R v Jiang

[2022] NSWDC 667

District Court

New South Wales

Medium Neutral Citation:

R v Jiang [2022] NSWDC 667

Hearing dates:

01 December 2022

Date of orders:

06 December 2022

Decision date:

06 December 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify a sentence of imprisonment of 5 years 3 months with a non-parole period of 3 years

Catchwords:

CRIME — Drug offences — Commonwealth offences — Possess border-controlled prohibited plant or drug

Legislation Cited:

Criminal Code (Cth)

Cases Cited:

BP v R [2010] NSWCCA 159

DPP v Foley [2019] VSCA 99

Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520

Hoang v The Queen [2018] VSCA 86

Imbornone v R [2017] NSWCCA 144

Lay v R [2014] NSWCCA 310

Nguyen v Pham [2010] 205 A Crim R 106

Postiglione v The Queen [1997] HCA 26

R v Boimah [2017] QCA 50

R v JCW [2000] NSWCCA 209

R v Karan [2013] NSWCCA 53

R v Miguel David [12 July 2022] NSWDC unreported

Tran v R [2017] VSCA 346

Category:

Sentence

Parties:

Rex (Commonwealth)
Wenjie Jiang (Offender)

Representation:

David Jordan (Counsel for the CDPP)
Georgia Lewer (Counsel for the Offender)

C’th Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/00115943

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Wenjie Jiang is before Court today to face sentence for one offence contrary to s 307.5(1) in conjunction with s 11.1(1) Criminal Code (Cth) alleging that he, between 24 April 2020 and 26 April 2021, at Burwood, in the State of New South Wales, attempted to possess a substance, that substance having been unlawfully imported, it being a border-controlled drug, namely, heroin, and the quantity attempted to be possessed being a commercial quantity. The maximum penalty specified for this offence is imprisonment for life and a fine represented by 7,500 penalty units. There were no additional offences to be brought to account.

The Plea

2. The offender pleaded guilty to this offence in the Local Court at Burwood on 8 June 2022 from whence he was committed for the sentence proceedings in this Court. He therefore has the benefit of the contrition and remorse thereby demonstrated and discount for the utility of the plea of guilty he provided in accordance with authority which now has expressed the law in that regard. I propose to allow a discount of 25% for the utility of the plea of guilty which will apply to the synthesis of factors relevant to the determination of sentence, including, which I accept to be demonstrated, contrition and remorse.

Pre-Sentence Custody

3. He has been in custody since he was arrested for this matter on 26 April 2021. Accordingly, the sentence I impose today shall commence on that date.

The Co-Offender

4. There is a co-offender, given name Yufeng, family name Lin. The proceedings against that person have not yet been determined. The matter is listed for trial in this Court commencing on 17 April 2023.

The Nature of the Offence

5. This is yet another case where someone of modest means has been exploited by another to take part in the steps involved in the importation of prohibited drugs into this country. A person in the shoes of the offender faces the risk of detection and arrest, providing a barrier or a measure of distance between his role and the persons for whom he was engaged. The tragedy is that once again before this Court is a young man without prior criminal history who will spend some little more time in custody before he will be eligible for parole. All for the return to him of $750.

6. The Court has the task of imposing a sentence that will reflect the need for punishment and denunciation and to make clear to those who might be tempted for such modest return to engage in such criminal activity that they will face punishment from our criminal justice system if they are detected in these enterprises.

The Facts

7. There is an agreed statement of facts and there is an ERISP to which I will refer in part.

8. On 14 April 2021 a DHL consignment, with a bill number specified in the facts, arrived at the DHL facility in Mascot. It came from Singapore. It was addressed to “DA LIN linyu feng” and gave an address at Burwood. The person for contact listed on the consignment was “linyu feng” and the consignment mobile number was specified.

9. The consignor was a company, PGS Logistics Pty Ltd, given an address 70 Alps Avenue, 498801 Singapore. The package was described as home bedsheets. The package was examined by Australian Border Force and found to contain six packets of woven blankets. Inside of each blanket were three brown cardboard separators. Paper from the separators was removed which revealed white powder inside. The powder was tested and returned presumptive results for heroin.

10. On 22 April 2021 New South Wales Police took possession of the consignment and thereafter a controlled delivery was undertaken about 11.55am on 26 April 2021 when they attended the Burwood address with the consignment. As they approached the consignment address the offender was sitting in the driver’s seat of a red Holden Commodore, about 30 metres away from the consignment address on the eastern side facing south. The police observed the registration number of the vehicle, which is noted in the facts. The undercover police officer parked the delivery van opposite the consignment address, removed the consignment from the side of a van, and placed it on the ground next to the van. Posing as delivery driver the undercover officer walked toward the consignment address; as he entered the front yard of the premises a voice called out from the direction of the red Holden Commodore. The following conversation occurred.

