Kuo v R; Huang v R; Shih v R

[2018] NSWCCA 270

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270

Hearing dates:

19 October 2018

Decision date:

28 November 2018

Before:

Hoeben CJ at CL; Davies J; Hamill J

Decision:

In the matter of Chien Chih Kuo:

 

(1)   Leave to appeal granted.
(2)   The appeal is allowed.
(3)   The sentence imposed on Chien Chih Kuo on 23 September 2016 is quashed.
(4)   In lieu thereof, Chien Chih Kuo is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

 

In the matter of Zhao Xiung Huang:

 

(1)   Leave to appeal granted.
(2)   The appeal is allowed.
(3)   The sentence imposed on Zhao Xiung Huang on 23 September 2016 is quashed.
(4)   In lieu thereof, Zhao Xiung Huang is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

 

In the matter of Meng-Chih Shih:

 (1)   Leave to appeal granted.
(2)   The appeal is allowed.
(3)   The sentence imposed on Meng-Chih Shih on 23 September 2016 is quashed.
(4)   In lieu thereof, Meng-Chih Shih is sentenced to imprisonment with a non-parole period of 14 years, commencing on 11 February 2014 and expiring on 10 February 2028, with a balance of term of 8 years expiring 10 February 2036.

Catchwords:

CRIMINAL LAW – sentence appeals – three applicants – attempting to possess a commercial quantity of a border controlled drug being methamphetamine – 142kgs in quantity – error conceded by Crown in sentencing judge failing to take into account the utilitarian value of the plea of guilty – need to re-sentence – assessment of different roles of applicants in the offence – whether applicants aware of the nature and extent of drug importation – motive of financial gain – considerable planning involved – on re-sentence a finding in each case that lesser sentence warranted in law.

Legislation Cited:

Crimes Act 1914 (Cth) – s 16A
Criminal Code (Cth) – 307.1(1), 307.3(1), 307.5(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(o)

Cases Cited:

Adams v The Queen [2008] HCA 15; 234 CLR 143
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Ibrahim v R [2016] NSWCCA 6
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lau v Regina [2014] NSWCCA 179
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Regina v Franze [2013] VSC 421
Teng Lam Tan and Wong v R [2009] 22 VR 706
Thammavongsa v Regina [2015] NSWCCA 107
Wang v R [2010] NSWCCA 319
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Xiao v R [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Chien Chih Kuo – Applicant
Zhao Xiung Huang – Applicant
Meng-Chih Shih – Applicant
Regina – Respondent Crown

Representation:

Counsel:
A Parsons – Applicant Kuo
J Stratton – Applicant Huang
J Stratton – Applicant Shih
G Wright – Respondent Crown

  Solicitors:
Ren Zhou Lawyers – Applicant Kuo
Archbold & Co – Applicant Huang
Archbold & Co – Applicant Shih
Solicitor for Public Prosecutions – Respondent Crown

File Number(s):

2014/44040;2014/44029;2014/44028

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 September 2016

Before:

Lakatos SC DCJ

File Number(s):

2014/44040;
2014/44029;
2014/44028

JUDGMENT

1. THE COURT:

Offences and sentence

The three male applicants, Meng-Chih Shih (Shih), Zhao Xiung aka Chao-Hsiung Huang (Huang) and Chien Chih Kuo (Kuo) each pleaded guilty to the same charge, that on or about 11 February 2014 at Sydney, they attempted to commit an offence against subs 307.5(1) of the Criminal Code (Cth) in that they attempted to possess an unlawfully imported substance, the substance being a border controlled drug, namely methamphetamine. The quantity was a commercial quantity.

2. The maximum penalty for that offence is imprisonment for life and/or a fine in excess of $1 million. The commercial quantity set out in the Commonwealth legislation is .75kgs. The amount of pure drug involved in these offences was 142kgs.

3. Each of the offenders, Shih, Huang and Kuo contested committal proceedings in late 2014 and early 2015. Their matter was listed for trial in October 2015 and pleas of guilty were entered at a late stage before the trial.

4. The (female) offender before his Honour was Chieh-Wei Lin (Lin), who was found guilty after trial on the following three counts:

Count 1 – Between about 23 November 2013 and 26 December 2013 at Sydney she did import a substance being a border controlled drug, namely methamphetamine . That is an offence contrary to s 307.3(1) of the Criminal Code and carries a maximum penalty of 10 years imprisonment and/or a substantial fine.

Count 2 – Between about 27 January and 5 February 2014 at Sydney she did import a substance being a border controlled drug, namely methamphetamine . The quantity imported being a commercial quantity, contrary to s 307.1(1) of the Commonwealth Criminal Code. This offence carries a maximum penalty of life imprisonment and a substantial fine.

Count 3 – Between 5 February and 11 February 2014 she did attempt to commit an offence against s 307.5(1) of the Criminal Code in that she attempted to possess an unlawfully imported substance, the substance being a border controlled drug, namely methamphetamine the quantity being a commercial quantity. That offence carries a maximum penalty of life imprisonment with a substantial fine.

5. Shih was sentenced to imprisonment for 27 years with a non-parole period of 18 years. The sentence was to commence on 11 February 2014, with the non-parole period expiring on 10 February 2032, and the head sentence expiring on 10 February 2041.

6. Kuo and Huang were sentenced to imprisonment for 22 years with non-parole periods of 14 years and 6 months. The sentences were to commence on 11 February 2014, with the non-parole periods expiring on 10 August 2029, and the head sentence expiring 10 February 2036.

7. Lin was sentenced as follows:

Count 1 – A fixed term of imprisonment of 3 years, commencing 11 February 2014 and expiring 10 February 2017.

Counts 2 and 3 – Concurrent sentences of imprisonment for 21 years with non-parole periods of 13 years. The sentences were to commence on 11 February 2016 with the non-parole periods expiring on 10 February 2029 and the head sentence expiring on 10 February 2037. His Honour noted that because her matter had proceeded to trial, Lin was not entitled to any discount for a plea of guilty. Accordingly, the total effective sentence imposed on Lin was 23 years with a non-parole period of 15 years.

8. Shih has sought leave to appeal from his sentence on the following grounds:

Ground 1 – The sentence imposed on the applicant was manifestly excessive.

Ground 2 – The disparity between the sentence imposed upon the applicant on the one hand and the sentences imposed on the co-offender Lin is such as to leave the applicant with a justifiable sense of grievance.

Ground 3 – The learned sentencing judge erred in not taking into account the utilitarian value of the applicant’s plea of guilty.

9. Huang relies upon the same grounds of appeal as Shih.

10. Kuo seeks leave to appeal against his sentence on the following grounds:

Ground 1 – The learned sentencing judge erred in finding, as an aggravating factor, that the offence was committed for financial gain.

Ground 2 – The learned sentencing judge breached the prohibition in Adams v The Queen (2008) 234 CLR 143 by finding that the offending was more serious because it involved methamphetamine as opposed to another border controlled drug.

Ground 3 – The learned sentencing judge erred in his approach to the plea of guilty by failing to consider the utilitarian value of the plea.

Ground 4 – The sentence is manifestly excessive.

Factual background

11. Each of the offenders was arrested on 11 February 2014 and has been in custody since that time. In mid 2013 a person called Ling Kuo (aka Tony) came to Sydney and rented an apartment in Bathurst Street. He made contact with Lin on his arrival. They made friends with two Australian citizens, Mr Harris and Mr Alton. Mr Alton had an ABN number which he provided for Tony to use in setting up a business called “Sports Imports”. A lease was arranged of premises at Pacific Highway, Crows Nest for that sports import business.

