R v Leung

[2024] NSWDC 671

District Court

New South Wales

Medium Neutral Citation:

R v Leung [2024] NSWDC 671

Hearing dates:

12 December 2024

Date of orders:

12 December 2024

Decision date:

12 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [84]-[91].

Catchwords:

CRIME – SENTENCE - Attempt import commercial quantity of border controlled drug - N,N-Dimethylamphetamine – Offender on tourist visa – Impact of language and cultural differences on whether incarceration onerous.

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A(2), 16BA.

Criminal Code Act 1995 (Cth), ss 11.1, 305.3(1), 307.1(1).

Cases Cited:

DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22.

R v Agboti [2014] QCA 280.

R v Cheung; R v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398.

R v Ferrer-Esis (1991) 55 A Crim R 231 at 239.

Wong v R [2018] NSWCCA 263.

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (Cth)
Offender – Ka Ho Leung

Representation:

Counsel:
Crown – Mr Gordan, D.K.
Offender – Mr Terracini, A.

Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth).
Offender – Andrews Solicitors.

File Number(s):

2023/00190517

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Ka Ho Leung stands for sentence as a consequence of pleading guilty to two offences against the law of the Commonwealth. The first offence is one contrary to ss 11.1 and 307.1(1) of the Criminal Code Act 1995 (Cth). The offence may be shortly described as attempting to import a commercial quantity of a border controlled drug.

2. The drug in question is known as N,N-Dimethylamphetamine. The commercial quantity of that drug is 750 grams. The amount which he sought to import was 1,119 grams or 1.49 times the prescribed quantity of a commercial quantity of that drug. That offence carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units.

3. The second substantive offence which the offender asks me to sentence him is one contrary to s 305.3(1) of the Criminal Code Act 1995 (Cth). The offence may shortly be described as manufacturing a commercial quantity of a controlled drug. The drug in question was again, N,N-Dimethylamphetamine. The amount of that drug was 1.144 kilograms, which is again 1.5 times of the amount of the prescribed commercial amount, namely 750 grams. The maximum penalty for that offence is also imprisonment for life.

4. On a schedule, pursuant to s 16BA of the Crimes Act 1914 (Cth), the offender asks me to take into account, when sentencing him for the last offence, an offence of importing a commercial quantity of a border controlled drug. That is the amount of the drug that was used to carry out the manufacture of the commercial quantity of the drug. The maximum penalty for the offence contained on the schedule is, again, imprisonment for life and/or a fine of 7,500 penalty units.

Agreed Facts

5. There is a set of agreed facts. The drugs with which the offender was dealing were, as I said, N,N-Dimethylamphetamine (DMA). That drug can be shortly described as either N,N‑DMA or DMA. I understand it to be a weaker central nervous stimulant than methylamphetamine, which is commonly known as ice. That drug has two main forms: a freebase which is an oily liquid and a crystalline solid or powder which can be called salt. The manufacture of a quantity of a controlled drug includes its refining. In essence the offender, as far as the second substantive charge is concerned, was refining the oily liquid into a salt, refining it for sale in the drug market.

6. On 28 April 2023, the offender arrived in Sydney on a tourist visa from Hong Kong, accompanied by an older man known as Kam Wah Chu. At the time that the offender and Chu arrived in Australia, Chu was 64 years old. The offender, when he arrived in Australia, was 22 years old.

7. On 11 May 2023, a consignment containing men’s vests arrived in Australia from Bangladesh. On the following day, 12 May 2023, the consignment was delivered to “Andy Leung” at Unit 306/23 Prospect Road in Summer Hill.

8. On 17 May 2023, a second consignment containing men’s vests addressed to “Andy Leung” at the Summer Hill premises arrived in Australia from Bangladesh. The second consignment was intercepted by Australian Border Force officers and was not delivered. The consignment was found to contain 1,119 grams of DMA and that is the subject of the first substantive offence, to which the offender has pleaded guilty.