Offender: “Excuse me, excuse me”.

Police: “Can I help you?”

Offender: “Oh I am waiting for package”.

Police: “You live here? I am delivering a package here”.

Offender: “My address changed I am waiting for package”.

Police: “OK so you are waiting for package to this address?”

Offender: Yes, my address change”.

Police: “So you are Da Lin?”

Offender: “Mm yes, yes”.

11. The offender appeared to look at the sheet held by the police officer.

Police: OK your package is next to my van over there”.

12. The undercover officer then began walking towards the van. The offender followed close behind. The offender bent over and read the sticker on the package. There was conversation in the following terms:

Offender: “Yes this is right”.

Police: “No worries, mate, just sign here”.

13. The offender signed the sheet, picked up the consignment, and returned to his car to place the consignment in the backseat.

14. The offender was then arrested and he and his vehicle searched before he was conveyed to Burwood Police Station.

15. He participated in an ERISP, where he said inter alia:

1. He was asked by a friend to collect the package for him.

2. The friend was Lin Yufen, and he had known him for three to five months.

3. His friend worked on a construction site where the offender worked.

4. His friend lived in a unit in a small residential area near the train station in Flemington, but he did not know the address.

5. He said he was told the package contained clothes, shoes, and trousers.

6. The clothes were for the girlfriend of a friend of his friend.

7. His friend previously asked him to pick up a package and asked him to unpack the parcel first and then gave it to him. The parcel contained woman’s shoes, clothing, and trousers.

8. His friend visited him the previous night, about 9.30pm, and asked him to pick up a package which contained clothes, shoes, and trousers.

9. His friend promised him two days of wages amounting to $750.

10. His friend wrote the address on a piece of paper the previous night.

11. He admitted it was suspicious when his friend asked him to pick up the package.

12. He said that he nominated himself as the owner of the consignment because his English was not good and his friend wrote the wrong address.

13. He said that he told the delivery driver his friend was the owner of the consignment.

14. He denied that he was picking up drugs.

16. The commercial quantity threshold for heroin is 1.5 kilograms. The total net weight of the substance seized was 1.9248 kilograms, or as expressed in the facts, 1,924.8 grams. Thus, the total mass was 424.8 grams above the threshold for commercial quantity. However, analysis of a sample of the consignment returned a purity of 79.5%. The total pure weight of the consignment was therefore presented as 1,530.216 grams or 1.53 kilograms. This is a Federal prosecution and it is the pure weight of the consignment which is the relevant quantity for the purposes of the assessment of sentence. This was 0.03 kilograms above the commercial threshold.

17. The offender was found with a Huawei mobile phone. He voluntarily provided the passcode to the police but the phone could not be extracted at the station.

18. Between 12 April 2021 and 26 April 2021, the offender exchanged text messages with a person named Min with a mobile number ending in 579; this was not the telephone number listed as the contact number on the airways bill.

19. On 24 April 2021, about 10.24pm, the offender received messages from Min in Chinese. Translations of those are as follows:

1. The consignment address and a name, XX XXXX Road, Burwood, 2134, linyufeng (sic). That is the consignment address;

2. Advising to “wear work clothes work shoes”,

3. Sending a photograph of DHL express tracking,

4. Stating “maybe it will be a private car. Pay attention then because it is 3rd party”, and

5. “If not a private car, then it’s DHL”.

20. On 26 April 2021, at 7am, the offender sent a photograph to Min from inside of his vehicle outside the consignment address. At 7.13am he sought instructions as to the name of the consignee:

“convenient to tell me the name. It’ll be embarrassing if the courier ask for the name”. At 10.31am Min replied stating, “yufengling” and “Lin Yu Feng”.

21. The offender received a message from Min at 10.45am:

“if when you sign it and the residents ask. just say it’s filled incorrectly, hence you are waiting there. didn’t want to wake anyone up so early”.

22. The offender responded,

“okay … but looks like no one lives here. Did not see anyone come out”.

23. Sometime before the arrest Min asked the offender to send him his location and the offender obliged.

24. At 12.24pm, shortly before the offender’s arrest and seizure of his mobile phone by the police, the offender could not respond to following text from Min:

“wheres the man” and “you re gone too?”.

25. At 12.26pm, when the offender’s phone was held by the police, a call came from Min.

26. The Crown tendered the accused’s ERISP. The Crown asked the Court to review questions 51 to 59 inclusive. I shall quote:

“Q 51. Has he ever asked you to … pick up packages before?

A. INTERPRETER: He did ask me to receive a package before, but he said, ah, he asked me to unpack the parcel first and then give it to him.

Q 52. Tell me more about that?

A. That, that parcel, when I opened it, it had three pairs of shoes, two to three pieces of clothes, and some trousers, they’re all women’s garments.

