R v Hsu

[2015] NSWDC 186

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hsu [2015] NSWDC 186
Hearing dates:	11 June 2015
Date of orders:	11 June 2015
Decision date:	11 June 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 7 years and a head sentence of 12 years
Catchwords:	CRIMINAL LAW – Sentence – Aiding and abetting – Importation - Methamphetamine
Category:	Sentence
Parties:	The Crown Wei-Lun Hsu
Representation:	Counsel: Mr K Averre - Offender   Solicitors: Commonwealth Director of Public Prosecutions
File Number(s):	2014/214981

SENTENCE

1. HIS HONOUR: Those involved in the importation of drugs into Australia perform various roles. The Mr Bigs of the drug world often rely on others to perform those essential roles which place them at a much higher risk of detection than those higher up in the hierarchy. In this case the offender, Wei Lun Hsu, was one of those who performed an essential role who was detected for what he was doing. It is not a matter of mitigation when sentencing this offender that there were others higher up in the organisation. His role was significant and he went into this very much with his eyes open.

2. In late May 2014 an unknown person took over a lease of premises at Riverwood. It was to this address that a consignment of what appeared to be LED down-lights was to be delivered. The offender flew into Australia on 21 June 2014 specifically for the purpose of facilitating receipt of the importation. A week after he arrived, an examination of the down-lights was conducted by the authorities. It revealed that there was a very large quantity of methylamphetamine concealed within the consignment, the total pure weight of the methamphetamine being 31 and a half kilos which had at the time a street value of about $10 million.

3. A controlled delivery of the consignment was made to the address at Riverwood. The offender was there at the time, but he did not actually receive the consignment from the police officers posing as delivery drivers. After the consignment was left in the carport, the offender took one of the boxes in a taxi to the area of the Entertainment Centre. He was seen to communicate over a mobile phone and also using an iPad with someone else. As part of that communication he took a photo of the contents of this box. Presumably that was enough to alert someone to the circumstance that police had been involved, because the offender then abandoned the box and headed to the airport to get his prearranged flight home.

4. The offender was arrested before he could get to the airport. In his possession he was found to have four mobile phones, an unused Optus SIM card, an iPad which had apparently had a factory reset performed on it, a photocopy of a Republic of China passport in the name of the person to whom the consignment was to be delivered, and his travel booking for return to his home in Taiwan.

5. The offender was interviewed by police and explained that what he was doing he did at the direction of a man by the name of Ah Cheng, the person who had paid for his ticket to come to Australia. Ah Cheng asked him to move into the premises which had been rented earlier, to take receipt of the goods, to take a box with him to Chinatown to show a friend of Mr Ah Cheng’s, to take the photograph using his iPad which he was observed taking, to send it to Ah Cheng, and then to restore the iPad to its factory setting, presumably after police involvement was detected.

6. This was a significant importation which was fortunately detected by police before that very large quantity of drugs could be distributed to drug users. Drugs are terrible things. They cause misery, they cause crime, and the effects of importations of this size are enormous. It is fortunate, as I say, that these drugs were never distributed to users through the good work of Customs and police. The offender knew of course of the illegality of what he was doing and the whole purpose of his travel to Australia was to facilitate this importation. His role, as I mentioned earlier, was an essential one, even if it was limited and he only acted at the direction of others. It is important to recognise that the Crown has charged him with aiding and abetting the importation, which is a significant indication of the role which the prosecution ascribes to this offender. Nevertheless his conduct was serious indeed.

7. The quantity is remarkable. It is 42 times the threshold of the commercial quantity and the maximum penalty for this offence is life imprisonment. Of course, the quantity of drugs involved in the importation is not to be given primary consideration in determining the appropriate sentence, but it remains a very relevant factor in determining what sentence should be imposed.

8. The offender did not give evidence before me but relied on the contents of a psychological report prepared at the request of his instructing solicitors. Ordinarily I might have some scepticism about claims made in a psychological report which are not backed up by an offender giving sworn evidence, but not in this case because there is nothing in the psychological report which would seek to explain or excuse the offender’s conduct.