9. On 14 June 2023, New South Wales Police executed a search warrant at the Summer Hill premises and arrested the offender. During the execution of the search warrant, police located a clandestine drug laboratory, liquid DMA and solid DMA and equipment consistent with the manufacture by refinement of DMA. That is the subject of the second substantive offence to which the offender has pleaded guilty.

10. The DMA seized by the police at the Summer Hill premises was imported in the first consignment which arrived at the Summer Hill premises on 12 May 2023. At the time of the execution of the search warrant, police found two telephones, a black iPhone and a white iPhone. Police considered that those telephones had been used by the offender during the commission of the offences, for which he stands for sentence.

11. When the offender arrived in Australia, CCTV footage at Sydney airport filmed the offender and an older male, identified as Kam Wah Chu, as they arrived. The footage included the offender and Chu attending a kiosk selling SIM cards at the airport between 9.28pm and 9.38pm on that day. A SIM card was purchased to set up a mobile phone number ending in 846. The phone number is subscribed in the offender’s name but gives his address as 70 Kingsley Street, Byron Bay and was connected to the telephone service at Sydney airport at 9.37 that evening.

12. On 11 May 2023, the first consignment arrived in Australia. The details contained on the paperwork, referable to the consignment, gave the name of a person, presumably from Bangladesh, and gave an address of “Eill:Khajurbaria, Post Paruli, Satkhira Internatinal NSW 9999”. It is common ground that Khajurbaria and Satkhira are a village and a district in Bangladesh respectively. The consignee’s name is, as I said, Andy Leung and gave his address as Summer Hill and gave his phone number ending in 846. The description of the contents of the consignment was 8.1 kilograms of men’s vests. The parcel was delivered to the offender by Fed Express on 12 May 2023. It was delivered at 12.58pm and was signed for by “Andy.” The CCTV footage at the premises in Summer Hill depicted the offender entering the entrance and lift to the apartment block and subsequently entering an apartment carrying a box. At 3.32pm the black iPhone was used to video the parcel being opened at the Summer Hill premises.

13. A video taken on that day at 3.32pm depicts the offender unpacking the Fedex box containing eight multi-coloured vests and a box labelled “Empty box.” The offender deconstructed the vests to obtain the drug DMA which was concealed inside the vests. It would appear, therefore, that the offender knew before unpacking the box that it contained materials in which the drug had been concealed. A video taken at 4.43pm on that day depicts a piece of material with the crystalline substance. In the background, a pot containing a liquid, a vest from the consignment, and a piece of padding from the vest can be seen. It would, accordingly, appear that the offender knew that embedded in the vests was a drug from which a liquid could be obtained which went on to be refined to make crystalline DMA. It would appear, therefore, from the very beginning that the offender probably knew there were illegal or illicit drugs in the package which he had taken delivery of earlier on that day, 12 May 2023.

14. The agreed facts tell me that the offender went on to manufacture at the Summer Hill premises, not less than 1,144.43 grams of DMA. Agreed fact 16 tells me that there were 546.43 grams of the drug in its solid state and 598 grams in its liquid state. That was the amount of drugs that was seized by the police at the execution of the search warrant.

15. The second consignment was, as I said, intercepted by the Australian Border Force on 17 May 2023. The details of the consignor are more clear on that packaging. The consignor was said to be “N D Elias Hossen”. The village was described as Khajurbaria and the district was described as Satkhira and a postcode is given for Bangladesh. The details of the consignor are much clearer and are not, for example, adulterated by referring to NSW.

16. Again, the second consignment was addressed to the offender, containing his name, the Summer Hill address and the telephone number as given in the first consignment. The Australian Border Force officers located eight colourful vests inside the package which, upon x-ray, revealed abnormalities. The fabric of the chest piece of each vest appear to be thick. The Border Force officers made a small incision in the stitching of one of the vests which revealed a white powder. Preliminary testing of the substance returned a positive presumption for DMA. Testing with a narcotic identification kit returned a positive presumptive result for methamphetamine.