Q 53. So why did he ask you to unpack that?

A. I don’t know, I don’t know. After I unpacked them he comes to my house to pick them up. I think that was around last month.

Q 54. And you didn’t question why he, you had to pick it up?

A. I, I, how to say, um, let me see, let me think, I, I did ask him why he asked me to take the parcel, he said he trusted me. He also said, if I took the parcel, he would, ah, pay, pay me dinner, buy me dinners.

Q 55. Okay. So tell me more about the conversation yesterday, for the package today, that you had with him?

A. Today, let me think. So last night, around 9.30pm, he came to my house, he asked me to come out. We got onto his car, we were talking. He said there is a parcel, he asked me to pick it up. And he said, I happen to only work for two hours today. And then he said, Ah, can you go to Burwood to pick up a delivery parcel for me, same as last time, just clothes, shoes, and trousers. He said, Ah, he couldn’t, Ah, get away to pick up the parcel, so I have to go, he said he will give me some money for it. Okay, because last time I lied to work, I said I had the flu, so I didn’t go to work, I actually, um, lied, because I actually didn’t want to pick up the parcel or didn’t want to go to work but this time, he knows that he owes me, so he offered me some money.

Q 56. How much?

A. He promised me to give him two days of wage, which is 750.00.

Q 57. $750 for some clothes?

A. Yeah. He gave me, um, in exchange for my wage, because I have to take time off work to pick up the parcel.

Q 58. Yeah. So how did you get the address?

A. He sent it through WeChat. Oh, the, there is no exact address on WeChat, so he wrote, Ah, the address on a piece of paper to me yesterday.

Q 59. Okay. What’s the, what was the address on that?

A. It’s the address from this morning.

Q 60. On XXXX Street?

A. Uh-huh.”

The offender’s counsel asked me to consider Q102. I begin at Q101:

“Q 101. So were you suspicious at all when your friend asked you to pick up this package?

A. Yes.

Q 102. Why?

A. Uh-huh. Yes, yes, because last time, last time, when he asked me to pick up the parcel, he was very relaxed. But this time, this time, I think he’s hiding a lot of things from me. For example, yesterday, he told me that he was going to work, but today, he said he was .. not going to work, because he didn’t feel well, but, but he called me very early to tell me everything. And then, what did I say just now, Mm, then, yeah, today, after a call, he said he .., was coming. I was feeling more strange about it. Because last time, when I took the parcel, I was by myself, and then I went home after, and then the address was actually where I lived, yeah, it was where I lived, M.....and this time, he told me he wrote the wrong address, that he wanted to write the address of Preston, and then I felt very strange, because, why would you write the wrong address when you want to send things.”

27. Counsel also asked me to consider QQ 129 and 130. I begin at Q 127.

“Q 127. You said you were being paid $750 for two days I’ve lost...

A. Ah-huh.

Q 128...wage?

A. Ah-huh.

Q 129. Why would someone pay $750, for two days, to pick up parcels?

A. Yeah. It’s not about taking the parcel, because I told him that I had to take time off work to help him. And also, last time, it was female clothing, which was very easy and relaxed, all I had to do is sit in the car and wait. Then he said he will compensate me the same amount of money I receive when I work on a construction site.

Q 130. That is very good money for picking up a package, would you agree?

A. Yeah. Because I guess, for, one time that he lied to me maybe he wanted to gain my trust, he asked me to unpack the first parcel.”

28. Reference to those responses in the ERISP was during submissions, when the Crown addressed conceding that the past delivery in which the offender participated was of limited if any significance. The Crown said there was a prior collection of packages or a package but the Crown was not able to say any more than that. The essence of the submission was that at best the past occasion impacted upon the assessment of the recklessness which is the fault element relevant to the charge upon which the offender is to be sentenced. There was not, as I understood the Crown submission, an instantaneous episode of recklessness, but his state of mind evolved from the first transaction up to a point prior to the offender’s participation in the transaction the subject of the charge.

29. It is within that limited context that the Crown submitted that this was not an isolated episode of collecting a package. The Crown conceded that the decision in R v JCW [2000] NSWCCA 209 was not engaged in this case.

30. Ms Lewer for the offender said the prior delivery was not related at all for the assessment of sentence because from the perspective of the offender the earlier event was an entirely innocuous circumstance. Hence her reference to answer 102 in the ERISP and questions 129 and 130. Her submission was in terms that the other person manipulated the offender into the conduct upon which he engaged leading to his prosecution.

31. The question is, when did recklessness crystallise in circumstances where there had been conduct intended to induce the offender into his participation and acquiescence in the commission of this offence?

32. I tend to the view that the submissions by Ms Lewer are correct upon the material that I have. It is difficult to decide precisely when the offender’s state of mind evolved to the point that it satisfied all elements of this charge, but it is conceded that it was prior to the offender’s embarkation upon the actus, which is entirely consistent with the communications to which I have referred, particularly those when he was sitting in the car outside the premises and the conversation in which he engaged with the undercover police officer.

