party to the importation of each package?
21I turn to the first question. That is, whether the first ten packages contained a border controlled precursor, and if so in what quantity.
22There was a great deal of evidence provided at trial as to the circumstances of arrival of these first ten packages. However, none of those packages was detected or examined by the Customs authorities. Each of your counsel have submitted to me that there is thus no evidence from which I would be able to conclude beyond reasonable doubt that any of the earlier packages contained any illegal substance, although counsel for you, Mr Lin, has conceded in his written submissions that there is evidence of at least one other package having contained pseudoephedrine, as there were granules of pseudoephedrine located at the bottom of the checquered handbag found in the boot of Mr Lin's car at the time of his arrest.
23Both counsel have strongly submitted to me that it is not an irresistible inference that there were drugs in the first ten packages, and that there is not sufficient evidence from the trial from which I could be satisfied about that fact beyond reasonable doubt.
24They point out that the verdict of the jury does not necessarily involve the jury having been satisfied themselves of that fact beyond reasonable doubt. Indeed, they pointed to the fact that the prosecutor did not suggest to the jury that they must be satisfied beyond reasonable doubt that the earlier packages contained drugs as a precondition to a guilty verdict.
25On the plea, the prosecutor conceded that there was no direct evidence that any of these first ten packages contained an illicit substance. However, he submitted that there was overwhelming circumstantial evidence that each of those packages contained illegal drugs, even though conceding that the amount of any such substance in those packages is not ascertainable.
26I declare in sentencing to you today that I am satisfied beyond reasonable doubt that each one of the first ten packages contained some quantity of a border controlled substance. The prosecution assembled an avalanche of evidence pointing to this. I will refer to some of those items of evidence.
27Each parcel has extraordinarily similar in size and markings, and form of address. The arrival of each package was carefully monitored by way of QQ messages, and through repeated access to the online tracking service of the UPS website, UPS being United Parcel Service, the delivery firm which was contacted to deliver each package.
28The evidence of the UPS delivery driver, Mr Hangala, was that on each occasion of delivery of a parcel bar one, the recipient was waiting outside the address and approached him, rather than waiting for the parcel. This evidence reveals an extraordinary eagerness to take delivery of the parcel.
29This evidence links with the evidence of the renting out of the houses at which deliveries were to be made. I am well satisfied from that evidence that the houses were intended to be used as collection points for each of the packages, not as residences.
30It is inconceivable in my view, given the detail contained in the evidence and relied upon by the prosecutor in this plea, that these parcels did not contain at least some quantity of illegal drugs. There is no other reasonable explanation for the great care that was taken with delivery of those packages, or for the extraordinary timing link up between the QQ messages introduced into the trial, and your movements at the time of the deliveries.
31Because of the care with which those packages were handled, and because of the circumstances surrounding the importation of each of the packages, it is an irresistible conclusion that those packages contained some quantity of illegal drugs.
32Thus I sentence you on the basis that the conspiracy itself was a serious, relatively sophisticated enterprise. It involved multiple occasions of importation. It involved not just delivery on one occasion - that is, the occasion of the eleventh package - but delivery on eleven discrete occasions of a quantity of illegal drugs, the total quantity of which cannot be ascertained, but which must logically have been some amount greater than at least the quantity contained in the eleventh delivery.
33The next question I need to determine is each of your relative roles in the conspiracy; whether as alleged by the prosecution, the arrangements for importation, acceptance and collection of the first ten packages, as well as the eleventh, was done at the instigation and direction of either or both of you.
34It was submitted to me by the prosecution that I should sentence each of you as having an equal, hands-on involvement in the importation. It was submitted that you should each be sentenced as principals and organisers of the conspiracy. I will not rehearse each one of the pieces of evidence on which the prosecutor relies to support that submission. They are set out in Exhibit B to the prosecution submissions received on the plea.
35The prosecutor invited me to make that finding based on all the circumstantial evidence in the case, and particularly on the basis of the precise symmetry between your actions, your location at various times as proven by the satellite navigation system found in your possession, and the records of the location of phone calls from phones found in your possession, and the records of other descriptions found in your possession when you were apprehended.
36Further, the prosecution relied upon email messages, described in the trial, and previously referred by me, as QQ messages. The prosecution relied on those messages both as to the content of the messages, and the timing of those messages in conjunction with the timing of the arrival of the first ten packages, and also in conjunction with the movements of each of you, and particularly of you, Lin, at the time of the arrival of each of the packages.
37The evidence presented by the prosecution in this trial was unparalleled in my experience in its precision and detail. The prosecution contends from that evidence that each of you have a central and essential involvement in the conspiracy, and that you should be sentenced as being roughly equal in your responsibility.
38I need, of course, to make that finding of fact separately in relation to each of you, and in relation to each of the deliveries. It is not permissible for me to conclude that just because you were each heavily involved with the circumstances of importation of the eleventh package, you must have each been equally heavily involved in the importation of the earlier packages.
39It was clear on the prosecution case, and indeed from the wording of the indictment, that the prosecution case was that there were other persons involved in the conspiracy. Those persons appear to possibly be persons located in China, but those persons were not able to be identified from the evidence in the trial.
40Counsel for you, Ms He, submitted to me that because it was impossible for me to ascertain the identity or role of this other person or persons, it was not open to me to make a finding about each of your roles in the conspiracy. Given that this posited China connection was a mystery, she submitted to me that this case was similar to that of Nguyen and Phlommysak, where President Maxwell commented:
"Problems may emerge when a sentencing court attempts to categorise the role of an offender in a drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known."
