R v Fu

[2022] NSWDC 381

District Court

New South Wales

Medium Neutral Citation:

R v Fu [2022] NSWDC 381

Hearing dates:

22 August 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    The offender is convicted.

2    In relation to the State offence, I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 20 April 2021. The non-parole period will expire on 19 October 2021 and the head sentence will expire on 19 January 2022.

3    In relation to the Federal offence, I impose a term of imprisonment of 6 years to date from 20 July 2021 and expire on 19 July 2027. I fix a non-parole period of 3 years that will expire on 19 July 2024. The offender will be eligible to be released on parole on 19 July 2024.

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export commercial quantity of border-controlled prohibited drug

CRIME — Firearms offences — Unauthorised use/possession of pistol

CRIME — Money laundering — Dealing with money suspected of being proceeds of crime

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code (Cth)

Firearms Act 1996 (NSW)

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525

Cameron v The Queen (2002) 209 CLR 339

Danial v R [2008] NSWCCA 15

Deakin v The Queen (1984) 58 ALJR 367

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Power v The Queen (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Nassir [2020] NSWCCA 88

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Regina
Baiqi Fu (Offender)

Representation:

Counsel:
A N Williams (Crown)
G Jauncey/ I Tam (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Lawside Lawyers (Offender)

File Number(s):

21/110368

Publication restriction:

None

Judgment

1. Baiqi Fu (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

1. between 2 December 2020 and 10 May 2021 jointly with others, importing a commercial quantity of border controlled drugs contrary to s 11.2A(1), s 307.1(1) and s 311.4(1) Criminal Code (Cth). The maximum penalty for the offence is life imprisonment; and

2. possess an unauthorised pistol contrary to s 7(1) Firearms Act 1996 (NSW). The maximum penalty for the offence is 14 years imprisonment and parliament has prescribed a standard non-parole period of 4 years.

2. The offender also asks the Court to take into account an offence of dealing in with money suspected to be the proceeds of crime exceeding $100,000 contrary to s 400.9(1) Criminal Code (Cth), on a s 16BA Crimes Act 1914 (Cth) schedule, when passing sentence for the importation offence.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Federal offence

4. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

5. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

6. The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. The Crown case was a strong one. The offender’s plea has saved the need for witnesses to be called at trial, and the utilitarian value of the plea is high. I am satisfied that the offender’s plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

7. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].

8. For a federal offence the non-parole period or recognisance release period is the minimum period that that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

State offence

9. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

10. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

11. I have taken into account the standard non-parole period as a legislative guidepost to the appropriate sentence.

Facts

12. The parties tendered an agreed statement of facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Federal offence

13. The offender was involved with the importation of 8 consignments of border controlled drugs between 2 December 2020 and 10 May 2021. He provided addresses to which the consignments could be sent and directed Donghao Li (a co-offender) in relation to the collection of the consignments and delivery of them to him. He attempted to take possession of one consignment on 20 April 2021 containing a commercial quantity of ketamine (package 546).

Packages 678

14. On 2 December 2020 a consignment was intercepted by Australian Border Force (ABF) addressed to the offender at an address in Waterloo (package 678). The package was sent from Montreal, Canada. The gross weight of the package was 500 grams. Presumptive tests were positive for methamphetamine. The package was destroyed. The pure weight of the drug is unknown.

Package 220

15. On 2 April 2020 a consignment was intercepted by ABF addressed to Felix Fu (a name used by the offender) at the Waterloo address and marked with the offender’s mobile telephone number (package 220). The package was sent from France. Inside the package there was blue corflute wrapped in brown paper. The corflute contained a white powder that was later analysed as 1.6kg of ketamine. The pure weight of the ketamine is unknown. A screenshot of the tracking information for package 220 was located on the offender’s mobile telephone.

Package 546

16. On 12 April 2021 a consignment was intercepted by ABF addressed to Xuyan Li at Li’s address in Waitara (package 546). Li had earlier provided his address to the offender for the purpose of receiving packages. The offender had provided those details to unknown others who arranged for package 546 to be sent from the United Kingdom.