The Offender

33. Before I come to further consider the submissions and assessment of objective seriousness I shall turn to the material tendered on behalf of the offender.

34. Ms Chant, who appears for the offender today, filed an affidavit in the proceedings affirmed on 5 October 2022. It was accompanied by annexure A which includes the offender’s custodial record and his movements from admission into custody of corrective services on 27 April 2021. He was moved from Surry Hills to the Metropolitan Remand and Reception Centre and then ultimately Parklea Correctional Centre.

35. The material includes assessment upon his admission performed by the staff of Justice Health; there is his Justice Health record of attendances thereafter. Ms Lewer graciously indicated that I need not proceed through the entirety of that material considering the careful structure of the affidavit affirmed by Ms Chant, a proposition with which the Crown did not cavil. The affidavit refers to the offender’s custodial movements, and his initial isolation on arrival in custody between 28 April 2021 and 12 Mary 2021. He tested positive for COVID-19 on 28 January 2022 and was subject to isolation as a close contact from 24 January 2022. On 1 February 2022 he was cleared from isolation.

36. On 23 September 2022 Parklea Correctional Centre produced documents under a subpoena identifying restrictions imposed by lockdowns and quarantines at the centre; this was reduced to particulars compiled in what is identified as annexure C. As I understand it the periods of restriction in the area 6D at Parklea, where the offender was held due to Covid-19 between 3 February 2022 and 29 August 2022, are set forth at para 19 of the affidavit; I have reviewed those.

37. The affidavit described the restrictions imposed by lockdown due to COVID‑19 at Parklea. The affidavit specifies his location at that centre in para 12. The offender kept a diary of his periods of lockdown; that has been reduced to annexure D.

38. When not the subject of restrictions, normal release time was 8.30am with lock-in each afternoon at 3.30pm. When subject to lockdown he could not leave his cell at all and could not work. The table prepared from the offender’s diary that he provided to Ms Chant is distilled to the proposition that he spent about 71 days with seven and a half hours per day in lockdown. This was about 35% of the time that he would have otherwise not been in lockdown were it not for COVID-19.

39. The affidavit refers to restrictions imposed by lockdown at the MRRC where he was held for a time. The occasions when that occurred are listed in the table.

40. The affidavit deals with the offender’s work history in custody. I have the primary document from which that was prepared. The logistics industries overseer from Parklea provided a letter addressed to the presiding judge informing that,

“The offender, as a 22 year old male of Chinese descent, was at material times an unsentenced inmate on remand at Parklea. He began employment in the kitchen business unit there on 22 February 2022. He underwent induction covering conditions of employment. He was given shoes and a locker and is said to have engaged extremely well. He acknowledged that he understood all instructions. He has demonstrated willingness to learn, he has quiet nature in social scenarios with his overseers, supervisors and colleagues. He has shown a consistent and diligent approach to work contributing to quality production in a time effective manner. He is polite and respectful of all colleagues and assists in all aspects within the business unit. He is considered a lead worker in the business unit for his continuous contribution and passion. His attendance rate is 100% with zero unexplained days off since commencing. He is always punctual. He was always awake and ready to work with his cell cleaned and bed made each morning. He is always willing to help newcomers to the business unit.”

41. A monthly review of behaviour within his accommodation unit has been provided with accommodation unit officers reporting that his qualities at work are in accordance with his behaviour in the unit.

42. He is described in conclusion as “hard working, dedicated and well mannered. Has great opportunities for growth. He has always done his best to improve himself during his time at Parklea completing various programs on offer.”

43. The offender did not give evidence and therefore I am left to assess the facts attributed to him in untested representations made to the psychologist who provided a report, Jason Borkowski. His report was written on 16 September 2022. I am conscious of the caution that is urged by such as Wilson J in Imbornone v R [2017] NSWCCA 144. However, the consistency between what is contained in the matters attributed to the offender in the report and what is contained in the ERISP and what is said of him by those responsible at Parklea in his work is such that I am confident I can accept at least upon the balance of probabilities the truth and accuracy of the facts to which these representations speak.

44. The psychologist had the agreed statement of facts, his custodial history, and the benefit of a one hour and 30-minute interview by audio video conference from Parklea Correctional Centre on 26 August 2022. There is nothing to indicate that the interview conducted by that medium was in any way compromised by that arrangement. At least since the COVID-19 epidemic it is common for this material to be assembled in that fashion for presentation in proceedings in this Court, entirely consistent with the practice that the Court now follows regularly receiving evidence by way of audio-visual link from remote locations without any negative impact upon the conduct of the proceedings.

