R v Hok Man Tsang

[2018] NSWDC 184

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hok Man Tsang [2018] NSWDC 184
Hearing dates:	31 May 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1. The sentences I would have imposed had separate sentences been imposed, after allowing for the discount for the plea of guilty, are: Count 1 -   18 years imprisonment with a non-parole period of 13 years and 6 months; Count 2 -   16 years imprisonment with a non-parole period of 12 years; Count 3 -   6 years imprisonment with a non-parole period of 4 years and 6 months; Count 4 -   12 years imprisonment with a non-parole period of 9 years; Count 5 -   6 years imprisonment with a non-parole period of 4 years and 6 months, taking into account the matter on the Form 1.  2. I impose an aggregate sentence of 24 years, with a non-parole period of 18 years. 3. The sentence is to date from 25 January 2016. The non-parole period will expire on 24 January 2034 and the head sentence will expire on 24 January 2040. 4. The offender will be eligible to be released on parole on 25 January 2034.
Catchwords:	CRIMINAL LAW – offences – manufacture and supply of prohibited drug – recklessly dealing with proceeds of crime SENTENCING – aggravating factors – mitigating factors – planned or organised criminal activity – objective seriousness – financial gain – general deterrence – specific deterrence – prospects of rehabilitation – plea of guilty SENTENCING PRINCIPLES – remorse – totality – parity – aggregate sentences OTHER – extraction of Methylamphetamine from imported substances – large commercial quantity
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina v Tsang
Representation:	Counsel: Mr D Patch (Crown)   Ms L Jardim of counsel (Offender)
File Number(s):	2016/25234
Publication restriction:	None

Judgment

1. Hok Man Tsang (the offender) appears for sentence after pleading guilty in the Local Court to:

Count 1 - Knowingly take part in supply of a prohibited drug not less than a large commercial quantity (292kg Methylamphetamine) contrary to section 25(2) Drug Misuse and Trafficking Act 1985;

Count 2 - Knowingly take part in supply of a prohibited drug not less than a large commercial quantity (176kg Methylamphetamine) contrary to section 25(2) Drug Misuse and Trafficking Act 1985;

Count 3 - Supply of a prohibited drug not less than a large commercial quantity (1.3kg Methylamphetamine) contrary to section 25(2) Drug Misuse and Trafficking Act 1985;

Count 4 - Knowingly take part in an attempt to manufacture a prohibited drug not less than a large commercial quantity (88.5kg Methylamphetamine) contrary to section 24(2) Drug Misuse and Trafficking Act 1985;

Count 5 - Supply of a prohibited drug not less than a large commercial quantity (904.1g Methylamphetamine) contrary to section 25(2) Drug Misuse and Trafficking Act 1985.

2. The maximum penalty for each offence is life imprisonment and/or a fine of $550,000. Parliament has specified a standard non-parole period for each offence of 15 years.

3. The offender also asks the Court to take into account one count of recklessly dealing with proceeds of crime, being $16,500 in cash, contrary to section 193B(3) Crimes Act 1900 on a Form 1. The maximum penalty for the Form 1 offence is 10 years imprisonment.

Facts

4. The parties presented an Agreed Statement of Facts that can be summarised as follows.

5. The offender is a Chinese national. He arrived in Australia on 13 November 2015. The offender had been in Australia for 3 periods prior to that date; 6 March 2013 to 9 March 2013, 9 December 2014 to 7 March 2015 and 10 March 2015 to 9 June 2015.

6. The offender participated in organised criminal activity in Australia to extract Methylamphetamine from imported substances contained in bottles. The offender communicated with persons unknown in China and Australia. Those persons directed his day to day activities and provided him with funds for his living expenses and the tasks involved in the enterprise.

7. Whilst in Australia the offender used a fraudulent NSW driver’s licence, in the name of Ho Nam Lee to rent various storage units. His role included the movement of various items from the storage units at Hurstville and Rockdale. He arranged accommodation for the persons involved in the manufacture process and cleaning.

Kennards Storage, Miranda – Count 1

8. On 2 December 2015 the offender leased storage unit T005 at Kennards Storage at Miranda, in the name of Hok Min Lee.

9. On 3 December 2015 the offender attended the storage unit with another male, Roy Chiu. On 8 December 2015, Chiu and other males attended with a delivery truck and unloaded a large number of boxes into the storage unit. On 18 December 2015 the offender attended the storage unit.