She suggested that the guilty verdict in relation to you, Ms He, may be unrelated to any determination by the jury of your role in Australia or in China, or any acceptance that you had a principal role in the Australian end of the process. She submitted that it was just as likely to be merely a reflection of the jury's acceptance that you knew of the other importations, rather than involving acceptance of the prosecution allegation that you were closely involved in organising and planning them.

41I accept that I am unable to characterise either of you as being the principal organiser of this conspiracy, given that I have no knowledge of the full extent of the conspiracy. However, it will be clear from the comments that I am about to make that I have formed the view that there is sufficient evidence in the trial to establish beyond reasonable doubt that each of you did have a significant, hands-on role in this conspiracy.
42I turn first to analyse the evidence against you, Mr Lin. There was ample evidence in the trial of your close involvement in the importation of each of the eleven packages. The detail of the case makes it plain without any doubt at all that you were very closely involved, as I have said. In fact, I did not understand your counsel to suggest on your plea that the evidence could be construed to suggest you to have some lesser role than Ms He.
43I do not propose to set all the evidence as to your involvement which was called in the trial. It is accurately summarised in the prosecution plea opening, which was made an exhibit in this trial, and I particularly adopt paragraphs 26 to 81 of that document as providing an accurate summary of the evidence from the trial, which I accept in coming to my conclusion as to your close involvement with this importation.
44I am satisfied beyond reasonable doubt, Mr Lin, that you were at least one of the principals and organisers of the conspiracy from the Australian end, and that you played an essential and central role in that conspiracy.
45I now turn to you, Ms He. Your counsel asked me to distinguish between your role and that of your husband, Mr Lin, and to find that you played a lesser role. The first matter relating to this issue arises out of concessions made on the plea by counsel for Mr Lin. I was specifically told on the plea by counsel for Mr Lin that he accepts that the evidence from the trial points to him having played a greater role than you in the organisation, direction and coordination of the importation.
46I put his concession in that way deliberately, because Mr Lin also protests that he is innocent of this charge, and therefore does not concede his involvement at all. The highest that he can say, therefore, is that he concedes that the evidence against him is more compelling than the evidence against you.
47I accept the prosecution's submissions that it is not open to defence counsel to agree amongst themselves as to what weight should be placed on the participation of each of you in the conspiracy. This is matter for me to determine on the evidence which I accept from the trial.
48It may have been different if either of you were prepared to give evidence on the plea from which such a determination could be made. However, Mr Lin is not a position to put forward as a positive proposition that you played a lesser part in the conspiracy than him for, as I have said, his position throughout the trial has been that he himself was not involved in the conspiracy at all. In those circumstances, any submission made by him as to your relative level of involvement in the conspiracy, in my view carries little weight.
49The next submission that was made was based upon some suggestion in the plea materials as to you, Ms He, having a subservient relationship with your husband. As I understand it, I was invited to use this evidence to infer that you played a lesser role than him in this offending.

50Mr Stephen Gault, in the report to which I will later refer says that you told him that your husband was the decision maker in the family, whilst you were yourself in charge of family duties such as cooking, cleaning, washing, and looking after the children; and that you described yourself during your interview with Mr Gault as being compliant with the wishes of others in the past, but now learning that you have to think for yourself in the future.
51Ms He, there was no positive evidence in the trial of you being in any way servile or passive, nor did your reaction in the record of interview indicate a servile or passive nature. Further, it appears from the evidence to which I will later refer that your husband is the one with the reduced intellectual capacity, not yourself. In your plea, I noted that you did not go so far as to suggest that your will had been overborne in any way by your husband in committing this offence. In part, this is of course because you as well as he maintain still your innocence in relation to this offence.
52Given that there was no positive evidence in the trial way one way or the other, I do not regard any of the observations of Mr Gault as establishing or supporting any inference that you performed a lesser role in this conspiracy than your husband, whatever the domestic allocation of household roles may have been. I find his observations to that effect of little value to me in assessing your relative role in this conspiracy.
53I turn now to consider the evidence from the trial itself of your involvement. Your counsel submitted that the evidence established that you had much less overt participation in the conspiracy than Mr Lin. You were not present in Melbourne on at least three occasions when parcels were delivered. Your counsel suggested that the only evidence of active participation by you that is relied upon, is one QQ message from your phone, and your physical collection of the eleventh package.
54As I have said earlier, your counsel submitted to me that the finding of the jury of your guilt, was consistent with you merely knowing of the importation of the other ten packages, and not being directly involved in the importation process.
55Bearing in mind that I must be satisfied beyond reasonable doubt about this finding before using it in sentencing you today, your counsel put to me that the evidence threw up merely a suspicion of greater involvement, but that I could not be so satisfied beyond reasonable doubt.
56Your counsel emphasises that there is evidence that the QQ account which was said to have been used by you, was not used exclusively by one person. She submitted that I would not, therefore, be able to be satisfied beyond reasonable doubt that the sender of the particular QQ messages relied upon by the prosecution to establish your involvement in the earlier importations, was actually you. And as I have said, she pointed out further that there was only one potentially incriminating QQ chat entry actually found on your own iPhone.
57She submitted also that the evidence of your presence in China at crucial periods is equivocal, as you had domestic reasons which could just as easily explain your movements between China and Australia.
58I have already indicated that I accept that a full understanding of this conspiracy is impossible, because there are so many unknowns about the full extent of this drug enterprise. I simply do not know how many people were involved in the conspiracy, either in Australia or in China.