45. The interview was conducted with the assistance of a Mandarin interpreter. The psychologist is confident that he was able to obtain an accurate overview and understanding of the offender’s background and current circumstances, which enabled him to form opinions and provide recommendations regarding his management and needs.

46. He presented well in the interview without evidence of perceptual disturbance or thought disorder. His mood was dysthymic but otherwise stable. His affect was responsive and there were no abnormalities noted. He was forthcoming with information pertaining to his background and his circumstances at the time of the offence.

47. His family history is discussed in some depth. He was born in Fujian Province in China, a rural area, raised by his paternal grandparents predominantly because his parents were frequently busy at work. He was involved with his parents when they were not working. He has one older biological sister, five years his senior.

48. He spoke of his father as quite interactive when they had the opportunity to spend time together. His father tried to provide moral and practical support. Their relationship was generally stable. His father was always employed in automobile sales and repairs. His father consumed alcohol regularly but not so as to impact upon his day-to-day functioning and responsibilities. There was no history of paternal illicit substance use or criminal history. He remained in contact with his father when he came to Australia but since his arrest his father’s anger has impacted upon the opportunity for contact.

49. His mother also worked long hours. She was often tired. It impacted upon her being able to provide adequate maternal care and nurturing. There was no maternal history of alcohol abuse or illicit substance abuse or any criminal history. As with his father he has lost contact with his other mother since his arrest on the current matter.

50. His parents often quarrelled. This was over financial matters but despite their disputes they remained together. His paternal grandparents provided him with stability, nurturing, guidance, and support through his formative years. They had no adverse history. His grandfather passed away during his childhood so that predominantly his grandmother raised him. She is alive and resides in China.

51. He has a distant relationship with his sister. They are not close. She moved to South Africa when he was 12. They did not develop a close sibling bond. He said he lived with his family until 17 years of age, then moved out of home into a rental property to work. He came to Australia at age 18 in 2018. He came here alone on a student visa intending to engage in additional studies, but due to his family’s inability to financially support his educational pursuits he could not pursue those goals.

52. He has mostly lived in shared rental accommodation. He had one noteworthy relationship which commenced when he was about 18 years of age of about two years duration. His partner was also Chinese. He was deeply committed to her but the relationship broke down for reasons of which he was unsure.

53. He does not have children. He considers himself socially stable. He maintained a small group of friends throughout his formative years spending time with that group in prosocial leisure pursuits. He developed friendships in Australia through the organisation which made his study arrangements. He maintained friendships with the peers within that group and has maintained contact with some of them. The friendship groups were not involved in any antisocial or criminal behaviour.

54. He has one female friend in Sydney as his primary prosocial support. He has no-one else. All primary and secondary schooling was in China. He was average academically but behaviourally well adjusted. He denied any bullying or other such experiences.

55. After completing school at age 17 he commenced working in the construction industry following on from studies he completed in his latter high school years. He remained in that type of employment once he came to Australia consistent with the facts and the content of the interview to which I have referred.

56. His work in construction in this country has been gyprocking, which he pursued because his parents could no longer support him financially. He denied any physical health concerns or serious injury other than for the COVID-19 with which he was infected in custody. He is currently in good health according to the report. There has been no engagement with mental health services or mental health practitioners. He has no prior diagnosis of any mental health conditions. There is no family history of mental health concerns. He did not use illicit substances. He consumed alcohol socially but in moderation. He has no history of problematic gambling. He has no prior criminal history here or in China.

57. He described the offence for which he is to be sentenced consistent with what I have read from the interview, including the request that he do the other person a favour, and payment of a sum equivalent to his daily wage. It occurred in the COVID-19 pandemic when work was less frequent and he was not earning a regular income, which motivated his decision to accept payment to collect the package. The money was to go to his general living costs.

58. The other person came from the area in China where the offender grew up. His father expressed concern to the offender about the offender’s involvement with the others on the construction site from that area but the offender ignored that advice. His perception was that they were reasonable people and he could see no reason why he should not be involved with them. Moreover, he had few contacts in Australia and the people he was involved with on the construction site tended to care for him.

59. He did not undertake any psychometric assessment. There was a risk assessment using the Level of Service Inventory-Revised (LSI-R); he is rated with a low risk of general offending. Based on the self-report and information available by way of the documents, he does not appear to be suffering from a mental health disorder or other psychological conditions, particularly at the time of the offence. It is noted that he reports symptoms consistent with depressed moods and stress, both of which are situational and the direct result of his current circumstances. The report suggests that the offender presents with several protective factors that portend positive rehabilitation prospects. I would agree with that observation.

60. The treatment plan such as it might include further educational vocational training and opportunities for employment, all of which would contribute to the reduction of any future risk of offending. His rise to those opportunities is consistent with what was contained in the report from Parklea about his employment there.

