R v Huang

[2006] NSWDC 5

CITATION:	R v Huang [2006] NSWDC 5
HEARING DATE(S):	04/08/2006
JUDGMENT DATE:	4 August 2006
EX TEMPORE JUDGMENT DATE:	08/04/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment. It will commence on 14 December 2005. I set a head sentence of eight years with a non parole period of four years. The non parole period will expire on 13 December 2009.
CATCHWORDS:	Criminal Law - Import - Aid and Abet - Sentence
LEGISLATION CITED:	Customs Act (Cwth) Criminal Code (Cwth)
PARTIES:	DPP (Cwth) Huang, Zong Yao
FILE NUMBER(S):	06/11/0362
SOLICITORS:	Commonwealth DPP Jeffreys and Associates

SENTENCE

1 HIS HONOUR: Zong Yao Huang appears for sentence today for his part in the criminal scheme in which he was involved which had as its object the importation of quite a considerable quantity of heroin into Australia. I will speak of the role of four people, two of them, this offender and a Mr Wong played the role of organisers. One, Mr Sanson, was the courier, and one, Mr Lau, had the job of observing the courier when he arrived in Australia.

2 Mr Sanson was arrested at Cairns airport. He was sentenced in Queensland to a period of imprisonment of 13 years with a non parole period of five and a half years. Mr Lau, the observer, was sentenced by his Honour Judge Maguire to imprisonment for eight years with a non parole period of four years. Mr Wong, one of the two organisers, was sentenced by his Honour Judge Puckeridge to a sentence of nine years with a non parole period of four and a half years.

3 Interesting questions arise from a consideration of these sentences. It is difficult to understand why Mr Sanson would not have a justifiable sense of grievance when the organisers end up with less than he got. Nor can I see any real explanation in any of the three people sentenced to date as to why it is that their non parole periods should not be in the 60 to 66 per cent range which is normal for Commonwealth matters. To these questions of parity I will return.

4 As I said the offender was one of the organisers of the importation. He conveyed information to and from Mr Wong and also acted at his direction. A number of telephone calls were intercepted which show that the offender was dependent upon and instructed by Mr Wong. However, he still nevertheless performed a very important part in the operation including arranging for a ticket and travel documents for Mr Sanson so that he could fly to Hong Kong and return with the drugs.

5 This was a very serious offence, the maximum penalty is life imprisonment and the quantity of heroin involved was quite considerable. Although potentially misleading, the street value of the drug was somewhere between two and six million dollars.

6 The offender said that he got involved in this operation because he was asked to, and because he needed to pay off some debts. He said that he had a gambling debt and his involvement in this offence was in order to obtain money to pay that debt off.

7 The offender is now 23. He was 21 when he committed this offence. He was born in China and came to Australia in 1991 when he was aged nine. He had a positive and happy upbringing and continues to have a close relationship with his parents. However, he left school at 16 against his parents’ wishes and has worked from time to time, but perhaps more importantly, he began using drugs. At the same time he was gambling and, as I have said, it was his gambling debt which he says was his motivation after being approached by others to commit this offence.

8 The offender pleaded guilty at an early stage to the offence for which he is to be sentenced, that is having aided and abetted the importation of not less than the commercial quantity of heroin. I will discount the sentence I would otherwise have imposed in order to reflect the willingness of the offender to facilitate the course of justice. Since the offender went into custody he has made contact with the prison chaplain and has sought to obtain drug and alcohol counselling, although such counselling is not easily found given the scarcity of resources available in the prison system.

9 Both the Crown and Mr Jeffreys who appears for the offender, agree that the offender’s role was senior to that of Mr Lau, the observer, but junior to that of Mr Wong, the organiser. That leaves a limited range in which to work, given the relative closeness of the sentences ultimately imposed on both Mr Wong and Mr Lau. It is difficult to see how Mr Wong could end up with a sentence of only nine years in light of the other sentences imposed on Mr Lau and Mr Sanson. Mr Jeffreys also submits that although the offender’s role was senior to that of Mr Lau, bearing in mind that the offender was only just 21 and was someone who is easily influenced, he should not receive a sentence which is somewhere between the eight and nine years imposed on the other two.

10 When comparing this offender with Mr Wong and Mr Lau, it is to be recognised that because of the offender’s age he was less mature than them and less able to reason about the wrongfulness of what he was doing. However, it has to be said that it does not take much maturity at all to realise just how wrong it is to get involved in an operation, especially as an organiser, which has as its purpose the importation of a large quantity of a terrible and dangerous drug.

11 When sentencing the offender I have to ensure, as much as I can, that he is not left with a justifiable sense of grievance when he compares the sentence imposed upon him and upon others. Were it not for those sentences I would also have imposed a non parole period of somewhere between 60 and 66 per cent of the head sentence. Given that the issue of parity also applies to the non parole period just as much as the head sentence, I feel constrained to also impose a non parole period which is half of the head sentence. I consider that the offender’s greater role than that of Mr Lau is effectively balanced out by his younger age and so I will impose upon him the same sentence that Judge Maguire imposed.

12 The offender is sentenced to imprisonment. It will commence on 14 December 2005. I set a head sentence of eight years with a non parole period of four years. The non parole period will expire on 13 December 2009.

13 Mr Huang I have set a non parole period of four years which, as you have just heard, expires on 13 December 2009. On that day you are eligible to be released to parole. When you are released to parole you will be nevertheless still serving your sentence in the community until your total sentence expires on 13 December 2013. If during your period on parole you are not of good behaviour or you commit other further offences or you disobey any of the conditions of your parole, you will be returned to custody and may have to end up serving the entirety of the sentence I have imposed upon you.

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