59However, Ms He, although I have accepted this, and I agree that it is impossible to know one way or the other whether you were the coordinator of the supply and delivery of drugs whilst you were in China, I accept that the prosecution evidence overall, overwhelmingly points to your close involvement in the importation of each one of the eleven packages.
60The prosecution led detailed evidence on which I rely in coming that conclusion. Once again, that evidence is contained in the prosecution opening for the plea, which is an exhibit on this plea. The sending of the QQ messages tie in with the times of collection of the packages; they tie in with the whereabouts of both you, He and Lin, at the time the packages were collected. They tie in with the various visits made by you, Ms He, to rent safe houses to be used for collection of the packages.
61It is not just a case of there being evidence of only one QQ message being sent by you, Ms He. It is true that there was evidence of only one on the phone which you regularly used. There were, however, QQ messages sent on other devices to which you had access, which link you to other deliveries, and which carry the inference by their wording that you were closely involved with and monitoring the subject matter of the conspiracy in conjunction with your husband. When read in context, those messages can be seen to be discussions between yourself and Mr Lin regarding these matters.
62The principal items of evidence relied upon by the prosecutor as to tasks specifically carried out by you, Ms He, in furtherance of the conspiracy, are as I have said, set out in the prosecution further submissions dated 27 May 2015, which are exhibited on this plea.
63They include liaising with Mr Lin whilst in China regarding the delivery and collection of consignments one and two; including recording the details in your Angry Birds notebook; contacting the owner of Raleigh Street in order to rent that property; issuing instructions to Lin regarding the delivery of various packages; travelling to Melbourne with Lin; accessing the UPS website to check on the progress of the eighth and ninth packages; physically obtaining the funds to purchase the Mazda car; and your involvement in renting out the property at 1 Winifred Street, Oak Park.
64I accept, Ms He, that you were in China at the time of the arrival of the first two packages, and that you were not present at the time of arrival of parcels four, five and eight. I do not consider that your physical absence diminishes the prosecution case against you to any marked extent.
65I note, however, that the prosecution also relies in the submissions which have been filed on the fact of your return to China. I do accept your counsel's submission that the evidence of your return to China is equivocal, and I have given this evidence little weight one way or another in my assessment.
66Ms He, there is no one piece of the evidence which establishes beyond reasonable doubt that you were involved, together with Mr Lin, with the process of importing the packages which I have described into Australia, and then arranging for those packages to be delivered. However, the overwhelming thrust of the evidence, and the precise intersecting of all the evidence to which I have referred, when each of those matters established by the prosecution are put together, establishes that this is so beyond reasonable doubt.
67It will be evident, therefore, from what I have just said that I am persuaded beyond reasonable doubt that you, Ms He, were actively involved in the conspiracy. Not only is there no evidence that your will was overborne by your husband in respect of your participation, but the evidence in the trial shows you acting in a very confident and forthright manner in relation to the conduct which I have described.
68I do consider, however, that overall there is less evidence of your involvement than that of your husband in relation to some of the deliveries. I therefore propose to sentence you as a significant, though not necessarily essential or equal participant in the conspiracy.
69Now I will stop there. Madam Interpreter, would you like a break, or are you happy to continue?
70INTERPRETER: I'm happy to continue, Your Honour.
71HER HONOUR: Thank you. I now turn, Mr Lin and Ms He, to the sentencing principles which I must apply in this case. I am sentencing each of you for a Commonwealth offence. Thus the provisions of the Commonwealth Crimes Act apply, in particular s.16A.
72That section provides that I must impose a sentence upon each of you that is appropriate to the circumstances of the offence that you have committed. In doing so, I must take into account the nature and circumstances of that offence, and various other matters which are set out in that section.
73They include your personal circumstances; the degree to which you have shown contrition; the degree to which you have cooperated in the investigation of the offence; the deterrent effect of my sentence; the need for you to be adequately punished; your character; antecedents; age; means; and physical or mental condition; your prospects of rehabilitation; and the probable effect that any sentence would have on your family or dependents.
74The Act also tells me that I may only sentence you to a period of imprisonment if I am satisfied that no other sentence is appropriate. That is clearly the case here, Mr Lin and Ms He, as each of your counsel has conceded on your plea.
75The prosecutor provided me with a table of cases. Those cases were of varying relevance to my sentence today. Only one of them was a sentence from a trial; the others were all pleas of guilty. I see this table as being relevant only in a very general sense, because I must sentence you on the particular facts of the conspiracy of which you have been found guilty, and in respect of the facts which I have found proven from the evidence at trial, and not on any mathematical basis involving comparison of other cases.
76I turn first to the principle of general deterrence. Although the principle of general deterrence is not specifically mentioned in the Act, it is self-evident that general deterrence must be the preeminent principle in sentencing you today.
77As was submitted by the prosecutor, the difficulty of detecting importation offences, and the grave social consequences that follow from the introduction of these drugs into our community, mean that deterrence must be given very significant weight in sentencing each of you. This is because the sentence which I will impose upon you today must signal to other would-be drug traffickers that they will be treated sternly by the courts.
78The prosecutor reminded me that the legislation places emphasis on the quantity of drugs imported, and not on the street value of those drugs. Here, the importation is of a significant quantity, a quantity over twice the commercial quantity. It is a quantity capable of wreaking significant damage on our community.