61. If he receives a sentence longer than he has currently experienced he might need psychological assessment to ensure his ability to cope with consequences from any penalties to be applied. He is suggested as suitable for minimal security settings; there are challenges because of his limited English comprehension skills, which might impact upon his reintegration support, and consequently appropriate arrangements would be required at that stage of his care.

Comparable Cases

62. The Crown provided me with an array of cases as examples from courts in New South Wales and interstate where offenders were dealt with for offences contrary to these provisions. I reviewed each of them and agree with the submissions made by Ms Lewer that these are cases of offenders with more serious misconduct and higher levels of objective seriousness than the matter that I have before me.

63. The decisions to which I have been taken are Tran v R [2017] VSCA 346 where the offender received instructions about collection and delivery of a consignment and provided updates to and sought updates from a co-offender and others about the progress of the consignment. The offender tasked another person to make enquiries about the progress of the consignment, accepted delivery at the delivery address, and then distributed the consignment on receipt. The offender was 56 years of age from an impoverished and deprived background with prior convictions for possessing heroin, of minimal importance. There was an early guilty plea and a major depressive disorder. The quantity of heroin was 2.6 times the commercial quantity. The sentence imposed was one of eight years with a non-parole period of five years.

64. In R v Boimah [2017] QCA 50, the offender was involved in an enterprise in which a Customs officer intercepted a parcel sent by a DHL Express from Hong Kong. The total weight was 25 kilograms, described as a plastic chair sample. It was found to contain methylamphetamine, the quantity of the pure drug within this importation was 791.9 grams, 1.056 times the commercial quantity. The offender, using a false name, contacted DHL and arranged for delivery to an address, which the AFP in due course attended where they were met by the offender’s wife. He came to the door, he said that he was not the person nominated but was able to collect on that person’s behalf. In the house, a false Belgian passport was in the name that had been used; he claimed that the false passport had come from a friend to be used by him to receive money transfers on the friend’s behalf. He said he took delivery of the parcel on behalf of a friend who had asked him to accept a parcel containing clothing or other items because that person did not have a permanent address. The co-offender was sentenced originally to a term of imprisonment of seven years for the charge contrary to these provisions; this offender was sentenced to eight years served concurrently with a sentence of three years imposed for the passport offence; a non-parole period of four years was specified. He was 29 years at the time, with no criminal history, had a wife and young child, and was motivated by profit. The Court dismissed his appeal; it was premeditated involvement in an undertaking to import a commercial quantity of methylamphetamine aggravated using a false passport.

65. In DPP v Foley [2019] VSCA 99, again for conduct contrary to the same provision, a sentence of seven years and six months with a non-parole period of five years was imposed. The quantity was 1.6 times the commercial quantity of methylenedioxymethamphetamine. The importation was to an address, the offender contacted the transport company purporting to be one of the names nominated and asked for the package to be redirected to another.

66. He attended a newsagency and produced a licence bearing the name of the person he purported to be. When arrested he had an ID bearing that name and his photograph. He was 36 years of age, a British national. There were glowing references and a good academic history and work history with prospects for rehabilitation. There was a history of substance abuse. He had symptoms of anxiety and depression. He was an active participant in prison courses; the Court held that the sentence was within the appropriate range.

67. Lay v R [2014] NSWCCA 310 for offending contrary to the same provisions involved an offender who was one of a number of co-offenders including his cousin. There was 3.2 times the commercial quantity of heroin. He met his cousin at his residence and removed 20 blocks of heroin from his cousin’s vehicle and put them into the boot of his car. He was then stopped by police and arrested. He intended to sell the heroin at Star Casino and was to pay his cousin $3.2 million when it was sold. He was 61 years of age. He had a gambling debt of $300,000 that he was hoping to discharge. He was sentenced to 13 years imprisonment with a non-parole period of eight years and six months with a discount of 25% for his plea of guilty.

68. In R v Karan [2013] NSWCCA 53 3.7 kilograms of cocaine came to Australia in a consignment containing a knife block. This was 1.59 times the commercial quantity of the drug in its pure form. The offender received or was to receive $5,000 for his role. He was 27, with a history of drug and alcohol abuse. This was not an impulsive offence. There was much planning and organisation. His co-operation upon which he relied heavily was limited to presenting himself at the police station to be arrested and charged. His whereabouts were already known to the police through surveillance. The offender had been recruited by a co-offender to assist in the collection of the consignment once it was imported. The offender recruited another to be the consignee of the importation. The consignment was addressed to that other person at her mother’s address. The offender drove that other person to the transportation company where they both enquired about the consignment. The other person produced the airway bill. The offender loaded the consignment into his car and was later arrested. A sentence of three years and nine months with a non-parole period of two years and six months incorporating a 25% discount for the plea and cooperation was increased to six years with a non-parole period of four years. A discount of 25% was held to be manifestly excessive; the Court said it should have been limited to no more than 15%.