17. The consignment consisted of three smaller boxes of a white crystalline substance that was later analysed as 2.97 kg of ketamine, with a purity of 81%, making a pure weight of 2.405 kg.

18. On 16 April 2021, police reconstructed the package and arranged for a controlled delivery of it. The package was scanned by Australia Post and allocated for delivery on 20 April 2021.

19. On 19 April 2021 the offender corresponded with a contact “S” on WeChat in which he described Xuyan Li as a “kid who works under us”. The offender advised Li to expect a delivery the next day. S asked the offender if Li would be home and when it was expected that he would receive the package. The offender responded that Ken [Wong] would collect the parcel and settle the account.

20. Later that day, Li provided the offender with an address in Hornsby. The offender enquired if that address had been used before and Li assured him it had not. The offender told Li he needed one more address.

21. On 20 April 2021 the offender told Li to keep his eyes open for the package, not to let anyone else get it and that they would make sure that they got paid. Li asked about the “remaining 500”. The offender told Li that the package had been delivered. Li said that it had not and that he would go to Hornsby Post Office after school. The offender directed Li to take his passport to collect the package that day before the Post Office closed.

22. At about 3.10pm, Li attended the post office to collect the package. Li sent a message to the offender stating that he had picked up the package, that there were police cars downstairs and to send a car quickly. Li provided his location to the offender.

23. At about 3.45pm police arrested Li trying to get into an Uber that had been sent by the offender, with a destination of an address in Bathurst Street, Sydney.

24. Li told the police that he had collected the package at the request of the offender. Police followed the Uber to its destination, where they saw the offender waiting on the street using his mobile telephone. The offender provided the police with his mobile telephone at their request and unlocked it. The police located messages on WeChat and the tracking information for the package.

25. The offender told the police that he was waiting for a friend to deliver a package to him in an Uber but denied knowing what was in it. He took the police to his apartment on the 36^th floor, where a preliminary search was conducted with the consent of the offender. The offender told the police that he was directed by a third party to pick up the package. The offender was arrested and declined to be interviewed.

26. On 24 April 2021 Wong exchanged Facebook messages with a person described as “Alex Lu”, in which he stated, “two of my underlings were caught a couple of days ago”.

Package 383

27. Sometime in or about March 2021, Li asked Tianyi Zou, a person he knew from school, if he could receive a package for him. Li told Zou that the package contained books. Zou provided his address and mobile telephone number for this purpose.

28. On 7 April 2021 Li sent a message to Zou telling him to expect a package in the next few days, not to open it and to bring it to him.

29. On 22 April 2022 Wong called Zou’s mobile telephone number. Zou did not answer.

30. Sometime prior to 27 April 2021 the consignment (package 383) was delivered to Zou’s residence in Hornsby. The package was sent from the Netherlands. When Zou got home from school, he messaged Li to say that the package had been delivered. Li told Zou that the package was not his and to throw the package away. Li told him to delete their chat history. At this time, Li had been arrested and was on bail. Later that day Zou opened the package and found that it contained white powder. The package was taken to the police.

31. The substance in package 383 was later analysed and found to be 983.4g of ketamine with a purity of 85.5%, making a pure weight of 840.8g.

32. At about 2.00am on 28 April 2021 Wong called Zou’s mobile telephone number. At about 2.25am Wong knocked on the door of Zou’s residence. At the same time, Wong sent messages to Zou asking him to answer his telephone. Zou eventually spoke to Wong. Wong told him that he was a friend of Li and there to pick up the package. Wong told Zou the package contained drugs and that if he threw it away that they would both be in trouble. Zou told Wong he had already called the police. A short time later, Wong was given a move on direction by police who attended in response to a call about his presence. Wong told the police he was there to check on a friend of a friend.