79The prosecution submitted to me that this may be seen as a serious example of the offence of conspiracy. I accept from the evidence in the trial that each of you were involved in the conspiracy to the extent that I have just outlined, indicating also that I have found the involvement of you, Ms He, to have been significant but not essential to the success of the conspiracy.
80Cases relied upon the prosecutor in supporting his submission indicated that in comparing other sentences for offences such as you have committed, I must look particularly at the quantity of drugs imported; the role each of you played in the importation; the reward which each of you obtained from your criminal activity; the lack of any assistance given to the authorities in connection with the conspiracy; your criminal history; and also your prospects for rehabilitation.
81Counsel for you, Mr Lin, reminded me that I must be careful not to punish you or impose a further penalty in respect of the importation of the eleventh package. I am punishing you for being a party to the agreement, rather than punishing you for the importation itself.
82I have set out those principles in relation to the issue of general deterrence, and I accept that they must be applied in sentencing you today.
83I turn now to the question of specific deterrence. I accept that in sentencing you today, specific deterrence is also relevant to each of you. That is, the need to deter each of you from reoffending into the future. The total period of time encompassed in this offending, from the importation of the first package to the importation of the eleventh package, is two months. It is a significantly short period of offending. The fact that the criminal behaviour lasted for such a short time is ordinarily a matter to be taken into account in your favour in sentencing you today, and particularly to be taken in your favour in consideration of the issue of specific deterrence.
84However, the prosecutor submitted to me that this period should be seen in the context of the preparation of the conspiracy prior to that time, and also to a limited extent in relation to the anticipated continuation of the conspiracy at the time that it was prematurely ended with the arrest of both of you on 21 March 2012.
85I must of course be careful not to sentence you for offences which you do not commit. That means, I must be careful to sentence you for your criminal behaviour which commenced on the date set out in the indictment, and continued only up to your arrest on 21 March 2012, and no further.
86However, I accept from the evidence that you did not intend the conspiracy to finish on 21 March 2012. Your future plans were clear from the renting of the third safe-house, the property at 1 Winifred Street, Oak Park. I find this property was rented to be used for future deliveries. I find also that the purchase by you in March 2012 of another motor car was purchased because you would need a reliable car in order to travel between Sydney and Melbourne to retrieve future deliveries.
87Those matters are relevant to the issue of specific deterrence. That is, the prospect of you both reoffending into the future. They mean that I do not sentence you on the basis that this was an event which was expected to continue for only a limited time. They mean that the benefit you would otherwise have obtained from the fact that the offending was so short is offset to some extent at least, by my concern that had you not been discovered, you would have continued to offend. This means that my sentence must be clearly framed to deter you from doing so in the future.
88I also accept that there is some evidence of enrichment to both of you by way of telegraphic transfers of large sums of money, partly put towards the purchase of the motor car. These transfers of money are significant, given the otherwise parlous state of your finances, as demonstrated in the evidence. It appeared to me that that money was transferred into the bank accounts of you, Mr Lin, rather than you, Ms He, but I think it undeniable from the plea that you, He, would have benefited as much from that money as did Mr Lin.
89There is a further aggravating aspect of the conspiracy asserted by the prosecution. It is that others were recruited or used to collect several of the parcels. In relation to each of you, I am satisfied beyond reasonable doubt that the conspiracy did involve recruitment and participation of others identified in the evidence at the trial, including Ms Wang and others not conclusively identified, although identified to some extent in the trial. I am satisfied also that you did that in order to provide separation from yourselves, thus reducing the risk of detection, and I treat this aspect as an aggravating factor in relation to each of you.
90I now turn to the prosecution submissions in relation to the question of motive. It was submitted by the prosecution that it does not appear that either of you were motivated to enter this conspiracy by any extenuating circumstances such as drug addiction. The conspiracy was entered into for the purpose of enrichment, not to feed a drug habit. A significant amount of money was received from the enterprise, as evidenced by the sums of money deposited into Mr Lin's bank account, as I have said.
91I do accept this prosecution submission to some extent. However, I also accept, as was submitted to me particularly by counsel for you, Mr Lin, that you were each in a parlous financial situation at the time of this offending.
92That much is clear from the reasons of the Refugee Review Tribunal, which was provided to me on the plea. I was particularly taken to paragraph 109 of that decision. The decision was made was that you were each refused refugee status, but in coming to that decision, the Tribunal described each of your circumstances during the time preceding you having engaged in this conspiracy.
93The Tribunal noted that you, Ms He, had post-natal depression and were unable to work in Australia. It was noted that you were both relying upon the Red Cross to obtain money, and that it was highly likely that you had significant debts, and your financial position was very poor.
94Ultimately, the Tribunal refused each of you a refugee visa, but did grant a visa to each of your three children. The reason for this was that your children are what is apparently known as “black children” in China. This is because you breached the One Child Policy, having had three children. Thus each of your children would have been denied an education and social security benefits if you had returned to China with them. Their ability to get employment in China would also have been severely affected.
95I stress that these matters to which I have just referred were put on the plea as facts established from independent external materials handed up on the plea. Given that each of you maintain your innocence, there is no positive evidence before me that any of these matters did in fact have a bearing on your decision to offend. I am prepared, notwithstanding this, to accept the submissions made in this regard, and I accord them some weight in sentencing you today.
96Neither of you cooperated with the authorities when you were apprehended. Each of you told lies during the course of the record of interview, and neither of you have displayed any remorse or contrition for your actions either during the record of interview or on your plea.