69. In Hoang v The Queen [2018] VSCA 86 the offender was charged in respect of two consignments of cocaine which he attempted to possess. The offence involved the shipping of printer toner cartridges. The offender was detected speaking to a contact in Vietnam about the first consignment. He was given instructions. He was also charged in relation to two separate packages of cocaine located in his car. The first quantity was 1.68 times the commercial quantity for the drug. The second was 2.6 kilograms, a somewhat smaller quantity. He was a young man, aged 20. He came to Australia at 18 years of age with good prospects of rehabilitation financially dependent on his family. His appeal was dismissed. The term of sentence imposed ultimately was ten years with a non-parole period of six years. The sentence being individually of nine years with a non-parole period of five years and eight years with a non-parole period of five years.

70. There are comparisons available for most of these cases but predominantly the offending there discussed in my assessment was more serious than that with which I am concerned here.

71. The submissions made on behalf of the offender invited attention to a decision of this Court by Abadee DCJ delivered on 12 July this year the matter of R v Miguel David [12 July 2022] NSWDC unreported, I do not have a neutral citation for it. There was an attempt to possess a commercial quantity of heroin and possession of identity documents. This concerned 1.62 kilograms of pure heroin which the offender sought to collect at the post office. He collected it using false identification. There were three false identifications used on three separate occasions. There was reduced moral culpability due to mental health, drug addiction and prior criminal history for possession and supply. The sentence imposed by his Honour was three years and five months with a non-parole period of one year and 16 days. There was a 30% discount for the plea and considering COVID-19 conditions.

72. The misconduct in that case was greater than what I am concerned with here but the subjective case seems to be of greater significance in contrast to what I know of this offender. In any event this is a judgement of this Court put before me as one that has greater similarities than those offered by the Crown, a proposition with which I must agree, but I do not see myself as bound to follow the decision reached in that case upon my assessment of what must occur here.

Submissions

73. The submissions on behalf of the offender, well-crafted I might say, remind me of the offence, the penalties, and bring to mind the matters that I should bring to account when assessing the objective seriousness.

74. They are the quantity of drug, 1.53 kilograms of pure heroin against 1.5 as the base line for commercial quantity of that drug. There is no upper limit. It is put that this barely crosses the threshold for the commercial amount and that it falls within the very bottom of that range. I would not cavil with that proposition.

75. The Crown concedes in its submissions that this is at the lowest end of the commercial quantity. The Crown has accepted that the offender was not actually aware of the quantity of drugs he was attempting to possess. This reduces the objective seriousness.

76. The offending was on one occasion. The duration was limited to two days. His state of mind was recklessness as to whether the package he attempted to possess contained border-controlled drugs. The nature of the possession and its purpose was receipt by the offender to be passed on to the person for whom he was doing this so-called favour. That was his role. He was of low rank in the enterprise. He did not receive any financial gain or profit though that was the purpose of him being involved in this. The methodology was rudimentary, not sophisticated, but it did involve a limited measure of planning but not beyond that which was necessary to attempt to receive these drugs. There was an attempt and no drugs were ultimately possessed but I bring this to account to a limited extent attributing to it limited weight. But for the interdiction by the police that the drugs would have found their way into the community. The motivation of his offending was his economic need and limited opportunity for work by reason of the COVID-19 pandemic.

77. I accept that this is toward the low end of the range of objective seriousness of misconduct.

78. His character, antecedents, age, needs and physical or mental cognition must be brought to account and I have done so, drawing upon what Mr Borkowski wrote, including his history. There is nothing in his background that has contributed to his misconduct. His parents and his grandparents it would appear have provided appropriate care and nurturing and financial support to the extent that they were able to do so throughout his formative years.

73. He is to be seen as a person of good character in the absence of any prior episode to misconduct. He can rely upon his youth. He was 21 at the time of the offence. This is a matter that must be brought to account in consideration to what is the appropriate sentence. I am reminded of authorities speaking to that issue, particularly the judgement of Hodgson JA in BP v R [2010] NSWCCA 159 at paras [3] to [6].

74. I accept that general deterrence and retribution may have less significance in sentencing this offender in contrast to what would be required for an older offender, subject to what I said earlier about the Court having an obligation to make sure that it is understood generally that even at this low level of participation facilitating those further up in the organisation will result in appropriate punishment.

75. I accept that he has good strong prospects of rehabilitation. Indeed, upon the material I have his progress towards rehabilitation seems to be well underway. I accept that he has demonstrated contrition in his response to the apprehension and investigation.

76. I have brought to account the challenging circumstances in custody by reason of the COVID pandemic and that he has a greater challenge because English is not his first language and has limited support in our community. Of course, he has demonstrated according to the material provided from his employment within Parklea the capacity to interact and work in conjunction with and co-operatively with his colleagues and those responsible for his supervision.