Package 129

33. On 23 April 2021 a consignment was intercepted by ABF addressed to Xuyan Li at Li’s address in Waitara (package 129). The package was sent from Belgium. The consignment contained a green Bosch Tool Kit case in which a white powder was concealed in the lining. The substance was later analysed as 4.394kg of ketamine with a purity of 87.5%, making a pure weight of 3.85kg.

34. Police reconstructed the package and arranged for a controlled delivery of it. On 30 April 2021, Mum Kit Lock (a co-offender) collected it from the Hornsby Post Office using a driver’s licence in the name of Xuyan Li. Lock was arrested shortly afterwards. Lock told police that he was to be paid $5,000 by a person known as Jin Mao, which translates to “Golden Hair”.

Package 904

35. On 29 April 2021 a consignment was intercepted by ABF addressed to “Jayden” at Zou’s address and marked with his mobile telephone number (package 904). The package contained a circuit box wrapped in bubble wrap and inside was a lead wrapped package containing an off-white powder. The substance was later analysed as 173.04g of heroin with a purity of 77%, making a pure weight of 133.24g.

Package 456

36. On 4 May 2021 a consignment was intercepted by ABF addressed to Jayden Tiam Yi at Zou’s address and marked with his mobile telephone number (package 456). The package was sent from Malaysia. The package contained an electric light sign, in which was a white powder. The substance was later analysed as 148.08g of heroin with a purity of 79%, making a pure weight of 116.98g.

Package 797

37. On 10 May 2021 a consignment was intercepted by ABF addressed to Zi Xuan at an address in Frenchs Forest belonging to Zixuan Wang, an acquaintance of Li (package 797). The package was sent from the Netherlands. The package contained a silver satchel containing a white powder wrapped in carbon paper. The substance was analysed as 1kg of ketamine with a purity of 87.5% making a pure weight of 875g.

Messages on WeChat

38. The offender corresponded with Li, via WeChat. An analysis of the messages passing between them in the period March-April 2021 included messages related to the following topics:

1. the provision of names and addresses by Li to the offender;

2. Li’s payments to the offender for cigarettes;

3. the payments to made to Li for the receipt of packages and negotiations relating to payment;

4. Li’s provision of his bank account details;

5. the offender alerting Li to the expected delivery of packages;

6. the delivery of packages;

7. the offender referring to his boss;

8. collection of the packages from Li, by the offender and others.

39. The offender made two payments to Li for collecting packages. On most occasions when Li met the offender he was with Wong. The offender told Li that he lived with Wong and that they were good friends. Wong instructed the offender to allow Li to sell cigarettes first and then to progress to collecting packages, where he could make more money. On each occasion that Li delivered packages to the offender, Wong was with him and Li saw the offender give the packages immediately to Wong. When Li received the package sent to the Frenchs Forest address he called the offender. In that call, Li heard Wong instructing the offender to tell Li to bring the package to the offender and not to open it.

Offence on the s 16BA schedule

40. Fu received the sum of $149,000 reasonably suspected to be the proceeds of fraud into a bank account in his mane. Between 18 and 24 December 2020 he conducted nine transfers and 10 cash withdrawals of that money.

State offence

41. At the time of his arrest, the offender consented to a search of his apartment. He told the police that they would find an airgun resembling a Glock 17 pistol, which had been given to him by the person who asked him to receive package 546. The firearm was not located. Police returned later with a search warrant and located the pistol and a drink bottle containing rehydrated pellets.

42. The pistol is a gas operated gel ball air pistol and defined as a firearm for the purposes of the Firearms Act 1996 (NSW).

Sentencing Assessment Report

43. The Court received a Sentencing Assessment Report (SAR) dated 15 August 2022. The salient points in the SAR can be summarised as follows.

44. The offender told the author of the SAR that his parents financial support of $100 per week ceased when he turned 18. He was in Year 12 at the time of his arrest as well as working part-time. He participated in the offences for quick money. The packages first contained cigarettes but then he became aware that the packages contained illicit substances. When he found out he did not tell the police because he thought that he would get into trouble. He demonstrated insight into his offending conduct and was willing to engage in rehabilitation. He was assessed as a medium-low risk of reoffending and suitable to undertake community service.