12. On 19 October 2013, Shih arrived in Australia. On 28 October a lease was signed for the Crows Nest premises in which Tony signed as a witness using a false name. Tony paid 12 months rent in advance in cash. A photo of the front page of the lease was located on Shih’s phone, and Lin’s phone.

13. On 1 and 2 November, Lin sent messages to Tony relating to storage facilities at Woolloomooloo at Storage King. On the same day Shih left Australia. On 3 November Tony and Mr Alton went to the Storage King facilities at Woolloomooloo and rented a space there for 12 months. The rental was paid in advance by Tony in cash.

14. On 4 November 2013, Tony left Australia for Taiwan.

15. On 22 November 2013, Lin sent messages to an unknown person about Tony and his planned return to Australia in early December. On 23 November 2013 a container was shipped from China with bills of lading naming the consignee as Mr Alton, providing a mobile number and address, and stating that the contents of the shipment were surfboards.

16. The mobile service was connected in a false name and address, and the number was listed in Lin’s phone. The address of the consignment was Mr Alton’s parents’ residential address. The consignment address was later changed to premises at Strathfield, being a storage yard of a company called Swallow Mountain.

17. Several months later a number of kayaks from that consignment were seized and the internal cavities tested for traces of drugs. Those tests revealed a positive result for the presence of methamphetamine, as well as yellow dried adhesive, which was affixed to the internal cavities of two of the kayaks.

18. On 2 December 2013, Lin received the keys to the Crows Nest store. Tony described Lin to others as his secretary. The shop was gradually fitted out with stands and sample products, including goods to be sold such as kayaks, clothing and the like. The items had been purchased from the Rebel and Patagonia stores in Sydney. The price tags from those businesses still remained on the items when they were displayed at Crows Nest.

19. Between 9 January and 4 February 2014, Lin purchased a total of just under $15,000 worth of clothing and shopping bags. The Crows Nest shop was a sham, which was intended to provide a cover for the importation of methamphetamine.

20. On 5 December, the container which had been shipped from China in late November arrived in Sydney. On 6 December 2013 Tony came back to Australia from Taiwan. Lin texted a friend saying that she had to go meet a flight as her boss had arrived (i.e. Tony).

21. On 7 December 2013, Shih arrived in Australia from Taiwan. At the same time, Mr Alton received an email from Freight Forwarders indicating that the container had arrived and seeking a clearance after the payment of fees. He forwarded that email to Lin to deal with. On 8 December 2013 Freight Forwarders received an email from Lin advising that she would pay the necessary import fees.

22. On 11 December 2013, the container was moved to a yard at Cosgrove Road, Strathfield. At that location, a contractor arranged by Lin unpacked the contents of the container, loaded them into a truck, and had them taken to the Storage King facility at Woolloomooloo. At Woolloomooloo, Shih later removed some packages containing methamphetamine from the kayaks.

23. On 12 December 2013, Huang arrived in Australia with funds totalling $18,000 Australian, which he failed to declare, and was fined for failing to make a declaration. On 19 December 2013, Huang left Australia carrying a little over $11,000 Australian in cash.

24. On 23 December 2013, Mr Alton and Tony rented another storage unit at Storage King Eastgardens at Hillsdale. As had occurred previously, Tony paid 12 months rent in advance in cash. The manager of the facility was told that they were importing sporting goods.

25. On 24 December 2013, the Woolloomooloo Storage King facility was vacated and Lin arranged for the contents of that facility to be moved to the new facility at Hillsdale. On or about 25 December 2013, a person referred to as DS, was employed in the business. DS was an international student who answered an advertisement and was interviewed by Lin for a job. She commenced working on 29 December in the Crows Nest Shop on a casual basis.

26. On 26 December 2013, Shih left Australia. On 9 January 2014, Lin texted DS and asked her to come to the shop to meet her boss. DS went to the shop, met Tony, and was told that they were to sell kayaks, which they were importing from China. As of December 2013, the shop did not make much money. It was a cash only store, with no EFTPOS capacity or cash register. Receipts were handwritten.

27. Tony gave directions to DS to complete tax invoices and do stocktakes, but she rarely saw him come to the office. She observed that he was always yelling and aggressive. Lin arranged for various shop fittings to be installed and DS was instructed to organise a number of those tasks.

28. On 10 January 2014, an electronic note and coin counter was received at Lin’s then address in Kent Street. That device was subsequently found at Tony’s Bathurst Street apartment when police searched it in February 2014. In addition, Lin kept notes as to purchases made for the shop at Crows Nest in a diary.

29. On 16 January 2014, another container was loaded on a vessel in China. The bill of lading showed the consignee as Sports Imports, Hillsdale. A telephone number was provided in a false name, which was then being used by Lin. The bill of lading showed that the contents of the container were surfboards and fishing boats.

30. On 27 January 2014, Shih, Kuo and Huang, arrived in Sydney from Taiwan. They travelled either business or first class. Lin collected them from the airport and arranged their accommodation.

31. Lin liaised with customs agents in relation to the duties payable on the January 2014 container. On 28 January she told customs agents that the fishing boats said to be contained in the container were in fact kayaks. On the same day she took a photograph on her mobile phone of the file directory of a Kingston USB memory stick. The USB stick contained photographs of the second consignment container, before it was sealed in China, and a close-up photo of the bolt seal with the seal number.

32. The USB stick was later found in Tony’s apartment in Bathurst Street in a blue bag which contained Kuo’s passport. The bag had been brought to Australia by either Shih, Kuo or Huang. His Honour found that the purpose of the photographs was to ensure that those unpacking the container could be certain that it was not disturbed.

33. On the same day, at Lin’s request, DS arranged for a contractor to relocate the kayaks from the first consignment to a different storage unit at Hillsdale. A short time later Lin, DS and two contractors arrived and moved twenty kayaks from one unit to another. It was in some of those kayaks that the observations were later made about yellow adhesive in the cavities, some of which tested positive for methamphetamine.

34. On 30 January 2014, the second container arrived in Sydney. Lin paid the customs duty and charges amounting to a little under $2,000. On 31 January 2014, in the afternoon, Lin, Shih and Kuo, arrived at the Hillsdale facility and left about 15 minutes later.

35. On 3 February 2014, Tony left Australia for Taiwan and has since not returned. He has not been apprehended.

36. Between 3 and 10 February 2014, an employee at Freight Forwarders received numerous calls from Lin seeking the delivery of the kayaks and stating that the delivery was a matter of urgency. She called on at least nine occasions. On 4 February 2014, Kuo did a number of internet searches concerning customs laws on importing and exporting and customs inspections.

37. On 5 February 2014, Customs examined the second container which contained 27 kayaks and a number of cardboard boxes. Nineteen of those kayaks were found to contain heat sealed bags glued to the interior of the hulls. Each contained approximately 1kg of methamphetamine. In total there were located 183 bags, weighing 184.5526kgs. Later assessment indicated that the drug was of 77 per cent purity and hence the total pure drug weight was 142.1055kgs.

38. The wholesale value of that quantity of drug was $46,138,000. The street value was $147,420,080.

39. The agreed facts stated that each of the applicants expected to find that the methamphetamine packages were concealed in some of the kayaks and their purpose in travelling to Australia was to retrieve those methamphetamine packages.

40. Shih gave evidence in the proceedings, to the effect that it was not until he commenced to take the packets from the kayaks in February 2014 that he realised, or it dawned on him, that drugs were involved, i.e. he came by that knowledge very late in the piece. The other two applicants alleged that they did not know the full extent of the number of packages. This proposition was rejected by his Honour who found that the applicants did expect a large number of packages and that the number they expected to find was similar or identical to the 183 which were ultimately found.