97I do not treat any of these matters as aggravating factors. You are each entitled to maintain your pleas of not guilty. Your absence of cooperation and remorse simply mean that you are not entitled to have these things taken into account in your favour when considering both the prospect of specific deterrence and rehabilitation.
98Now, I am about to turn to other matters in mitigation, but I do think that I will break for a few minutes to give the interpreter a break. I think I had better have both Ms He and Mr Lin removed first, but if they could be somewhere close, because we are only going to break for ten minutes. Yes, thank you, if Mr Lin and Ms He could be removed. Yes, Mr Tipstaff, I will leave the Bench.
99(Short adjournment.)
100HER HONOUR: Yes, thank you. Now, as I indicated before the break, I intend now to deal with mitigatory matters to be taken into account in sentencing you today, and I firstly deal with matters of mitigation which are common to each of you.
101Firstly, each of you was, before the commission of these offences, a person of good character. You have no prior contact with the criminal law. I note, however, as has been properly conceded by each of your counsel, that this factor is of less importance in cases such as this. In drug importation offences, because of the primacy of the principle of general deterrence, prior good character is generally to be given less weight as a mitigating factor than it might otherwise have been given.

102However, I accept the submission that was made to me that although this means that your good character has less weight, it does not mean that your previous good character is an irrelevant consideration.
103I turn next to the issue of your children. Each of you has suffered and will continue to suffer by reason of being separated from your very young children. You have three children between the ages of eight and three. Allied to this issue is the issue that each of you will suffer by reason of being imprisoned in Australia, in a situation where you do not speak English, and where you are isolated by that fact within the prison, and where you have little contact with anyone from your own country, and as far as I understand, no contact from any family, and little contact with friends.
104But the principal issue in relation to your imprisonment in mitigation is that you will each suffer terribly by being separated from your children. Despite the overwhelming evidence that was produced against you at your trial, neither of you appear to have understood that a conviction followed by an immediate period of imprisonment in remand was in prospect during the trial.
105When the jury's verdict of guilty was returned, you, Ms He, fainted in the dock and required medical attention. At the conclusion of the trial when I was called upon to remand you each in custody, I heard submissions in relation to the housing of your children, which revealed that neither of you had taken any steps to have anyone care for them should you be found guilty, and so remanded.
106Your horror at being so separated from your children comes out clearly in your plea hearing, and particularly in the medical reports in relation to Ms He which have been presented to me on this plea. And I do take the circumstance of separation from your children as a factor which will make your period of imprisonment very much more burdensome than it would otherwise have been.
107Separately from this issue, I was asked to take into account the effect of your imprisonment on your children themselves. The children are presently aged eight, seven and four years. This is a matter which I am entitled to take into account as a factor in itself, quite apart from the hardship to yourselves in you being separated from your children.
108In order to take this factor into account, I must be satisfied that the situation is exceptional. This is not set out in the Act itself, but I accept, as was accepted by all parties in the plea, that this is so. Your counsel put to me that the exceptional circumstances were constituted by your three children being effectively orphaned for an extended period of time, given that both of their parents, that is both of you, will be imprisoned by me for a significant time today. In this context, reliance was placed by counsel for you, Ms He, on two confidential court reports which indicated that the children had been taken to New South Wales to be cared for temporarily by family friends.
109The prosecutor conceded that the circumstances of both children having a parent incarcerated was sufficient to be described as exceptional. I agree. I accept that the hardship to your children by reason of this imprisonment should be used as a further factor to ameliorate the sentence I would otherwise have imposed upon you today. Each of the carers has written to me, outlining your children's circumstances and asking me to take those circumstances into account in sentencing you today, and I indicate that I do so.
110However, I must say that although I do take those matters into account in ameliorating the sentence, I accept also in relation to your position, Ms He and Mr Lin, that it must have been quite clear to you at the time that this would be the inevitable result of your offending. Your offending continued over the course of several months. It was not a spur of the moment involvement in criminal activity on a one-off basis. You each clearly committed the offence while taking the risk that you would be caught and imprisoned.
111I have earlier indicated that you did not appear at the time of the jury's verdict to have understood that there would be a period of imprisonment in prospect, but in sentencing you today, I take into account that the tragic effect of your offending on your children is not some unusual effect, but is an effect that should have been anticipated by you at the time of the entering into of this conspiracy.
112It is impossible to know, of course, what the circumstances will be at the end of your period of imprisonment in relation to your children. I would expect that the circumstances upon your release would justify the placement of the children in your care, but I record that I have no evidence on the plea one way or the other as to whether that will be the case.
113I turn now to a matter raised on behalf of you, Mr Lin, as a mitigatory factor. Your counsel has indicated that prior to the trial, you offered to the prosecutor that you would plead guilty in respect of the eleventh package to a charge of importing a commercial quantity of pseudoephedrine. You also indicated that if that plea was accepted, that you were prepared for packages one to ten to be put on the plea as uncharged acts of importation of an unknown quantity of pseudoephedrine. This plea offer was rejected by the prosecution.
114Your counsel has suggested to me that in sentencing you today, you should by reason of that plea offer be given the benefit of exhibiting a willingness to facilitate the course of justice. He suggests that this should attract a modest sentencing discount.
115He submitted to me that the trial which has been undergone has been pointless, because the Crown did not accept that offer. He submitted to me that the result has been that the distinction between the charge of which you have been convicted by the jury, and the charge to which you offered to plead guilty, is largely metaphysical.
116It was suggested on your behalf that you were prepared to plead guilty to an indictment which would have reflected the substance of your criminal conduct, although your counsel conceded that the subject matter of the trial was a charge which was in law of a different nature.