10. On 24 December 2015, police were granted a covert search warrant for the storage unit. Police located 49 cardboard boxes, labelled “DIY Digital Painting Kits”. Each kit contained 2, 100ml bottles purporting to be paint. Forensic testing found the content of the bottles to be Methylamphetamine. A total of 3,322 bottles were seized containing 292kgs of liquid Methylamphetamine.

11. On 29 December 2015 the offender attended the storage facility, but did not attend the storage unit.

Storage King, Hurstville – Count 2

12. On 28 December 2014 the offender leased storage unit 2015 in the name of Ho Nam Lee. On 29 November 2015 the lease was transferred to unit 2007.

13. On 30 December 2015, police were granted a covert search warrant for the storage unit. The unit was found to contain 10 cardboard boxes containing a total of 2,000 bottles purporting to be paint or varnish. Each bottle was sealed with foil and contained cloudy off-white liquid. Forensic testing found the content of the bottles to be Methylamphetamine. A total of 2,014 bottles were seized containing approximately 176 kg of Methylamphetamine.

14. The storage unit was reconstructed to resemble its original condition and the bottles were substituted. On 23 January 2016 the offender attended and removed 5 cardboard boxes containing substituted bottles.

Storage King, Rockdale – Count 3

15. On 25 March 2015 the offender leased storage unit A83 at Storage King at Rockdale in the name of Ho Nam Lee.

16. On 30 December 2015 police undertook a covert search of the storage unit. Police located a large amount of cooking materials and other equipment including plastic shelves, a vacuum heat sealer, pink and green plastic trays, plastic garbage bags, the storage container full of yellow lights, vegetable dryer and metal pots. Swabs taken from 5 items located contained traces of Methylamphetamine, ephedrine and pseudoephedrine.

17. A brown crystalline substance was also located within a plastic container. This substance was analysed and confirmed to be 1.3 kg of Methylamphetamine. The substance was removed and replaced with an inert material.

18. The storage unit was reconstructed to resemble its original condition.

19. On 16 January 2016 the offender attended the storage unit and removed a number of boxes. On 23 January 2016 the offender attended the storage unit again and removed a number of boxes and suitcases.

Residential premises at Campsie – Count 4

20. On 23 January 2016 the offender attended the Rockdale and Hurstville storage units and then attended a residential unit block in South Parade Campsie, arriving at about 7.00pm.

21. The offender was observed unloading the contents of his car with the co-offender, Hin Lok Mok. This included an amount of approximately 88.5 kg of Methylamphetamine.

22. Later that night, Mok attempted to convert the liquid from the bottles into a crystalline substance. The attempt failed because he was using the substituted material.

23. Recorded telephone conversations between the offender and an unknown male and Mok and an unknown male, confirmed that attempts were made to convert the liquid, but they were unsuccessful.

24. At about 5:45pm on 25 January 2016, police executed a search warrant at the residential unit in South Parade Campsie. Police located at approximately 1000 bottles containing substituted material as well as a large number of empty bottles and cooking equipment.

Residential premises at Hurstville - Count 5 and Form 1 offence

25. On 25 January 2016 police executed a search warrant at the offender’s residence in Hurstville. The offender was alone in the unit and placed under arrest.

26. Police located $16,500 in cash (Form 1 offence), 1.3kg of the substituted material from the storage unit in Rockdale, 10 bottles containing 904.1g of Methylamphetamine, yellow lights, pink and green plastic trays and other material previously seen during the covert search warrant at the Rockdale storage unit.

The Offender’s Case on Sentence

Psychological Report

27. The Court received a report of Dr Christopher Lennings, Psychologist, dated 23 February 2018 that can be summarised as follows.

28. The psychologist saw the offender once on 21 February 2018 by audio-visual link for the purpose of preparing the report, with the assistance of an interpreter.

29. The offender told the psychologist that he became involved in the offending conduct as a result of incurring gambling debts in Hong Kong. He still owes in excess of $100,000 and remains concerned about the potential for retribution.

30. The offender accepted that what he has done is ‘pretty bad’ but he hopes to be reunited with his family. He knew that the drugs could do harm to society. He feels that he and his family have suffered as a result of his incarceration. He feels disgraced, ashamed and regrets his actions, but at the time he did not believe that he had much choice.

31. The offender used Methylamphetamine himself in Hong Kong when he started to lose money gambling. He reported heavy use with significant withdrawal effects.