41. Customs reconstructed the contents of the container and the drug was substituted with an inert substance. Listening devices were planted inside the container, and/or inside the items in the container.

42. On 10 February 2014, a staff member from Freight Forwarders called Lin and advised her that the consignment would be delivered at 10am the following day. Shortly afterwards, text messages between Lin and DS show Lin directing DS to take pictures of the lock, and the kayaks, as she had been advised to do in the previous week.

43. On 11 February 2014, Lin called Freight Forwarders shortly before 10am. Some minutes later, DS arrived at the Hillsdale storage facility, and shortly afterwards some removalists also arrived. Over the next hour or so, Lin called Freight Forwarders and the trucking company several times, seeking information about the time of delivery. A little after 11am, a truck with a container arrived at Storage King Eastgardens and DS watched the container being unloaded. She thereafter took photographs of the bolt seal, the container and its contents and sent them via an instant messaging app to Lin. There was communication between Lin and DS about the number of kayaks.

44. Shortly before midday, the removalists began unloading the contents of the container into the storage unit. DS took photographs of the unit and its contents and again sent them to Lin.

45. A little after 1.30pm, Lin, Shih, Huang and Kuo arrived by taxi at the Storage King premises. Lin had the PIN number and gained entry. She asked the site manager for the use of a forklift, and some minutes later, left the premises in a taxi.

46. At about 2.05pm, two police officers drove past the various storage units and saw kayaks outside them. At about 2.15pm, Shih, Huang and Kuo were seen next to storage unit F2 near two kayaks. The intercepted listening device material recorded the three co-offenders talking about 183 bags or packets in 19 pieces or kayaks.

47. [His Honour noted that when police subsequently came upon the scene some minutes later, all of that material had not been unpacked. From that his Honour concluded that the references to 183 bags in 19 pieces was indicative of knowledge by the co-offenders of the quantity of drug involved and the number of kayaks in which the drugs were ultimately found.]

11. Shortly after 2pm, a call was made to China for 20 seconds using a mobile phone found in the possession of Huang. Listening device material recorded conversations about the 183 bags and the markings on them by the three applicants. The conversations made reference to “the girl” obtaining a truck so time would not be wasted. (His Honour concluded that this was a reference to Lin.)

12. At 2.37pm Lin came back to the Storage King facility with several large black plastic boxes. The listening devices recorded conversations between the co-offenders and Lin. At 2.45pm, Lin asked the site manager if she could borrow a truck to transport goods to Crows Nest. She then returned to unit F2 and called a trucking company. Listening device material recorded her speaking with Shih and Huang about moving “pieces” in a truck to the shop.

13. At 2.51pm, police entered the Storage King facility and arrested Lin and the three applicants outside storage unit F2. Several unwrapped kayaks were located outside the unit, as well as three black plastic tubs. One tub contained 20 substitute packages of inert substance which had been planted by the authorities when the container arrived in Australia.

14. Several of the substitute packages were fingerprinted and Shih’s fingerprints were located on nine of them. Other items located included 49 kayaks. Kuo’s DNA was found on a cigarette butt inside storage unit F2. When arrested, Lin was found with the consignment phone. (This is a reference to the phone she used to pursue the consignment when contacting Freight Forwarders.) Police also took possession of a black handbag containing a Sony phone, Rebel Sport and Patagonia business cards, keys for the sports import shop, a map of the Storage King area and the access code to it, about $4,600 in cash, SIM card packs and re-charge vouchers for mobile phones. Found as well were receipts for the purchase of six mobile phone handsets, SIM cards and re-charge vouchers.

15. The offenders were transported to the AFP headquarters in Sydney and participated in records of interview. (His Honour found that none of the offenders was completely frank with authorities and in some instances, positively misled them in information which they gave.)

16. At about 5.28pm a search warrant was issued in respect of Mr Alton’s residence at Kensington and he was interviewed. He disclosed his part in the events and said he was simply helping friends out and knew nothing of drugs.

17. At 9.40pm, a search warrant was executed at Bathurst Street, Sydney where Tony's apartment was located. The following items were found in that apartment: Lin’s 2014 brown notebook containing a handwritten notation of expenses, numerous mobile phones, about $60,000 Australian in cash, a Telstra bill for the shop, an electronic money counter, 17.7g of methamphetamine with a purity of 78.8 per cent, a blue leather bag seen in photographs of the flight to Australia and used by Kuo which contained the Kingston USB stick. (His Honour inferred that this methamphetamine had come from the first container which arrived in Australia.)

18. At 11.37am, on 12 February 2014, the Crows Nest shop was searched and property seized, including electronic scales.

Proceedings on sentence

56. His Honour noted that neither Huang nor Kuo had any criminal history. Shih had a number of offences in Taiwan, comprising “usury offences” between 2006 and 2008 and a further offence of giving false evidence where apparently the prosecution was suspended on the payment of a fine. His Honour did not regard those offences as having any significant bearing on the sentence proceedings insofar as Shih was concerned.

Application by Kuo

57. Kuo did not give evidence in the sentence proceedings. It was necessary for his Honour to resort to secondary material and in particular, the history given by Kuo to Dr Eagle, a psychiatrist, in order to determine Kuo’s background and motivation in becoming involved in the drug importation.

58. Shih did, however, give evidence in the sentence proceedings. Much of that evidence was rejected by his Honour. It is, however, necessary to briefly refer to that evidence and his Honour’s findings to the extent that they impact on the application for leave to appeal against sentence brought by Kuo.

59. As a result of the listening device material, his Honour rejected Shih’s fundamental position that he had come to Australia to work and to assist a friend, Tony, in “moving some stuff”. Shih said that he only found out that drugs were involved when he was actually removing the packages from the kayaks. Because Shih and his co-offenders had travelled to Australia with either business class or first class tickets, and were accommodated in high level accommodation when they arrived, his Honour rejected the proposition that Tony had asked the co-offenders to come to Australia to help him do some moving.

60. His Honour was prepared to accept that Tony was in charge of the importation but rejected Shih’s evidence that Lin was next in the hierarchy. His Honour accepted that the co-offenders did not speak English and that they depended upon Lin to interpret for them. His Honour accepted “that the three co-offenders [had] some history together in Taiwan” before they came to Australia and that “they were co-opted to come … from Singapore to this country” (Sentence judgment, 16.7). His Honour accepted that Shih had become involved in the importation for financial gain but rejected Shih’s evidence that he was to be paid approximately $5,000.

61. Kuo was aged 21 at the time of the offending and 24 at the time of sentence. He relied upon a report from Dr Eagle, psychiatrist, dated 21 February 2016. He was married with one child. He was working in a factory in Taiwan. He was unable to speak English which his Honour noted would make his time in prison more difficult. He did, however, share a cell with Huang.

62. The following is based on what Kuo told Dr Eagle and which was set out in her report.

63. Kuo was diagnosed with depression when he was in the army but he recovered after his discharge. He was having a holiday with his wife and with Huang and his wife in Singapore when he was contacted by Tony. Tony was in Australia and was a friend from Taiwan. Tony asked them to come and look at Australia and said that if they bought airline tickets, they would be reimbursed. “I knew Tony to be kind and trustworthy”. He had picked them up at the airport, taken them home and gave them meals. Kuo was helping Tony move stuff around, doing him a favour. Kuo said that he felt that he had been fooled by Tony.