17. The second consignment was then provided by the Australian Border Force to the New South Wales Police Force which conveyed the vests to the forensic laboratories here in greater Sydney for analysis.

18. A table is set out in the agreed facts at paragraph 25 listing the vests numerically, giving the mass weight of the vests and the weight of pure DMA in each vest. Only five of the eight vests were tested. For example, in the first vest the mass weight was 799 grams but the weight of pure DMA contained therein was 217 grams. A further four vests were tested and gave a similar result. The purity of the substance in the five tested vests was equivalent to 1,119 grams of the prohibited drug. Or, as I said earlier, 1.49 times the commercial quantity of that prohibited drug.

19. The offender had tracked and attempted to obtain updates from Fedex on the delivery of the second consignment. On 14 May 2023, the white iPhone received the following text message:

“Hi ANDY LEUNG, Fedex shipment [number] is planned for delivery by 18/05. Managed delivery at [internet address].”

20. A photograph dated 23 May 2023 found on the black iPhone depicts a phone screen displaying the Fedex website and the tracking number and mobile phone number listed on consignment 2. The screenshot depicted the following error message:

“Too many requests have been made for this shipment.”

21. The screenshot went on to ask the user to contact “customer services.”

22. On 14 June 2023, as I have already said, the police executed a search warrant at the Summer Hill address. The only person at the residence at the time was the offender who correctly identified himself as Ka Ho Leung. When asked if he was the only person residing at the residence, the offender responded:

“There was a gentleman who left a couple of days ago.”

23. I do not know whether he said that in English or Cantonese, but if he said it in English his usage of the language was good. Australian Border Force records confirm that Kam Wah Chu departed from Australia on 9 June 2023, four days before the execution of the search warrant.

24. Following the arrest of the offender, the police observed a number of items consistent with manufacture of an illicit drug in the kitchen and contacted the chemical operations team to conduct an analysis of the scene. Amongst other things the police found 9.3 grams of DMA, a black container containing 1,233 grams of DMA, 835 grams of solid DMA, a black Apple iPhone and a white Apple iPhone, various SIM cards and receipts.

25. The police seized all the drug which had been imported in consignment one, and subsequently manufactured by the offender and, one assumes, also by Chu at the Summer Hill premises between 12 May 2023 and 14 June 2023, shortly before the execution of the search warrant.

26. The agreed facts contained in paragraph 39, more than one page of a table describing items that were thought to be involved in the manufacture or refinement, the DMA, and the weight and analysis of the drugs or other items found. The items contaminated with drugs included: a plastic container approximately 95% full, a net or mug containing a number of spoons with a quantity of off‑white crystalline residue and a small volume of brown liquid, a Tefal brand portable electric hotplate, a metal stockpot, a second metal stockpot containing pieces of cut white fabric, and a cut plastic bottle labelled “Glendale methylated spirits, 500ml,” this appears to have been used as a funnel. There were other bottles of methylated spirits and acetone, and isopropyl alcohol, which clearly had been used in the refining process.

27. There was also an unsealed cardboard box, which was labelled to indicate the contained filter papers, which were probably used in filtering the drug when it was in its liquid form. Also found were a metal sieve and a white metal bowl, each of which had traces of a solid crystalised substance, which was the drug DMA, and three metal trays and metal grids which fitted inside the trays and appear from the photographs before me to have been used to make the crystallised DMA into cubes about the size of an ordinary ice cube. There were a number of other trays involved and an electric fan which, when swabbed, contained traces of the drug DMA.

28. The authorities investigated the offender’s black iPhone. It contained copies of personal documents, including a picture of the offender’s passport and what I described as “selfie‑style pictures of the offender.” Many of the photo and video files contained metadata indicating the location that the photos were made, and videos were taken, giving as their geographical position, the vicinity of the premises at Summer Hill. I have already adverted to the video taken on 12 May 2023 showing the offender unpacking the FedEx box of the first consignment and also the video showing the attempt to extract drug from the vests.