The Offender’s Case on Sentence

45. The offender tendered the following documents:

1. report of Dr Natalia Yee, psychologist, dated 16 March 2022;

2. report of Dr Richard Furst, psychiatrist, dated 22 May 2022;

3. letter from the offender’s father, Xiaochu Fu dated 17 April 2022;

4. medical records from Justice Health.

46. The offender was called to give evidence and cross-examined. The offender gave evidence that he told the truth to the authors of the various reports, that he had read the reports and that the content of them was accurate. His evidence was consistent with the content of the documents and it is not necessary to refer to it in detail. The offender gave evidence that he regretted his actions and wanted to apologise. In cross-examination, he made appropriate concessions about his financial motive for offending. He disputed telling the police that the person who asked him to collect the packages gave him the gun, stating that he did not have an interpreter at the time and that he may have been misunderstood. I accept the offender’s evidence on this point and in general.

47. The following is a precis of the evidence relied on by the offender.

The offender’s subjective circumstances, prospects of rehabilitation and remorse

48. The offender is presently 19 years of age and was 18 years of age at the time of committing the offences.

49. The offender is an only child, who was born and raised in China. His father was a businessman and often only home once or twice per month. His mother was a deputy principal at a university. He was mostly raised by his mother who was very controlling and strict on him. His parents argued about him and blamed each other for the offender’s inadequacies as a son. He was physically disciplined as a child up until the time when he came to Australia.

50. The offender attended boarding schools in China and only return home in weekends. He did well at school but found it tiring as it involved academic and other activities from 7am to 9pm daily. He did well at school and played representative football. He did not have many friends and experienced some bullying.

51. He came to Australia at age 15 to complete high school. He had difficulty adjusting arising from being separated from his family and managing his daily affairs. His relationship with his parents deteriorated when he tried to explain to them that their $100 per week payment to him was insufficient to meet his needs.

52. The offender enjoyed school in Australia and made friends. He got a job working as a waiter in a restaurant from 4pm to 11.30pm five days a week to help to support himself. He found this tiring and his grades suffered. He found it hard to wake up and get to school and to retain what he had learnt.

48. While he was in Australia his parents continued to be critical of his academic progress, telling him he was “wasting their money” and that he was a failure and a disappointment to them.

49. At the time of the offence, the offender worked 9am to 9pm in an internet café and was pursuing secondary education online. He had a girlfriend of two years at the time of his arrest, but that relationship broke up two months after he was taken into custody. His girlfriend found out about his involvement in the offences a few days before his arrest and begged him to stop. She was very upset. He persisted because he didn’t realise the gravity of his actions and the extent of the potential legal ramifications. He broke down when telling the psychologist of the emotional impact that his arrest had on his girlfriend.

50. The offender agreed with the facts but was unsure how the latest version of the proceeds of crime offence came about. He purchased the pistol online from a site in Australia. He stated that he was unaware that the possession of it was illegal in Australia. As to the principal offence, he told the psychologist that he was initially asked to collect and deliver some parcels by some acquaintances and that he asked his friend Mr Li to provide some names and addresses for deliveries. He knew that what he was doing was wrong and illegal but was persuaded by the money and reassurances that nothing bad would happen. It was not until he was arrested that he realised how serious it was. He wanted to give his girlfriend a better life and he was motivated by the money. Prior to becoming involved in the offence he had struggled financially in Australia and had to ask his girlfriend for money for food when they first got together. He had undertaken a number of part-time jobs simultaneously to make ends meet and that is where he met the people involved in the offences.

51. The offender has been housed in Parklea Correctional Centre for all but about one week of his time in custody. He has experienced about four to five months of that time affected by COVID-19 restrictions, including 24-hour lock-ins. He has experienced disrupted sleep and increased stress levels. His mood was very low following the death of his grandfather, who he was close too, and the hospitalisation of his father. When he is not locked down, he has been working in the kitchen seven days a week and has a sweeper role. He attends the prison library each week and speaks to his mother regularly.