64. His Honour did not accept that history and concluded that Kuo well knew the true purpose of his trip to Australia.

65. In relation to his personal history, he was born in Taiwan, the younger of two boys. Since he had been arrested, his parents had become upset with him and he had only spoken to them once or twice. They had been shamed by his criminal activity in Australia. The story of this arrest had been news on Taiwanese television and he regretted the fact that he now could no longer support his parents.

66. He was an average student who left school in year 9 due to financial problems at home. He had to get a job and worked in factories. The longest job he had was for two years. He had been married to his wife since the age of 20. They had been in a relationship since he was 15. He was friends with his male co-offenders and did not have close contact with other friends. When he thought about his actions, he said that he had been fooled and articulated strategies to avoid being vulnerable to deception in the future.

67. Dr Eagle did not diagnose any mental illness. She noted that he felt isolated while in custody. He had experienced significant shame and public humiliation in Taiwan due to the publicity there. This had affected his family. Dr Eagle assessed that he “has very few risk factors commonly associated with re-offending”. She recorded that he had expressed regret for his actions and had reflected on how he might avoid similar situations in the future.

68. His Honour concluded that while he respected Dr Eagle’s opinion, she had not been told the full facts, either as to the manner in which the offenders came to be involved, nor what other activities they had been involved in. He did not accept that the offenders had been duped by Tony. His Honour was not persuaded that Dr Eagle’s assessment of risk factors for re-offending in relation to all of the offenders could be relied upon. This was because his Honour found that she had not been told the truth about the offenders and their personal circumstances.

69. His Honour had regard to the matters to be considered under s 16A of the Crimes Act 1914 (Cth). In doing so, his Honour dealt with the offenders together. When considering the circumstances of the offending, his Honour said:

“They travelled from Taiwan to this country arriving on 27 January 2014, so much is clear. They met with Tony and the co-offender Lin who provided mobile phones and organised accommodation. There was no contest as to that. On 27 January this offender and the co-offender Mr Huang visited the Sports Imports shop. Again, there is no contest as to that issue.

On 31 January, Mr Shih travelled to the storage facility with Ms Lin. Again there is no contest as to that. On 11 February 2014, the offender travelled with the co-offender Lin to the storage facility and moved some kayaks from one unit to another and then began to remove the substituted drugs from the kayaks and pack them into boxes.

The Crown contends and I accept based upon all the material that the

unpacking occurred in such a way and the accompanying conversation

confirmed that these three men had knowledge of the future distribution of   

those drugs. They had knowledge of the numbers of packages and the significance of markings of the packages as they were marked.

Contact was made with a person in China regarding the consignment and   its contents and I note the facts indicate that that contact was on a phone subsequently found in or near the possession of the offender Huang later on.

Before their arrest all three had removed 56 of the substituted packages and they provided the co-offender Ms Lin with photographs of the container before it was sealed in Taiwan and further photographs of the bolt seal of the container afterwards. In addition it is plain that Mr Kuo accessed information by mobile phone, internet searches for Customs. Once again one is left to surmise how a person whose only job is to move objects and do physical labour why that person was involved in internet searches of customs procedures.

The Crown contends and I so find that they continued to perform the tasks after Tony left Australia on 3 February. The Crown argues and I accept beyond reasonable doubt that there was a degree of autonomy and an ability to deal in the absence of Tony’s supervision. Hence each of the three must be considered, and I do, as trusted operatives of the ultimate syndicate which was involved in this large criminal enterprise. In essence the Crown contends that the offenders played an essential role in the drug importation syndicate, in my view, so much is plain.” (Sentence judgment, 28-29.4)

70. For the reasons already set out, his Honour concluded that the offenders were well aware of the nature and extent of the drug operation and in particular, the quantity of drugs to be removed from the kayaks. His Honour further concluded:

“The offenders were flown into Australia the Crown contended and were put up in comparative luxurious circumstances with paid accommodation organised or paid for by Ms Lin, I am not suggesting out of her own money but certainly she was the architect of it or at least the agent of it, all support the contention that the operation was important and potentially lucrative.

That the offender Kuo was in possession of the USB memory stick which contained photos of the before and after of the container and its seals in my view is [in]consistent with any lawful operation being in consideration and provides a compelling inference that the offender knew that it was important to ensure that the container had been not tampered with prior to arrival into his country.

The markings on the packages also, in my view, indicate that it was a sophisticated operation as to which these offenders would needed to have known their meaning in order to usefully participate.

The fact that a truck was ordered to move the contents of the kayaks indicates to anybody and, in my view, the offenders knew that a large quantity of drugs were involved or expected. At the time of arrest 56 packets had been retrieved by the offenders. They had not completed their task. The fact that they were still going, in my opinion, indicates as well that they had full knowledge by that stage.” (Sentence judgment, 31.5-32.2)

71. Later in his judgment, his Honour noted:

“The agreed facts are that the three co-offenders entered Australia on 27 January 2014. It was never made clear how it was that all the three co-offenders happened to be holidaying in Singapore at the same time when a request was made by Tony for their assistance, especially given the fact that the offender Shih was said to be a cook by occupation, the offender Huang employed in his family gift box business and the offender Kuo a factory worker. That each would leave his wife and come to Australia to help “move stuff” on behalf of Tony is neither common sense nor plausible and, as I say, I reject that contention.” (Sentence judgment, 33.6)

72. His Honour made further observations as to the circumstances of the offending when he said:

“When the Bathurst Street apartment was searched police located the blue leather bag which contained the before photographs, to put it that way, of the container and that bag had been in the offender Kuo’s possession on a flight to Australia, a matter apparently evidenced by photographs tendered in the proceedings. No explanation was provided as to the offender Kuo’s connection with that and/or the USB stick. Clearly enough he was in possession, in my view, of the USB stick because he was participating in a drug importation and knowing precisely what that scheme was.

Furthermore, the evidence discloses that the offender Kuo made a number of internet searches in early February concerning Customs laws et cetera, again an activity inconsistent with his low level innocent assistance, as he put it, for Tony moving stuff.

Finally, the listening device product, which I will not repeat, also in my view indicates that these offenders were well aware of the number of packages and the fact that drugs were involved. In short, therefore, I am satisfied beyond reasonable doubt that each of the male co-offenders came to Australia in January 2014 knowing that they were to execute an illicit drug importation of a very significant size, that is, that the imported kayaks contained a significant number of packages containing large quantities of methamphetamines or other illicit drug.

I am satisfied beyond a reasonable doubt that given that they all had their expenses paid and had been proffered luxury travel and accommodation that they expected payment for their labours. I am also satisfied beyond reasonable doubt that the masterminds, as I will term them, that is either Lin Kuo or Tony and the other unknown principals in Taiwan arranged for their trusted lieutenants, that is, these three male co-offenders to assist the local principal to setup a sham sports store with a view to effecting the significant importation of drugs and ultimately their on-sale to the Australian community.