32. The offender was born in Hong Kong. His father is deceased. His mother is living in Macau. His very concerned that he may not see her again. He remains in contact with his brother but cannot contact his 2 sisters because he feels very ashamed of his actions.

33. The offender’s family moved to Macau when he was 7 years of age. The family had trouble financially and they lived in quite severe poverty. He left school in year 7 to go to work to help his family financially. He was bullied at school and had no social network after the family moved to Macau.

34. On leaving school he worked as a packer in a clothing factory. After 3 or 4 years he took up work ironing clothes because the pay was better. A couple of years later he moved back to Hong Kong for better wages and took up work selling goods at a street market.

35. In 1978 the offender met his second wife. In about 1981 she moved to Canada and sponsored his immigration to Canada. He worked in a kitchen and then as a taxi driver before working as a truck driver. In 2011 the offender returned to Hong Kong after his relationship broke down. He was feeling depressed and without focus. He could not find work in Hong Kong because of his age and lack of familiarity with the social system. He obtained work as a guide working on commission to bring people into a casino and other places of entertainment. This introduced him to gambling and the use of Methylamphetamine.

36. The offender gave a history of heavy alcohol use after his divorce for about 2 years. He managed to cease drinking to excess before turning to gambling. He began gambling in about 2005 and this activity reached its peak in about 2011. He incurred substantial debts in Hong Kong. He continued to gamble in Sydney.

37. He commenced smoking Methylamphetamine in 2012. He used about one half to one gram about 2 times per week. His initial use was heavy to alleviate severe headaches that he was getting at the time. He experienced some uplift from drug use. He experienced significant withdrawal symptoms in the community and when he first came into custody.

38. The offender was first married in 1976, after his girlfriend fell pregnant. They argued a lot and the marriage did not last long. He has no contact with his child from that marriage.

39. The offender has 2 daughters from his second marriage. He has had no contact with them since about 2006, but provided child-support until about 2011. The offender reported that the loss of his daughters was a major psychological blow to him. His family does not have any contact with his daughters.

40. The offender described himself as sad, particularly around birthdays, anniversaries and Chinese New Year. Prior to being incarcerated he was managing his mood by using Methylamphetamine. He was happiest when he had a big win at gambling.

41. The offender reported poor sleep, but generally has more energy since ceasing drug use.

42. The psychologist opined that the offender was a generally sad person who experienced a major crisis when his relationship broke down, resulting in the loss of contact with his daughters. He then participated in maladaptive coping mechanisms including alcohol abuse, gambling and illicit drug use. He incurred debts which introduced him to a criminal peer group and their activities. The offender does not meet the criteria for any psychiatric disorder. He would benefit from treatment for his addictions.

Letter from the Offender

43. The offender tendered a handwritten letter dated 12 March 2018. In the letter the offender has accepted responsibility for his actions, describing them as stupid, selfish and wrong. He states that he had a bad drug habit that made it difficult for him to see the whole picture. He expressed remorse for his actions.

Letter from the Offender’s Family

44. The offender tendered a reference signed by his brothers and written by his nephew dated 29 May 2018. His family described him as a kind and caring person who likes to help. He has always financially supported his mother. The offender has expressed remorse to his family.

Consideration

Objective Seriousness

45. The section 25(2) offences involved possessing the drugs for the purpose of supply and undertaking a number of organisational activities to convert the liquid into a crystalline substance for supply to others. The offender leased a number of storage units using a fraudulent driver’s licence, between December 2014 and December 2015. The offender arranged deliveries at the storage units and attended from time to time to remove drugs to convert them. The offender had possession of a large quantity of cooking materials for the purpose of converting the drugs.

46. The offender’s organisational activities took place over an extended period and over a number of locations. The offender was in a position of trust relating to the activities of the operation because he was responsible for the safe keeping of a large quantity of drugs.

47. The quantity of the drugs is a significant aggravating feature. Count 1 relates to 292 kg being 584 times the large commercial quantity. Count 2 relates to 176 kg being 352 times the large commercial quantity. Count 4 relates to 88.5 kg being 177 times the large commercial quantity. Counts 3 and 5 relate to significant quantities of the drug. The total amount of the drugs was in excess of 550 kg.

48. The purity of the drugs ranged between 38.8% and 45.7%.

49. The offences required and demonstrated an extensive amount of planning and organisation. The offender played an essential role in the operation. He was not at the bottom of the hierarchy, but was not a principal.