29. The agreed facts continue with observing that dozens of images and videos taken between 4.43pm on 12 May 2023 until 2.01pm on 11 June 2023 depict the manufacture process at the Summer Hill premises, including the use of pots to “cook” clear liquid, pots of clear liquids boiling, pots of brown liquids boiling, containers of brown solid substances, solid pots of brown gel‑like substance, and the removal of crystal‑like substances from small, white containers. In two of the videos, the offender’s feet can be seen. In five videos, taken between 2 and 3 June 2023, an older individual, whose face is not shown, is seen to be lighting a piece of foil crystal substance, which liquefies and holding up the substance to the camera. That presumably was the gentlemen known by the surname Chu.

30. The offender’s fingerprints were also taken. An analysis of six photographs on the black iPhone identified the offender’s fingerprints in three of the photos. One was a photo of the offender holding a small container containing white crystalised substance taken on 17 May 2023.

31. The final agreed fact is that during the execution of the search warrant, police seized receipts that detailed a purchase of various solvents, including methylated spirits in quantities between 1 litre and 2.5 litres, and 1 litre acetone Diggers cleaning solution ordered at Bunnings and/or Healthmore Pharmacy. Police subsequently obtained CCTV footage from those stores that depict the offender, often wearing sunglasses, purchasing the solvents on eight occasions between 6 May 2023 and 8 June 2023. It is important to note that the solvents were first purchased on 6 May 2023, long before the delivery of the first consignment on 12 May 2023.

32. The offender has no criminal record in this state. There is nothing unusual in that because the evidence is that the only time the offender came to Australia was when he arrived here on 28 April 2023. Since the execution of the search warrant the offender has been in custody.

Purpose in Australia

33. One of the issues that has been largely debated during the sentencing hearing is why the offender came to Australia. The offender was interviewed by a psychologist, Ms Susan Homeh Hawil on 28 November this year and she prepared a report dated 9 December 2024. That may be found in Exhibit 1, item 2. Paragraphs [5] to [9] of her report are these:

“(5) When spoken to in relation to his offending behaviour, Mr Leung admitted his offending and indicated the agreed statements of facts is a relatively accurate summary of his offending. He reported he had incurred a gambling debt of between fiffty and sixty thousand Hong Kong dollars at the time of the offending. Additionally he needed a loan of between two hundred and three hundred thousand Hong Kong dollars for his mother’s medical treatment for a growth on her neck. He recalled that she had been on a waiting list to get into a Government hospital and needed the money to go into a private hospital.

(6) Mr Leung indicated that he asked a friend for a loan for his mother’s treatment and the friend told him, another person was looking for someone to travel from Hong Kong to Australia to look after an elderly person. He was told the elderly person needs care, does not know how to use a mobile phone or understand English. The arrangement would be Mr Leung would live with the elderly person and Mr Leung agreed.

(7) Mr Leung reported arriving in Australia on 28 April 2023 on a holiday visa and beginning to help the elderly man. He recalled going grocery shopping and purchasing distilled water and other things the elderly man needed. Mr Leung indicated that five days prior to the offending, The elderly man left but told him to stay behind at the house. Mr Leung indicated that he’d stay at the house for three weeks as he did not have sufficient funds to travel back to Hong Kong, but did not have anywhere to go, nor did he have any friends in Australia. Mr Leung admitted he continued to engage in the offending behaviour. He further stated that he believes the elderly male left the home after he had an argument with Mr Leung’s boss.

(8) Mr Leung indicated that during the period of offending, he was drinking alcohol and smoking cannabis and believed he was under the influence of both substances. Mr Leung was candid in indicating that when he was younger, had he not gotten involved in the use of cocaine, he would be in a different situation.

(9) With respect to his feelings regarding the offending, Mr Leung expressed his guilt and remorse, stating:

“I absolutely regret. I am full of regret. I now think life is full of traps and danger. I will do what I can in terms of studying and getting certificates and keeping good behaviours. I hope to go home and join my family”.”