In my opinion given the size, extent and sophistication of the enterprise, as well as the extraordinarily large quantity of drugs and their very high value, sold to Australian drug addicts, marks this offence as at close to the worst category of offending of this kind. I am under no illusion that the principals expected to gain a substantial financial reward on the back of the suffering of many highly addicted drug users in this country.” (Sentence judgment, 33.9-35.1)

73. His Honour assessed the relative positions of the applicants in the enterprise as follows:

“Based upon these conclusions, in relation to the current four co-offenders before this Court, I consider that Mr Shih was at the apex of the enterprise, the male co-offender Mr Huang and Mr Kuo were assisting Mr Shih and were below him in the hierarchy, and the co-offender Ms Lin was at the bottom of the known hierarchy here. At least that is in part reinforced by the off-handed reference to her by one or other of the male co-offenders in the telephone intercepts on the day of arrest to “calling the girl” to obtain a truck to move the kayaks.” (Sentence judgment, 35.2)

74. In view of Ground of Appeal 1, it is necessary to set out his Honour’s reasoning in relation to financial gain:

“Moving then to an assessment of the financial gain aspect. The Crown submits that financial gain was the obvious motivation for each of the offenders to become involved in reliance upon at least statements by Johnson J in a number of Court of Criminal Appeal decisions where his Honour said that where large scale drug importations and/or supplies are involved without further evidence an obvious and reasonable inference to draw is that those participants involved were involved for money.

The Crown noted that given the value of the drugs, as I have said, something in the order of $147 million on the street or $46 million wholesale the financial gain was clearly the prime mover. The offender Mr Shih gave varying versions of the reward he said he expected to gain. In evidence he said that he expected to receive $5,000 and/or did. Dr Eagle reports that he told her that he expected to receive $3,000. In my opinion the offender was being less than frank about this issue, both in evidence in this Court and to Dr Eagle.

Given the proposition he had been to this country on three occasions and

resided at Bathurst Street, a relatively luxurious apartment, all at the cost of Tony convinces me that all of the offenders came to this country for financial reward and I infer significant financial reward, and I am certain that I have not been told the extent of that reward in the evidence or by other secondary sources. I reject the offender’s version that his expected financial reward was either figure, that is $3,000 or $5,000.

In my opinion similar conclusions must follow in relation to this aspect regarding the co-offenders Mr Kuo and Mr Huang. As I say in this context I have reminded myself of the observations of Johnson J in several Court of Criminal Appeal authorities about the issue of financial gain in such offences.” (Sentence judgment, 35.5-36.3)

75. In relation to s 16A(1)(c) of the Crimes Act (Cth), his Honour found that the offending formed part of a course of conduct in that the offending on this occasion was not an isolated act but was part of a sophisticated plan in which the offenders had an important part to play.

76. In relation to contrition (s 16A(1)(f)) his Honour found that there was no direct evidence to that effect, but rather a secondary reference appearing in the report of Dr Eagle. In that respect, his Honour regarded the statements as to contrition to be somewhat superficial.

77. In relation to the pleas of guilty (s 16A(1)(g)) his Honour said:

“Each of the three male co-offenders have pleaded guilty and as I have indicated, whilst they were arrested on 11 February, there was contested criminal proceedings and late pleas of guilty, I will not repeat those facts. Clearly enough they have facilitated the course of justice by not going to trial but the amount of deduction under the principles is at the lower end of the scale.” (Sentence judgment, 37.4)

78. His Honour noted that the reports of Dr Eagle had dealt with character, antecedents, age and the physical and mental condition of Kuo.

79. His Honour concluded that neither the evidence of Mr Shih nor the secondary material provided in the psychiatric reports, permitted him to make any proper assessment of the prospects of rehabilitation of Kuo. His Honour considered that the court had been told very little about his personal circumstances and the circumstances of the offence. His Honour understood why this might have occurred, given the scale of the importation. He concluded that in the absence of reliable information, he could not make an assessment of Kuo’s prospects of rehabilitation.

78. His Honour was not prepared to find that the sentence would inflict exceptional hardship on the family and dependants of Kuo. His Honour was prepared, however, to take into account the fact that Kuo did not speak English and therefore his time in custody would be more difficult than for other inmates.

79. When assessing the seriousness of the offending, his Honour took into account that the quantity of the drug involved was not necessarily determinative and that usually the role or function of the particular offender is of equal, if not more, importance. Nevertheless, the size and scale of the importation in this case remained an important consideration. In relation to Kuo, his Honour said:

“Finally in relation to the offender Kuo the evidence is that he came to this country only on one occasion, being this time on 24 January, arriving here on 27 January. In his case the psychiatrist report says that he is a factory worker in Taiwan. If that were so he brought no particular specialised skills to any tasks in this country which could not more economically have been obtained here. In addition his close relationship to the other co-offenders, in my view, leads me to conclude against the circumstance of this offending that he was also aware of what his role was in this criminal enterprise before coming here.” (Sentence judgment, 40.3)

82. His Honour also took into account the effect that the importation of large quantities of illicit drugs can have on the community. In doing so, his Honour said:

“When considering the objective seriousness of this offence it is useful to have regard to the effect of illicit drugs, particularly methamphetamines, on those who abuse that drug. It is the unfortunate experience of the criminal courts that offending of this nature, and involving larger and larger quantities of this illegal drug and others, appears to be on the rise. Undoubtedly it is a pernicious and cynical enterprise which preys upon the vulnerabilities of drug addicts and causes significant physical and mental harm, damage to property, increase in criminal offending and the concomitant costs associated with each of those adverse consequences. The long-term effects of methamphetamine abuse can result in a whole range of serious disturbances, including psychotic disturbances, as well as permanent brain damage if continued long enough, so much is clear from the medical literature.

If the importation and the on supply of the methamphetamine in this case had been successful there would have been $147 million worth of amphetamines which would have flooded this country. Those responsible for the offence would most probably have left Australia and enjoyed the financial rewards of a successful drug enterprise, leaving behind a trail of misery, criminality and consequential adverse impacts. When considering the objective seriousness of the offence one is left to surmise how much damage could have been done to how many potential consumers of this quantity of the drugs, 142 kilograms, and the substantial profits which those in charge of this operation, and to a lesser extent these offenders, sought to gain.

I have no doubt that considerations such as those informed the legislature when it dictated that the maximum penalty for offending of this kind was to be life imprisonment. I have also no doubt that the legislature considered that significant and serious penalties should be imposed to dissuade those minded to become involved in serious offending of this kind. It is almost certainly true, as I said, that the principal or the principals of this substantial criminal enterprise have not been brought to book and that this Court is only dealing with those lower in the hierarchy. Be that as it may, in my view consistent with the legislative intent, those even lower in the hierarchy who knowingly engage in importation of substantial quantities of this most serious and harmful drug must suffer significant consequences in terms of custodial sentences, to serve the aims of accountability, retribution and of general and specific deterrence.” (Sentence judgment, 40.5-41.9)

83. Before proceeding to sentence, his Honour noted that there were not many authorities which dealt with an importation of this size and of this sophistication. His Honour was referred to two decisions, i.e. Teng Lam Tan and Wong v R [2009] 22 VR 706 and Wang v R [2010] NSWCCA 319. In Teng Lam Tan and Wong the amount of the importation was 123kgs of heroin with a pure weight of 82kgs. In Wang the importation was 201kgs of cocaine with a purity of between 72 and 88 per cent. The offender in Wang was sentenced to imprisonment for 18 years with a non-parole period of 11 years and 6 months. There had also been a discount of 35 per cent in that case for a plea of guilty and future assistance.

84. His Honour noted that there were obvious differences between the facts of those cases and this case. In the case of Wang the offender was to receive $100,000 whereas there was no reliable evidence in this case of the amount of the financial reward. Nevertheless, after making allowance for those limitations, his Honour took into account the sentences imposed in those cases.

THE APPEAL

85. The Crown accepted that as a result of the decision of this Court in Xiao v R [2018] NSWCCA 4, Ground of Appeal 3 must succeed and it would therefore be necessary to re-sentence Kuo (Kentwell v The Queen [2014] HCA 37; 252 CLR 601). It is clear from his Honour’s sentence judgment that contrary to the guidance in Xiao, he did not take into account the utilitarian value of the plea of guilty when applying s 16A(1)(g) of the Crimes Act.