52. The letter from the offender’s father is compelling. The shame, hurt and emotional distress conveyed by it is palpable. The offender’s father unequivocally accepts responsibility for neglecting his son emotionally and for the consequences that has led to. He states that the offender’s arrest has taken a significant emotional toll on his mother and that she has been unwell. The offender’s father wants the chance to make good his mistakes by supporting his son when he returns to China to help him find a job and to prosper.

53. The offender told the psychologist that he understood the impact his offending has had on his family, his girlfriend and the community. He expressed remorse for his actions. He accepts that he deserves to be punished for what he did. He also expressed remorse to Dr Furst, in his letter to the Court and during the course of his oral evidence.

54. The offender plans to return to China and to pursue a career in commercial cookery. He told the psychologist that he has a lot to prove to his parents.

55. The psychologist opined that the offender was suffering mild psychological distress at the time of the consultation (March 2022), with mild symptoms of depression and moderate symptoms of anxiety. He was assessed as having normal levels of impulsivity. Dr Furst opined that the offender had probably suffered some anxiety related panic attacks whilst in custody.

56. I accept the psychologist’s opinion that the offending conduct arose as a result of the interplay of situational stressors and personal factors. He was brought up in strict and harsh conditions in which he was deprived of autonomy, love and a fatherly role model, which was followed by financial, social, developmental and emotional deprivation involved in adopting to a new life in a foreign country with a different language, culture and legal system, as a teenager. His expected level of independence was unrealistic and not consistent with his needs as a young adolescent. His behaviour demonstrated naivety, limited coping skills, poor consequential thinking and immature problem-solving skills that all led to poor judgement and decision-making when exposed to anti-social acquaintances who were prepared to exploit him.

57. The psychologist referred to accepted research that demonstrates that adolescence is:

1. a unique developmental period associated with high risk taking, poor self-regulation and immature executive function because the brain is still developing; and

2. a time when risk appraisal is reward-biased and discounts negative outcomes.

63. The psychologist opined that the offender had a number of positive prognostic factors, indicating that he has strong prospects of rehabilitation, including;

1. a lack of prior misconduct in his childhood;

2. a history of stable romantic relationships and employment; and

3. his willingness to work in custody and to engage in further study with firm plans for the future.

64. The psychologist opined that the offender will not obtain much benefit from the programs offered in custody due to his lack of criminogenic risk factors, strong prospects of rehabilitation and limited English skills. The psychologist opined that he would benefit from some psychological counselling to address his childhood issues and his psychological distress as a result of being in custody.

65. Dr Furst was supportive the psychologist’s opinion and it is unnecessary to set out his opinion.

Objective Seriousness

66. The offender provided names and addresses to be used for the delivery of consignments. He directed Li to collect packages and deliver them to him and to provide him with names and addresses. He also allowed consignments to be delivered to him at addresses he provided.

67. The offender monitored the delivery information for consignments to pass on to others, including Li and Wong. He corresponded extensively with Li via WeChat about all aspects of Li’s involvement. The offender negotiated payments to Li for his involvement.

68. The offender was responsible for taking delivery of packages from Li and passing them on to Wong and others.

69. The offender was directed by others including Wong and S. The offender was in communication with both Wong and S as to the progress of deliveries and the provision of names and addresses.

70. The offender knew that the packages contained drugs and from the size and weight of the packages had knowledge of the approximate quantity, but not the purity. The offender did not know the precise quantity of drugs in each package.

71. The offender played an intermediate role in the organisation. He used Li to distance himself from the risk of detection. His conduct was planned and premeditated and persistent over a period of time. His involvement came to an end through his arrest. His course of conduct involved a series of criminal offences.

72. The drugs imported consisted of 249g of pure heroin, 500g of methamphetamine of unknown purity and 7,970g of pure ketamine. The quantity of drugs was substantially above the commercial threshold.