117Your counsel in effect submitted to me that effectively the same result has been achieved by the trial as had been achieved had you pleaded guilty, as I have indicated, to the alternative charge. He thus relies upon the principle in sentencing for Commonwealth offenders that the court must consider the offender's willingness to facilitate the course of justice. He submits that this is a different concept to simply taking into account the utilitarian value of a plea of guilty. He submits that in making that offer, you, Lin, have shown yourself to be truly motivated by a willingness to facilitate the course of justice.
118However, I accept the prosecution's submission that there is a significant sentencing difference between the charge to which you were prepared to plead guilty, and your position today. It is this. Your role in facilitating the delivery of the first one to ten packages, although available to be used on a plea of guilty as an uncharged act, would have attracted a very different sentencing consideration than the case as it has unfolded before me today.
119It is not appropriate for uncharged acts to be used in sentencing as aggravating the seriousness of a crime, and that is the significant difference. In sentencing you today, I have indicated that I do accept that there was some quantity of drugs in the first one to ten packages, and that you were closely involved in the importation of each of those packages. I therefore sentence you on the basis that the conspiracy in which you were involved is a conspiracy of a more serious nature than it would otherwise have been.
120I accept the prosecution's submission that this is a very different sentencing exercise than what would have been in contemplation, had your plea offer been accepted.
121Sometimes the way in which a case is run at trial can be indicative of remorse or of a desire to facilitate the course of justice. I accept that the concept of a desire to facilitate the course of justice is in many cases quite separate to any consideration of remorse, and that such a desire may still be evident even when there is no evidence of remorse or contrition itself. However, this is not such a case.
122No issues in your trial were conceded. The prosecution was required to undertake the painstaking process of proving each aspect of each of the facts surrounding each importation. Given those circumstances, there is very little weight that I place on the prior plea offer.
123So I have now outlined the matters of mitigation common to each of you. I now turn to outline your individual circumstances.
124You, Mr Lin, are presently aged 34 years. You came to Australia in 2006 to join Ms He, who at that time was already living in Australia. Or at least, that is what you told your psychologist Carla Lechner when you saw her for the purpose of preparing a report for use at your plea hearing.
125You told her also that you dropped out from school in about year seven, when you were aged between 13 and 14 years. You did not complete your schooling because you joined your friends to learn driving skills in order to get some work. You said that you did this because you wanted to help your family financially. You have mostly worked in construction in China; in Australia you mostly have worked as a painter and decorator, and also as a cleaner.
126You told Ms Lechner that you injured your back with heavy lifting, and that was why you took on a job as a driver whilst in China. You estimated that in Australia before being arrested, you had been working over half the week as a driver.
127You also told Ms Lechner in relation to that back injury that as a child, you fell from a second storey building. You told her that as a result, you were in a coma for some hours and in a hospital for some months. You also reported to her a number of serious motor car accidents. As well as the back injury, you told her that you still suffer headaches and ringing ears. You do not take any illicit substances, and you drink very little alcohol.
128The carers of your children have described you in their references as king, warm-hearted and sincere.
129I accept each of the matters that I have just referred to in relation to you, Mr Lin, as being accurate, and I take them into account in your favour in sentencing you today.
130I also accept that you are socially isolated in prison, as I previously indicated when dealing with mitigatory factors common between yourself and your wife. You speak very little English. In fact, as I understand it, no English. There are few Mandarin speakers in prison. You have no family in Australia aside from your children and a few friends. You thus have scarcely any visitors, and this adds greatly to your isolation in prison.
131However, although I accept all those matters, there are other matters which you told Ms Lecher about, about which I am not persuaded. You said to her that you had been arrested in China on religious grounds. You told her that you were a Christian who faces persecution in your homeland. You told her that you attended the underground church in China, organising concerts, and were arrested by the government because of that activity.
132You described to her being in custody in China for two weeks, having been arrested as a result of your religious belief. You said that you were physically assaulted when the police beat you up. You said that you cannot hear clearly as a result of this assault, and your brain has been affected as a result.
133You told Ms Lechner that your parents and friends secured your release through bribery, and a relative helped you to escape to Australia. You said that your partner Ms He had come to Australia a couple of months before you, and that on arrival, you lived in Sydney and were supported by other people from the church.
134I have already referred to the application which you made to the Refugee Review Tribunal. I note that in that application, the Department of Foreign Affairs and Trade appear to have had significant reservations about this claim in relation to the religious basis of your application for a protection visa. As I have said, the protection visa was successful in relation to your children and not yourself. As I understand it, your claim to religious persecution was not made out.
135On your plea, your counsel did not rely upon this claim of religious persecution or police harassment, and I declare that I have not taken it into account as proven in this plea hearing. I do accept, however, that you suffered the injuries which I have just mentioned, although I have no way of knowing the true circumstances surrounding the infliction of those injuries.
136As I said, Mr Lin, I received a report from Carla Lechner in respect of you. She saw you once, on 19 March 2015. She is a consultant psychologist. She administered some psychometric testing. She described you as being cooperative with the testing process and observed your concentration and attention during the testing to be normal. She found that your short perceptual reasoning index was in the mildly intellectually disabled range, and that overall your cognitive functioning was likely to be well below the average rage.