86. Accordingly, the issue before the Court is the re-exercise of the sentencing discretion so as to determine what is an appropriate sentence for Kuo and in particular, whether any lesser sentence is warranted.

87. Before moving on to that issue, we should say something about Grounds 1 and 2. Ground 1 asserted error on the part of his Honour in finding as an aggravating factor that the offence was committed for financial gain. That ground is misconceived. His Honour was not purporting to apply s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW). What his Honour was considering was the offence created by s 307.5(1) of the Criminal Code. In relation to that offence, financial gain is neither an element nor an “inherent characteristic of the offence”. There is authority, however, that in relation to that section the objective criminality is greater where the offence is committed for financial reward: (Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1).

88. In any event, a consideration of the motivation for the offending was relevant and important in that it provided the context in which the offending occurred. The offending itself cannot be looked at in isolation but must be assessed having regard to all relevant circumstances, which in this case included the motivation for the offending. As his Honour found, the motivation was clearly financial reward but he was not able to determine the extent of that financial reward. Approaching the matter in that way did not give rise to error, even if his Honour had been considering a state offence.

89. The second ground asserted that his Honour had failed to follow the guidance in Adams v The Queen [2008] HCA 15; 234 CLR 143 because he had found that the offending was more serious because it involved methamphetamine, as opposed to another border controlled drug. His Honour’s observations on this issue are set out at [82] hereof. It is evident from that extract that his Honour was not comparing the effect on the community of methamphetamine with that of other drugs. There was no element of comparison in his Honour’s comment. What his Honour noted was that this particular drug produced very serious consequences, not only for those abusing it but for members of the community generally. His Honour took into account as a matter of aggravation those consequences. He did not err in so doing.

Re-sentence

90. In accordance with the decision of this Court in Xiao v R, it is necessary to take into account when considering the plea of guilty by Kuo, not only facilitating the course of justice, but also the utilitarian value of the plea. That, however, does not greatly increase the extent of the discount. As his Honour made clear this was a late plea after there had already been fully contested committal proceedings. Accordingly, even when one takes into account the utilitarian value of the plea, the discount for the plea would be modest, in our assessment about 10 to 15 per cent.

91. The difficulty in this case is to find guidance in the decided cases as to how to deal with the particular facts which involve a very large importation (in excess of 180 times a commercial quantity) of a prohibited drug. Kuo’s age is not of great assistance to him because this was not a spur of the moment offence involving a lack of maturity, impulsivity and emotion. He was part of a sophisticated plan, the purpose of which was to import into Australia a very large quantity of a dangerous drug. This was very much adult offending and should be treated as such from a sentencing point of view.

92. On that issue, the observations of Bellew J (with whom Simpson and R A Hulme JJ agreed) in Thammavongsa v Regina [2015] NSWCCA 107 at [95] is apposite:

“95   … When viewed as a whole his conduct was not impulsive. His behaviour did not reflect emotional immaturity, nor did it reflect a less than fully developed capacity to control impulses … On the contrary, the applicant’s offending was the culmination of a series of considered and deliberate decisions. It was accompanied by a statement which was inherently provocative. That statement, the applicant’s admitted anger at the time of firing the weapon, his assault of the deceased by kicking him (at a time when he was trying to regain his feet after being shot), and the statement which was made immediately following that assault, reflected an apparent desire on the part of the applicant to demonstrate his “superiority” over those in the opposing group. None of that was immature. It was adult like offending.”

93. The sentencing judge carefully had regard to the provisions of s 16A of the Commonwealth Crimes Act and his findings in that regard have not been challenged. They make clear the serious nature of the offending. Accordingly, the application of first principles does not greatly assist in determining a proper range of sentences for offending of this kind.

94. Considerable assistance was provided to the Court by senior counsel for Huang and Shih who extracted from the statistical information cases involving attempts to possess or import a commercial quantity of a prohibited drug, where the pure weight of the drug was in excess of 100kgs. Reference was made in his Honour’s sentencing judgment to the decisions of Wang and Teng, Lam, Tan and Wong. In addition to those cases, this Court was referred to Lau v Regina [2014] NSWCCA 179 (102kgs of pure heroin); Regina v Franze [2013] VSC 421 (133kgs of pure methamphetamine); Ibrahim v R [2016] NSWCCA 6 (175kgs of opium); Wang v R [2010] NSWCCA 319 (204kgs of pure cocaine).

95. While the particular facts of each case are quite different, and in some case involved the offender being a principal, there is a certain consistency in the sentences. They do suggest that the sentence imposed on Kuo is a very high one. This is particularly so when one has regard to the fact that there had been no previous offending of any kind by Kuo.

96. It is not without significance that his Honour characterised the offending in this case as “close to the worst category of offending of this kind”. That seems to us to be something of an overstatement, albeit the offending is extremely serious. Our assessment of the offending by Kuo would be well above the mid-range of offending, but certainly not approaching the worst category of offending.

97. It needs to be remembered that Kuo was not a principal, albeit an important member of the drug importation syndicate. The danger in a matter of this kind is that the sentencing judge, to some extent, can be overwhelmed by the sheer quantity of the drug sought to be imported. In that regard, the observations of the High Court in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at [72]-[73] are instructive. There the plurality (Gaudron, Hayne and Gummow JJ, with whom Kirby J agreed) said:

“72 In those circumstances, while s 16A takes the form it now does, it would be wrong to produce some numerical guideline system of a kind similar to that adopted in some jurisdictions in the United States under which presumptive sentences are fixed by reference to a classification of the gravity of an offence and the seriousness of the offender’s previous criminal history. To do so would obviously depart from the legislative command of Pt 1B of the Commonwealth Crimes Act if only because it fastens upon only some of the factors that are mentioned in the Act. Yet that is what the Court of Criminal Appeal’s tabulation of sentences does. It offers a grid against which future sentences are to be judged and it is a grid which is founded entirely on gravity of the offence as measured only by the weight of narcotic concerned.

73 It is not enough to say, as the Court of Criminal Appeal said, that other matters mentioned in s 16A may be taken into account by fixing a sentence within the ranges specified or, as appears to be acknowledged elsewhere in the reasons, in some unspecified cases, outside those ranges. The starting point which is given by the Court of Criminal Appeal is based on the false premise that gravity of the offence can usually (perhaps even always) be assessed by reference to the weight of narcotic involved.”

98. Taking all those matters into account and in the exercise of our independent sentencing discretion, we have concluded that a lesser sentence is warranted in law. The sentence which we propose for Kuo is imprisonment with a non-parole period of 12 years, and a balance of term of 7 years.

Application by Huang

99. Because of the Crown’s concession that ground 3 is made out, the issue in relation to Huang is the re-exercise of the sentencing discretion. In doing so, it will be necessary to take into account the sentence imposed on the co-offender Lin to avoid offending the parity principle, as ground 2 asserts the sentencing judge did.    

100. Huang did not give evidence at the sentence proceedings. He relied on a report from Dr Eagle who had examined him on 3 February 2016.

101. The sentencing judge noted that his version of events to Dr Eagle was that he wanted to expand his family business, that he could only get small orders in Taiwan, and he wished to access a larger foreign market. Tony had told him that he knew people in Australia with vineyards. He promised introductions and orders for business from Australia.

102. Huang told Dr Eagle that he was on holiday with his wife in Singapore, and Tony asked him to come to Australia. He told her that Tony misled him as to the type of the business he was conducting.