77. I have considered his plea of guilty both in terms of the utility it provides and that he has demonstrated contrition and willingness to facilitate the course of justice. I have also considered that he was co-operative with law enforcement in the investigation of the offence.

78. I am reminded that the co-offender is due for trial in 2023 and the question of parity does not arise.

79. The Crown submissions provide me with a discussion of the general principles relevant to sentencing for Commonwealth offences, the role of the maximum penalty plays and the task of a Court to determine the degree for which the offender has contravened the legislative objectives relating to the offence. I am reminded of what was said by Johnson J in Nguyen v Pham [2010] 205 A Crim R 106 at [72] with regard to sentencing for serious federal drug offences of importation.

80. I have considered the offender’s involvement and the steps he took in his criminality. His role, as I have accepted, is at the lower end of the scale of objective seriousness. He was acting at the behest of another for a modest return. I considered the weight of the drug. The importation clearly was for profit, although that which was to be returned to this offender was of a very modest proportion in the context of lost income arising from his agreement to be there to collect the parcel.

81. I have had regard to Johnson J said in his analysis of what the Crown must bring to account when imposing sentences in such a case. I have considered the nature and circumstances of the offence and the role of the offender. The Crown submits that the offender’s role included his accepting the task of taking delivery during the exchange of texts with the person Min. He attended on the day of the controlled delivery. He made representations to the undercover operative that his address had changed and he was waiting for the package. He represented himself to be the person Da Lin. He signed for the consignment and he exchanged the text with Min between 24 and 26 April to which I earlier referred.

82. The Crown accepts that he was reckless, not knowledgeable, in relation to the consignment containing a border-controlled drug. The Crown accepts that the role was to accept delivery, which exposed him to the attention of law enforcement authorities consistent with him being of low rank in this enterprise. He was trusted with the collection of the importation and physical possession of it but not with money that might have related to the transaction.

83. I have considered the nature and the quantity of the drug to be imported. The Crown concedes that it cannot prove that he was aware of the nature of the drug that he was collecting. The Crown submits that the two days’ pay was a windfall to the offender for a task of very short duration. He accepted the risk attaching to the activity in return for the higher than usual wages payment.

84. I am reminded of what the law specifies in relation to the guilty plea. I am reminded of the need to bring to account prospects for rehabilitation which the Crown acknowledges but submits should not be allowed to elevate above other and beyond the need for general deterrence and denunciation. I agree with that submission. There must be appropriate weight for general deterrence and there must be adequate punishment for his conduct. I have brought to account his character, age and antecedents and background.

85. There is an interesting discussion in the Crown submission regarding the relevance of the prospect of deportation. The Crown reminds me that the traditional view has been that it is irrelevant to the assessment of sentence in proceedings such as this. However, there has been a move away from that position in Victoria, Queensland and in the ACT Supreme Court where it has been considered that the expectation of deportation upon completion of a sentence might increase the burden of imprisonment upon an offender, since the deportation consequent upon sentence that results in the loss of opportunity to settle in Australia might constitute extra-judicial punishment. The precise boundaries of these principles remain unsettled.

86. Nothing has been said on behalf of the offender regarding this. In my assessment of the matter I must follow what I understand to be the settled principle that I should put aside the prospect of deportation which may or may not crystalise at the end of the custodial component of the sentence.

87. The Crown reminds me of what was said in Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520 regarding consistency in federal sentencing. In supplementary submissions, the Crown addressed the question of this as an isolated act of offending, to which I earlier referred, and acknowledged that the decision in R v JCW [2000] NSWCCA 209 particularly to para [3] has no work to do in this case. The Crown in its further submissions reminded me of the concept of recklessness and what are the elements for the offence to which the offender pleaded guilty. The Crown concedes it does not assert that the offender knew that the substance in the consignment were drugs but was reckless as to the consignment being of drugs. The Crown referred to Postiglione v The Queen [1997] HCA 26.

The Sentence

94. Thus I come to the task of imposing sentence in this case. Before I took that step, I invited the parties to bring to my attention any corrections to what I had said. Neither wished to do so.

95. The offender is convicted of the offence of attempting to possess a commercial quantity of the unlawfully imported border control substance, heroin. I have applied a discount of 25% to the sentence that would have otherwise been imposed. I have settled upon a sentence of 5 years and 3 months commencing on 26 April 2021. I specify that the sentence shall be one of a non-parole period of 3 years from 26 April 2021 to expire on 25 April 2024 after which he shall be subject to a further period of imprisonment of 2 years and 3 months that shall expire on 25 July 2026.

96. I explained the sentence to the offender with the assistance of the interpreter.

97. Exhibits to remain on file.

98. No further orders were sought.

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Decision last updated: 30 January 2023