9. He grew up in Taipei, the eldest of four children. He has a close and loving relationship with his parents, who owned a restaurant in which the offender worked from time to time. He has a good work history with only short periods of unemployment in between jobs and was expecting to have a greater involvement in the family restaurant later on. There are no significant issues with drugs or alcohol and there is, as I have said before, nothing to suggest any reason that the offender committed this offence. He was not short of money, he did not have gambling problems, he did not owe debts to drug dealers, and he was not one of those people who lacked moral guidance from his parents as he grew up. The offender’s decision to commit this serious criminal offence appears to have been one which he made very much as a calculated decision in order to obtain some form of financial reward. There is nothing of a psychological or psychiatric nature to explain his wrongdoing. The psychological report does make reference to depression, but accurately in my view attributes that to the fact that the offender has been arrested and is facing a significant sentence of imprisonment in a foreign country.

10. The offender has some limited criminal history in Taiwan for fraud matters. The Crown says he also has an assault conviction, but he denied that to the psychologist, and because it makes no difference to the ultimate result I will ignore any suggestion that he has a conviction for assault.

11. He clearly does not speak English well and that may be understating it. The interview from which the psychological report was produced was conducted in Mandarin - Mr Hsu is assisted by interpreter in court today - and in the psychological report it is reported that the offender relies on Mandarin speaking prisoners to convey information to prison officers. The fact that he is in prison in a foreign country means that his opportunities to speak to his family members over the telephone are limited because of the expense involved, and to receive personal face-to-face visits will be even more limited than would be the case if Mr Hsu was serving a sentence in a country where his family lived. He will thus do his sentence harder than would ordinarily be the case. As the Crown accurately points out however, not too much can be made of this. The offender made the deliberate decision to come to Australia, a foreign country, and commit the offence, and can hardly complain when he is required to serve his sentence in that foreign country.

12. The offender pleaded guilty at an early opportunity and in recognition of his willingness to facilitate the course of justice, I will impose upon him a sentence which is 25% less than it would otherwise have been.

13. Of course, general deterrence is of significant importance in this sentencing exercise. Ideally I would be sentencing one of the organisers, someone higher up in the hierarchy, but that is rarely the case. But it is important to recognise that the offender does not get a benefit because others more involved in this offence remain free. I have to impose a sentence on this offender for what he did, and even though his role was limited, as I have explained, his deliberate decision to commit this serious crime needs to be marked by a significant sentence so that others who contemplate doing what the offender did may pause. Courts attempt to reduce the problems which drug use results in primarily through imposing sentences which will act as a deterrent to others who facilitate the importation of harmful drugs as the offender did. There should be no mitigation of that principle simply because the Mr Bigs of the drug trade are often difficult to detect and relatively rarely face punishment for their much more serious misconduct.

14. I have been assisted by some comparative cases which both the Crown and Mr Averre for the offender have provided to me. Of course, no two cases are the same, but I have been able to identify the differences between those comparative cases and the present, in particular by noting the difference between the various roles played by the various offenders in those other cases and the offender’s role in this case.

15. The offender is sentenced to imprisonment. I set a non-parole period of seven years to date from 21 July 2014, the day on which the offender went into custody. I set a head sentence of 12 years. The non-parole period will thus expire on 20 July 2021, on which day the offender is eligible to be released to parole.

16. Mr Hsu, I am required to explain that sentence to you. I see the interpreter has just done that but let me make sure that you do understand. Your sentence has started from the day you were arrested. From that day you must serve seven years at least in gaol. The earliest possible day you can get out is 20 July 2021. Whether you get out on that day or not depends not on me but on the parole authorities, but you cannot be kept in custody after 20 July 2026.

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Amendments

04 September 2015 - Published as restricted in error

Decision last updated: 04 September 2015