103. The sentencing judge commented that that was a very, very anodised version of events, and his Honour did not accept that that was how the offender’s involvement came to pass.

104. He told Dr Eagle that he was born in Taiwan as the youngest of five children. He was an average student, he completed year nine, and then worked in his family’s factory. At the age of 18 he was required to join the army for two years. He told Dr Eagle that prior to his arrest he had been living in rural Taiwan with his wife of eight to nine years, his parents, his elder brother and his sister. He had two children with the elder child from a former relationship. That child lived with the mother’s parents. His younger child lived at the family home. Prior to his arrest he worked at the family’s business which was a factory that sold gift boxes.

105. He said that when he was 18 years of age he first drank alcohol. When his ex-partner left him 12 years ago when he was aged about 26, he started drinking heavily. He would drink between one and a half of two litres of Hennessey every day. He denied ever using illicit drugs but said that he was a cigarette smoker.

106. Dr Eagle considered that he had symptoms of a moderate to severe alcohol use disorder which was in remission in the controlled environment of prison. Dr Eagle thought that he would have limited if any family support during his incarceration in Australia. Further, he had told her that as a result of his arrest and incarceration, his wife of nine years had told him she was going to leave him.

107. The sentencing judge accepted that the applicant had no prior convictions.

108. The sentencing judge found that both Kuo and Huang were at a similar position in the hierarchy of the drug enterprise. In other matters, their position was fairly similar. Neither had any prior convictions.

109. In those circumstances, the sentence imposed on Huang was, as with Kuo, a very high one.

110. It is necessary to bear in mind the role played by Ms Lin and the sentences imposed upon her. Although her overall sentence exceeded the sentence imposed on Huang, that was because she was found guilty of two additional offences. For one of those she was given a three year fixed term, and the sentence for the corresponding charge brought against all of the present applicants, was made cumulative on that sentence by two years. The sentence Ms Lin received for the corresponding offence was 21 years with a non-parole period of 13 years. That seems to have resulted from the sentencing judge’s assessment of the hierarchy that involved Shih at the apex and Ms Lin at the bottom. Although there is no ground of appeal raised by Huang in relation to the sentencing judge’s determination of roles, the matter must be considered where this Court is re-sentencing.

111. It seems to us that, when regard is had to the factual background set out earlier in this judgment, Ms Lin’s role was considerably more significant than that of Huang and Kuo. She was the one given responsibility by Tony for organising the Australian end of the importation, at least when Tony was not present in the country and even, to some extent, when he was. One clear indication of that is the fact that it was Ms Lin’s responsibility to advertise and interview the person referred to as DS for the work that she was required to do in the business, both at the shop and in relation to the obtaining possession of the imported objects containing the drugs. Ms Lin was responsible for purchasing the goods which were to be placed in the shop. She was responsible for dealing with matters connected with Mr Alton and payment of fees from the imports.

112. In our opinion, Ms Lin was at the top of the Australian hierarchy. Her relative position to that of Shih will be discussed presently when dealing with Shih’s appeal. Taking that matter into account, and also the other matters discussed in relation to Kuo, we consider that a lesser sentence is warranted in law. The sentence that should be imposed upon Huang is imprisonment with a non-parole period of 12 years with a balance of term of seven years.

Application by Shih

113. Shih pressed the same grounds of appeal that were relied on by Huang. That is, he contended the sentence was manifestly excessive (Ground 1), that there was an unjust disparity between his sentence and that imposed on Lin (Ground 2) and that the judge erred in not taking into account the utilitarian value of his plea of guilty (Ground 3).

114. The respondent conceded that the sentencing judge fell into error in failing to take account of the utilitarian value of Shih’s plea of guilty. In the light of the decision of this Court is Xiao, we accept that concession. Accordingly, as with the other applicants, it is necessary for the court to exercise afresh the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Accordingly, it is not necessary to deal in any detail with the other grounds of appeal raised by Shih. In particular, it is unnecessary to come to any firm conclusion in relation to the ground asserting manifest excess other than to say that we would, in the circumstances of this case, have imposed a sentence significantly lower than that imposed on Shih. Further, while it is unnecessary to come to any final conclusion in relation to the ground asserting disparity, it has a good deal of merit in Shih’s case. In re-sentencing Shih, it is important to bear in mind the sentence imposed on Lin and that to be imposed (on re-sentencing) on Kuo and Huang.

113. Senior Counsel for Shih accepted that, based on Shih’s own evidence, it was open to the sentencing judge to come to the conclusion that Shih’s role in the importation was at a significantly higher level than that of his co-appellants, Kuo and Huang. However, in considering the question of sentence and in achieving a proper proportion between the sentences imposed on each of the four offenders, it was submitted Shih’s role could not properly be assessed as higher or more significant than the role played by Lin.

114. All parties generally accepted that it was inappropriate to revisit the factual findings made by the sentencing judge. However, within the parameters of those findings, it is open to the Court to make its own assessment of the position that each offender held in the putative hierarchy of this particular drug syndicate. In re-sentencing, it is an important consideration in ensuring that there is a proper and due proportion between the sentences imposed on each of the applicants, and that imposed (at first instance) on Lin.

115. The sentencing judge described Shih as being at the "apex" of the syndicate in Australia. His Honour held that he was operating at a higher level than Lin. It is difficult to reconcile that assessment with the factual findings as to what each of these offenders actually did to advance the importation. A consideration of the remarks on sentence and also the material tendered at the sentencing hearing, leads us to the conclusion that Shih was operating at a similar level to that of Lin. Each of those two offenders was involved at a higher level than the offenders Kuo and Huang. While each performed different roles and functions in the importation, we cannot accept that Shih was operating at a higher level then Lin.

116. This case provides a good example of why a sentencing court (including an appellate court called upon to re-sentence) is better to focus on what a drug offender actually did than to attempt to make findings as to their relative roles in a hierarchy or the precise position within a hierarchy. Because drug syndicates do not operate transparently, the “rank” of a drug offender within the criminal organisation may be more a matter of speculation than a process of rational drawing of inferences. As Gleeson CJ, Gaudron, Hayne and Callinan JJ said in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 279 [19]:

“The distinction between ‘couriers’ and ‘principals’

Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports (26), or being knowingly concerned in the importation of such imports (27). If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between "couriers" and "principals" may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a ‘courier’ or a ‘principal’ must not obscure the assessment of what the offender did.”

119. In the present case, Lin performed more actual tasks or functions in arranging the importation than any of her co-offenders within Australia. She was clearly subordinate to Tony but the evidence that she was at an inferior position to Shih was scanty. Further, she also faced sentence for two additional charges and conducted a lengthy trial. In those circumstances, her (total effective) sentence of 23 years compared with 27 years for Shih is inconsistent with well-established notions of parity of sentencing and equal justice: see, for example, Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 302 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. The same applies to the non-parole periods of 18 years and 15 years respectively.

120. Shih was the only one of the appellants who gave evidence at the sentencing hearing. It is unnecessary to go into great detail of his evidence because the sentencing judge rejected large parts of his testimony. He provided a version of events, and an assessment of his own role and knowledge, that was clearly calculated to minimise his involvement. In particular, his assertion that he was flown (business or first class) from China to Australia to perform the menial task of moving some kayaks was, as the sentencing judge found, patently untrue.

121. After the cross-examination by the Crown Prosecutor, the sentencing judge asked Shih a series of questions that summarised his evidence. Part of that examination was as follows:

“Q. I think it's right, but tell me if I'm wrong, you were expecting to help him move things for a sports shop that he was involved in that was why you were coming here?