73. The offender committed the offences for financial gain.

74. The possession of the unauthorised pistol offence is of low objective gravity. There is no evidence of any improper use of it. It was incapable of causing serious injury or death. The offender volunteered that he had it in his possession. I accept his evidence that the possession of the pistol was not connected with the importation offence.

75. I have taken into account the maximum penalty for the offences.

Deterrence

76. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.

77. There is a need for specific deterrence, but it is reduced for the following reasons. The offender became involved in the offences as a result of his financial situation and immaturity. The offender is likely to return to China and is unlikely to reoffend. The offender has recognised the error of his ways and begun a process of rehabilitation.

Other Matters

78. The offender was 18 at the time of the offences and psychologically immature. I accept the psychologist’s opinion that the offender was expected to fend for himself in Australia at age 15, when he did not have the appropriate skills or experience to do so. His immaturity led to poor judgement and decision-making and allowed him to be taken advantage of by others. I am satisfied that the offender was not fully aware of the consequences of his actions by reason of his immaturity which was a significant factor in the commission of the offences and accordingly his culpability for the offences is reduced. In this case, general deterrence, retribution and denunciation should be afforded less weight and greater weight should be placed on rehabilitation.

79. The offender had a difficult upbringing that led to his immaturity and the need to fend from himself at a young and impressionable age without proper support or guidance. The circumstances of his upbringing led to his judgement and decision-making being compromised and this reduces his moral culpability for the offences to some extent.

80. The offender did not have a record of prior convictions and was a person of good character.

81. The offender has expressed remorse to the authors of the various reports and to the Court. I am satisfied that he understands the impact that his offending had on the community and that he accepts responsibility for his actions. I am satisfied that he is genuinely contrite. His plea of guilty also indicates remorse.

82. The offender has strong prospects of rehabilitation. The offender has used his time productively in custody working and making plans for the future. He has strong social support in China and intends to return there and pursue a career in cooking. He has no history of drug or alcohol use. His mental condition can be improved by psychological counselling to address the issues relating to his childhood. The offender has demonstrated by his behaviour in custody that he has the capacity to reform and mould his character to conform with social norms and the sentence imposed should give him an opportunity to rehabilitate himself.

83. The offender co-operated with the authorities at the time of his arrest by giving them access to his mobile telephone, allowing them to search is apartment and by telling them about the pistol.

84. The offender has experienced harsh conditions in custody as a result of the COVID-19 pandemic. He has suffered some anxiety and depression as a result of being in prison.

85. I am satisfied that the conditions of his incarceration have been difficult for him and I have taken that into account in arriving at the appropriate sentence.

86. The offender’s incarceration has caused his mother significant emotional distress and some ill-health.

87. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise.

88. I have had regard to the sentences that I will impose on Donghao Li and Mum Kit Lock for their different roles in the same organisation.

Penalty

89. The offender conceded that a sentence of full-time imprisonment was the only appropriate sentence. I have had regard to s 5 Crimes (Sentencing Procedure) Act and s 17A of the Crimes Act 1914 and conclude that the concession was appropriately made, for the reasons I have set out in this judgment.

90. The offender is convicted.

91. In relation to the state offence, I impose a term of imprisonment of 9 months with a non-parole period of 6 months to date from 20 April 2021. The non-parole period will expire on 19 October 2021 and the head sentence will expire on 19 January 2022.

92. In relation to the federal offence, I impose a term of imprisonment of 6 years to date from 20 July 2021 and expire on 19 July 2027. I fix a non-parole period of 3 years that will expire on 19 July 2024. The offender will be eligible to be released on parole on 19 July 2024.

Explanation of the Sentence Imposed

93. I am obliged to explain to the offender the effect of the orders I have made.

94. Baiqi Fu, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 3 years and 3 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 19 July 2024.

95. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 19 July 2024. If you are released on that day, you will remain on parole for a further period of 3 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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Decision last updated: 30 August 2022