50. The offender’s activities were directed by others. The offender was motivated by the need to pay off gambling debts he owed to criminal associates. The operation also paid his living expenses. At the time of his arrest the offender was in possession of $16,500 in cash. I note that the offender was using the drug at the time of the offences. The offences were committed for financial gain, but the offender was not motivated by greed.

51. The offender told the psychologist that he was concerned about retribution for the money he continued to owe to criminal associates. There is no evidence of any specific threats on which I could make a finding that the offender was acting under duress.

52. The maximum penalty of life imprisonment for each offence reflects the seriousness of the offences. I have had regard to the standard non-parole periods as a legislative guidepost to the appropriate sentence.

Deterrence

53. General deterrence is of significance in sentencing offenders for serious drug supply offences. The availability of drugs is pervasive in the community and persons considering committing these types of offences should be aware by references to the penalties given for them that they will meet with severe punishment if they choose to participate in the supply of prohibited drugs.

54. The psychological evidence does not warrant any reduction in the weight to be afforded to general deterrence in this matter.

55. There is a need for specific deterrence. The offender has a prior conviction in Canada for drug supply. The offender’s drug addiction appears to be in remission since he has been incarcerated. He requires treatment for his drug and gambling addictions.

Aggravating factors

56. Each of the potentially relevant aggravating factors are inherent characteristics of the offences and I will not refer to them, to avoid double counting.

Mitigating factors

57. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender’s gambling and drug addiction has been in remission whilst he has been in custody. He shows insight into his behaviour that led to the offences. He has been in custody for more than 2 years and has not incurred any misconduct charges. I am satisfied that the offender has good prospects of rehabilitation.

58. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions and has expressed his remorse to the psychologist, to the Court and to his family. I am satisfied on the balance of probabilities that the offender has expressed genuine contrition and remorse.

59. The offender entered pleas of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32].

60. The Crown conceded that the offender should receive a 25% discount on the penalty imposed for counts 3, 5 and the Form 1 matter.

61. In relation to Count 1, the offender was committed for trial on the charge of attempting to supply 292 kg of Methylamphetamine. The offender pleaded to the charge in its current form at trial. The appropriate discount for Count 1 is 10%.

62. In relation to Count 2 the plea of guilty was entered in the Local Court on the basis that the facts would be disputed. The original charge specified an attempt to supply a quantity of 88.5 kg which was upgraded to 176 kg. The offender pleaded guilty to the charge in its current form at trial. The appropriate discount is 20%.

63. In relation to Count 4 the offender was committed for trial on an attempt to manufacture 88.5 kg of Methylamphetamine. The offender pleaded guilty to the charge in its current form at trial. The appropriate discount is 10%.

Totality

64. The facts of the offences support the finding that the offender was operating as a manager or organiser of a wholesale supply operation. This is a case where there must be some accumulation of the penalties imposed to reflect the different criminality involved in the offences to which the offender has pleaded guilty. I have had regard to the principle of totality in the context of the objective seriousness of the offences, the maximum penalties, the standard non-parole periods and the subjective matters.

Parity

65. I have had regard to the penalty imposed on Mok. There are good reasons for differentiating between the sentences imposed on Mok and the offender for Count 4 because the offender played a more significant role in the operation and had a previous conviction for drug supply.

Penalty

66. I have had regard to section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate.

67. The offender is convicted.

68. This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.

69. The sentences I would have imposed had separate sentences been imposed, after allowing for the discount for the plea of guilty, are:

Count 1 - 18 years imprisonment with a non-parole period of 13 years and 6 months;

Count 2 - 16 years imprisonment with a non-parole period of 12 years;

Count 3 - 6 years imprisonment with a non-parole period of 4 years and 6 months;

Count 4 - 12 years imprisonment with a non-parole period of 9 years;

Count 5 - 6 years imprisonment with a non-parole period of 4 years and 6 months, taking into account the matter on the Form 1.

70. I impose an aggregate sentence of 24 years, with a non-parole period of 18 years.

71. The sentence is to date from 25 January 2016. The non-parole period will expire on 24 January 2034 and the head sentence will expire on 24 January 2040.

72. The offender will be eligible to be released on parole on 25 January 2034.

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Amendments

20 November 2019 - Catchwords added

Decision last updated: 20 November 2019