A. INTERPRETER: That is correct.

Q. In other words, he was asking you to do manual or labouring work for him in Australia for a sports shop?

A. INTERPRETER: That is correct. Because on the previous visit the shop wasn't completely operational and it wasn't fitted out so to speak so on this occasion I wanted to have a look at the shop to see the progress and Tony also said that he would apply for me to work here if that would suit me.

Q. Did Tony say to you that he was having any trouble getting labourers to move things in Australia when he asked you to come?

A. INTERPRETER: No.

Q. Did you ever think, yourself, that it might have been an expensive way for Tony to get labour, to pay for your airfare and contribute to your accommodation to move kayaks?

A. INTERPRETER: Because when I first came here I came here to look for employment and Tony told me that he was going to set up a company and Tony told me that it would be easier to make money in Australia than in Taiwan and Tony you know to me he is someone who is in a better financial position, he has prestige cars and he runs a vehicle modification shop. I mean, the money one can make here in one week like if you come here on a working holiday visa the money you can make in one week is equivalent to a month's wage in Taiwan.

Q. Can I ask you this finally? You came here on 27 January 2014, I think; your evidence is that at that time you did not know or believe that anything you were doing had anything to do with drugs, is that correct?   

A. INTERPRETER: That is correct.

Q. When is the first time after 27 January 2014 that you came to even know or believe or suspect that you were dealing in drugs?

A. INTERPRETER: The first time I became suspicious was on one day we were supposed to all go there to unpack things but then Tony suddenly said that he would need to go back home and before he left he told us to wait for his instructions and then - and also when he told me to reach inside for the drug I became aware that it was possible that Tony might be asking us to do something illegal. I myself reached my arm inside the kayak and took out maybe 20 bags because every time I pull out something there were five or six bags but I then stopped because I realised that it was drug right in front of me.”

122. This evidence strained credulity and, unsurprisingly, the sentencing judge rejected it.

123. His Honour was prepared to act upon Shih’s evidence that he was operating at a higher level than Kuo and Huang. However his Honour did not accept his evidence that Lin was operating at a higher level in the hierarchy in relation to any of the three applicants. As we have said (at [111]-[112]) our assessment is that Lin was in fact operating at a higher level than Kuo and Huang, and at about the same level as Shih. Even so, making assessments of where criminals operate in a hierarchy of a drug syndicate is a very difficult matter either for a sentencing judge or for an appellate court. Such criminal syndicates are by their nature secretive and where people stand in such a hierarchy is necessarily opaque. It seems to us that Shih was operating at a relatively similar level to Lin, although in a superior position to Kuo and Huang. As to the latter matter, he honestly conceded as much in his evidence.

124. All of the offenders standing for sentence before Judge Lakatos SC were plainly subordinate to the man Tony. That being the case, we are unable to accept an assessment of Shih’s position as being at the "apex" of the Australian end of the operation. It may be that his Honour was excluding Tony from this calculation because he had returned to China or Taiwan. Even so, both Shih and Lin were taking orders from Tony and, in so far as it is useful to attempt to label an offender within the drug syndicate, we would assess each of them as operating at the middle level. They were obviously far more involved than mere labourers or couriers (such as Kuo and Huang) but they were far removed from being the principals of the operation. It seems the principals have not been apprehended.

125. Once that is accepted, and without determining Ground 1 one way or the other, the sentence imposed on Shih (27 years with a non-parole period of 18 years) must be substantially reduced notwithstanding the massive quantity of methamphetamine involved and the maximum sentence of life imprisonment.

126. Shih provided a personal and family history to Dr Eagle and this history was not challenged in cross-examination. He was 33 years old at the time of sentence. He gave unchallenged evidence that he worked as a cook (or teriyaki chef), prior to becoming involved in the current importation. He was born in a rural part of Taiwan and provided no history of any serious childhood illnesses or difficulties with development milestones such as walking or talking. He had one older sister. He had no particular problems at school, although he said he was bullied because he was short. He was never suspended or expelled, and achieved the equivalent of the Higher School Certificate. After he finished school, he performed his compulsory military service and had no disciplinary problems in the army. He completed an apprenticeship as a chef during his time in the army.

127. There was no evidence of any mental illness or other intellectual or psychological impairment that would impact on his moral culpability or act in mitigation on sentence. Dr Eagle noted the absence of family support during his incarceration in Australia and formed the view that Shih had exhibited appropriate remorse regarding his involvement in the current offence. He noted the difficulties that Shih may have in custody due to his poor English skills and the lack of family support in Australia. Based predominantly on his employment record, expressions of regret, plea of guilty, the influence of peers and the length of the likely sentence to be imposed, Dr Eagle was of the opinion that he had "few of the risk factors commonly associated with reoffending according to the literature.”

128. The sentencing judge was circumspect when it came to assessing Shih's prospects of rehabilitation. That was necessarily the case because his Honour found a large part of his evidence, and the corresponding history provided to Dr Eagle, to be false.

129. Shih had a criminal history in Taiwan in 2006 and 2008 for offences described as “usury”. Details were provided and the sentencing judge correctly found these to be relatively insignificant in view of the seriousness of the offending for which Shih stood to be sentenced.

130. An affidavit tendered for the purpose of re-sentencing showed that Shih has attempted to use his time in prison usefully. He has been employed during the period of his remand and undertaken courses in music and cleaning. He is currently employed in the kitchen. He has a minimal disciplinary record. In the scheme of things, this material has little impact on the proper sentence to be imposed. However, it does confirm our view that he has some prospects of rehabilitation.

131. Taking into account Shih’s role in the importation, the magnitude of the importation, his particular personal circumstances including the likely hardship in custody, his absence of any serious criminal history, and our assessment albeit a guarded one, that he had some prospects for rehabilitation upon deportation at the end of a very long sentence, we would impose a sentence of 22 years with a non-parole period of 14 years. This is a significantly higher sentence than we propose for a Kuo and Huang, largely as a result of our assessment that Shih’s evidence as to the respective roles of the three appellants should be accepted. It is a sentence of a similar (but not identical) length to that imposed on Ms Lin. This is based on our assessment that their roles were relatively similar and that they stood at about the same level in the drug syndicate. While Ms Lin conducted a trial and had two additional offences, she was truly a first offender (unlike Shih) and the two additional offences arose out of the same course of conduct and involved much smaller quantities of drugs. The sentence we propose for Shih is slightly higher than Lin received for the common offence but lower than the total effective sentence imposed on Lin. This adequately reflects principles of equal justice and proportionality in view of the common features and differences in the two cases.

132. Accordingly, the orders which we make are:

133. In the matter of Chien Chih Kuo:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentence imposed on Chien Chih Kuo on 23 September 2016 is quashed.

4. In lieu thereof, Chien Chih Kuo is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

134. In the matter of Zhao Xiung Huang:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentence imposed on Zhao Xiung Huang on 23 September 2016 is quashed.

4. In lieu thereof, Zhao Xiung Huang is sentenced to imprisonment with a non-parole period of 12 years, commencing 11 February 2014 and expiring 10 February 2026, with a balance of term of 7 years expiring 10 February 2033.

135. In the matter of Meng-Chih Shih:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentence imposed on Meng-Chih Shih on 23 September 2016 is quashed.

4. In lieu thereof, Meng-Chih Shih is sentenced to imprisonment with a non-parole period of 14 years, commencing on 11 February 2014 and expiring on 10 February 2028, with a balance of term of 8 years expiring 10 February 2036.

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Decision last updated: 11 November 2020