137She also administered the Beck Depression Inventory, and described you as cooperative with that procedure, and described the result as being in the extreme range, thus diagnosing you as presenting with symptoms of major depression. She acknowledged in her report that these symptoms of major depression may well be partly reactive to your current situation when you saw her, of imprisonment, but she indicated that your history suggests that you have been struggling with low mood for a number of years, and that you had been obtaining some counselling in relation to this.
138Overall, Ms Lechner described you as being cognitively and emotionally immature. You found it hard to stay on track, and were inclined to respond in a concrete fashion. She suggested a medical review to determine if antidepressant medication was indicated, and she also noted that you told her of having multiple head injuries, and she suggested a neuropsychological assessment to establish whether it was possible that you suffer from acquired brain injury.
139This comment was one of the significant reasons for the delay in sentencing you, Mr Lin. Despite being given the opportunity to obtain further reports, your counsel has told me that no reliance is placed on any suggestion of acquired brain injury, and I have therefore disregarded that part of Ms Lechner's report in sentencing you today.
140I do however accept that your mild intellectual disability, coupled with your lack of ability to understand English, and the absence of any visitors will make your prison term more onerous than otherwise, and that I should take each of these matters into account in reducing the sentence I would otherwise have imposed by you. In particular, your counsel made a submission based on Verdin's in relation to your intellectual disability, and in relation to those other matters, and I do accept that submission, and will be taking those matters into account in framing my sentence today.
141In relation to the diagnosis of major depressive illness, I am prepared to make some further allowance as suggested by your counsel in respect of this evidence. However, I do accept the prosecutor's submission that this diagnosis must be treated with care. The diagnosis was made some time ago. As I have said, there has been a great deal of time given to you to obtain further medical reports for use on your plea, which has not been taken up. For those reasons, although I do accept Ms Lechner's diagnosis at the time as to the prospect of major depressive illness, the persuasive value of that diagnosis when sentencing you today is not strong.
142Mr Lin, as I understand it, you are presently on a temporary visa awaiting sentencing. The prosecution submitted to me that I cannot speculate about the prospect of you being deported, or a likelihood that imprisonment would affect your immigration status. Your counsel made no submission on your plea relating to this issue, and I have not taken it into account on this plea hearing.
143In sentencing you, Mr Lin, I need to make an assessment of your prospects of rehabilitation. You are still a relatively young man. Your counsel made no specific submissions on this issue, but I indicate that I am satisfied that the disastrous effect on your family, and particularly on your children, of a long period of imprisonment will weigh heavily on you, and will be a significant deterrent against you being involved in criminal behaviour into the future.
144Having said that, I acknowledge that you comprehensively lied in your record of interview, and that there is nothing in the trial or in the plea which indicates that you have any understanding of the criminality of your behaviour for which you are to be sentenced today. Your prospects for rehabilitation are therefore very difficult for me to assess.
145I have no information as to any acceptance of responsibility by you for your actions; I have no up to date information as to any steps you have taken to rehabilitate yourself whilst in prison for this last ten months. In my view, the most significant factor in your rehabilitation will be your knowledge of the effect your offending has had on your young children.
146Doing the best I can on the very limited material available to me, I tentatively assess your prospects for rehabilitation as being moderately good.
147I turn now to the individual mitigatory circumstances of you, Ms He. Ms He, you are present aged 26 years. Your personal background is set out in the report of Stephen Gault who visited you in prison and provided a report to the court.
148You are the oldest of four siblings, and you grew up in China. Your mother and father appear to have provided you with a very happy home, and you are still close to your parents. They sent you to Australia in 2005 at the age of 17 years in order to study. As I understand it, your parents had very high expectations of you, because you are the eldest child. They wanted you to have a good secondary education in Australia, and to go on to university.
149You attended language school in Sydney for about 20 weeks, and then attended a senior high school in Sydney for a few months. Unfortunately, you did not manage to acquire basic English in that time, and you left the high school after you became pregnant to Mr Lin in 2006 with your eldest child.
150Whilst you had been studying, you worked in casual jobs. As I understand it, you have never been in the same job for longer than a month in Australia, and you were reliant upon Mr Lin's income after you became pregnant.
151This pregnancy was a great disappointment to your father, who had wanted you to pursue your education in Australia. Your father is now in uncertain health, and you are very ashamed of having been found guilty of a criminal offence. This is particularly so because it is expected in Chinese culture that the oldest child will support the family if the father becomes seriously ill. This is a very significant issue to you, as you are now imprisoned in Australia without any prospect at all of assisting your family financially or any other way.

152During the trial, you were under the care of a psychotherapist and counsellor by the name of Dr Zui Shan Chang. She first saw you in September of last year and treated you for depression until you were taken into custody in December of last year, as I have described, on the day the jury's verdict was announced. She described you as having been in a very fragile mental condition when she first saw you on 8 September 2014.
153She also recounted your longstanding history of depression, predating this offending, from which you have suffered since September 2008 after your second child was born. She says that this depression was associated with post-natal depression, combined with stressful life circumstances.
154I am told that you were under the treatment of a psychiatrist in Sydney relating to this condition under a mental health care plan. You took prescribed antidepressants from September 2008 to November 2011, and then again the depression returned in March 2012, when you were apprehended in relation to these offences.
155Dr Chang continued to treat you as I have said after your arrest for these offences. She described you as suffering from huge stresses in anticipation of the potentially devastating consequences to your family if you were found guilty, and the trauma of separation from your children.
156I also received a report from a senior child health practitioner addressed the Children's Court in relation to issues relating to your children and their care whilst you were in prison awaiting sentence, and a further report post that time. The case plan outlined in those documents is for the children to be transferred to Sydney and cared for by family friends. As I understand it, the case plan has now been put into effect, and this means that your children live in Sydney, and there are thus very limited opportunities for them to visit you or Mr Lin in prison.
157In relation to the report of Stephen Gault, Mr Gault outlined you having being taking antidepressant medication regularly in prison. You told him that you have lost weight and lost your appetite. You have difficulty sleeping at night. You feel restless and agitated. Mr Gault assessed you as having no evidence of cognitive impairment, and he described you as having cooperated with him in the interview, and having answered all questions directly, and without evasiveness.
158From your history, he diagnosed you as suffering from major depressive disorder of moderate severity. He carefully pointed out in the report that this major depressive disorder was not just a result of your imprisonment, but that it was depression from which you have suffered from varying degrees of severity since the birth of your second child in 2008, as I previously described. His opinion as to this marries up with the evidence as to these matters given by Dr Chang.
159In Mr Gault's opinion, the offending which you committed reflected a degree of organisation and motivation that was not consistent with a person who was significantly depressed at the time of the offending. His conclusion was that your depression over the time of your offending was therefore not of a sufficient severity to affect your capacity to make reasonable decisions or function in a day to day sense. He therefore found no direct relationship between your offending behaviour and your psychiatric condition.
160He noted also that there is nothing in your history to indicate that you have an antisocial personality, or any other personality disorder which might lead to future criminal behaviour. His opinion also was that imprisonment will exacerbate your psychological condition and your condition of depression. I accept that that opinion provides the basis for the submission that was made on your behalf as to Verdin's. That is, that your condition of depression, in combination with the other circumstances of your incarceration to which I have previously referred, will make a period of imprisonment more burdensome for you.
161Mr Gault concludes that the main barrier to your prospects of rehabilitation are your financial and social circumstances, and particularly your lack of being able to speak English. His opinion in his report was that there was nothing about your personality or background to indicate that you are not capable of rehabilitation, given an appropriate level of support.
162I accept the pleas of your counsel, Ms He, as to the application of Verdin's in relation to the matters to which I have just referred. That is, that all the matters to which I have referred will make your time in prison more burdensome than they might otherwise have been.
163I also accept that at the time of these offences you were still young. You were between 22 and 23 when you were apprehended. I accept that in sentencing you as a youthful person, this is a very significant matter to take into account. In sentencing a youthful offender, a court is to give primacy to the concept of rehabilitation. Despite the significant role of the principle of general deterrence in sentencing you today, I accept that the principle of rehabilitation also has a significant role to play.
164I turn now to the question of your prospects of rehabilitation, Ms He. It is difficult for me to form a view as to this matter. There are some factors in your favour; as I have already said, you were at the time of these offences quite young, and you are a person who has otherwise no contact with the criminal law.
165Most importantly as to your prospects of rehabilitation, the disaster which you have caused to your children because of being involved in these offences must surely weigh heavily upon you. I would expect that this alone will be a very significant deterrent to you being involved in criminal behaviour into the future.
166Further, from your actions taken in prison, it appears that you appear intent upon learning English and creating a more constructive life for yourself and your children in Australia. I initially heard your plea in April of this year. Since then, you have continued to take the opportunity to complete further courses in prison, and on your plea hearing, various certificates were handed up to me showing courses which you have completed, and in particular showing that you are regarded now as holding a position of trust within the prison, and as being a reliable and respectful prisoner. All of this bodes very well for your future rehabilitation.
167On the other hand, you have refused to accept any responsibility for this criminal activity, and you did not appear to have even considered the prospect of imprisonment until the last day of the trial, when the guilty verdict was returned. My overall conclusion, Ms He, is that you do have very good prospects for rehabilitation, and I agree, as I have said, that the prospect of future imprisonment and enforced separation from your children will be something which will significantly deter you from offending into the future.
168Mr Lin and Ms He, taking into account each of the matters which I have referred to in these sentencing remarks, it now falls to me under the provisions of the Act to impose upon each of you a sentence which is appropriate, taking into account all the circumstances of the offence which you have each committed, and taking into account each of your individual circumstances.
169Mr Shiyong Lin, can you stand up, please. Shiyong Lin, on the charge of conspiracy to import a commercial quantity of a border controlled precursor, you are convicted and sentenced to be imprisoned for seven years. This sentence commences today, 14 October 2015. I order that the time you must serve before becoming eligible for parole is four-and-a-half years. You may sit down, Mr Lin.
170Ms He, can you stand up, please. Ms He, on the charge of conspiracy to import a commercial quantity of a border controlled precursor, you are convicted and sentenced to be imprisoned for five years. This sentence commences today. I order that the time that you must serve before becoming eligible for parole is three years. You may sit down, Ms He.
171In respect of each of you, Mr Lin and Ms He, I note that you have now each served 328 days, up to and including today, in custody for this offence and for no other. Accordingly, I declare that that period of days be reckoned as time already served under the sentence passed today, and be noted accordingly in the court records. Are there any other matters?
172MR GIBSON: No, Your Honour.
173MR NORTON: No, Your Honour.
174MS CONDON: No, Your Honour, thank you.
175HER HONOUR: Thank you. If the prisoners could be removed.
176MR GIBSON: If Your Honour pleases.
177HER HONOUR: My associate will now print the orders, and I will sign them.
178MR GIBSON: If Your Honour pleases.
179HER HONOUR: Yes, thank you, Mr Tipstaff. You can adjourn the court sine die.
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