34. It would appear from what is there said that the “elderly person”, a male who the offender was to “care for”, was in fact Mr Chu. One can accept that a 22‑year‑old might call a 63 year old “an elderly person”. However, Mr Chu did not leave Australia until 9 June 2023, some four days before the execution of the search warrant.

35. If the reference to the fact that in the history given to the psychologist, “Mr Leung stayed at the house for three weeks as he did not have sufficient funds to travel back to Hong Kong, did not have anywhere to go, nor did he have friends in Australia” should only be a reference to some three or four days.

36. It is in my view noteworthy that none of the photographs contained on the mobile phone or any of the videos contained on the mobile phone have any photographs taken or film exposed after Chu left the property at Summer Hill. It would be extremely odd for anybody to take such incriminating photographic evidence of their involvement in refining illicit drugs unless there was some specific purpose for it.

37. The specific purpose could only be to record what needed to be done, to refine the drug, assuming that the person teaching somebody how to refine the drug was going to leave. This strongly suggests to me, that the photographs and videos were recorded, so that the offender could repeat the process of refining the drug after it had been shown to him by an experienced “cook.” Assuming that Mr Chu was the experienced “cook,” then one could understand the offender recording the process, so that if he were required to do it in the future, he would know how to do it successfully.

34. The final sentence in paragraph [7] of the psychologist’s report also raises another issue. At first, I thought it might be best read as being “he further stated that he believes the elderly now left the home after he had an argument with [his] i.e. [Mr Chu’s] boss”, was that it may well be an acknowledgement that both the offender and Chu were under the same boss. Mr Crown suggested that it might be the first friend identified in paragraph [6], which I quoted, the friend who Mr Leung asked for a loan. However, that in my view, would not make Mr Leung an employee of Mr Chu nor would it make the friend who Mr Leung asked for a loan, an employee of the first friend.

35. What was attributed by the psychologist to Mr Leung in paragraph [9], is certainly an acknowledgment of regret, but whether it means that, or whether that the statement that, “life is full of traps and danger” means the danger of being misled by the friend in Hong Kong or Mr Chu or both, or whether it means the fact that becoming involved in the drug, “cooking” was liable to be discovered by those in authority leading to his being arrested and imprisoned, is a matter of some conjecture.

36. The Crown, of course, submits that that history or similar history is implausible, and that the only real reason that the offender came to Australia was to be involved in the drug scene, perhaps in that way to pay off his indebtedness, or whether the offender was misled by the friend he asked for a loan, and in essence, “set up” by that friend is quite unclear.

37. Of course, there is no evidence that could persuade me beyond reasonable doubt that the offender did come to Australia solely for the purpose of becoming involved in the drug trade. Equally, the evidence does not persuade me on the balance of probabilities, that the offender was duped in the way alleged, because it all does not fit together.

38. There is no suggestion of Mr Chu having any disability or any need for assistance, and that would have been abundantly clear to him after Chu and the offender travelled from Hong Kong to Sydney by airplane and then, of the two, in essence, living together between the offender’s arriving in Australia with Chu on 28 April 2023 until 9 June 2023, a period well over 30 days.

39. However, it appears to me, and I accept that the offender had not been involved in this activity, that is of refining any drug until he was taught to do so by Mr Chu. Why Mr Chu left Australia is unclear, but it may be that he became concerned for his safety when the second consignment was not delivered and decided that it might be safer for him to return to China before the police came knocking at the door.

40. For the purpose of the current proceedings, I am unable to make a finding either way as to in what circumstances the offender came to Australia other than to say he came with Mr Chu on a visitor’s visa. If he were coming to Australia to care for Mr Chu, one would think that he would need a better visa than a visitor’s visa because a visitor’s visa does not allow him to work and on what he says he was coming here to work for the male who can only be Mr Chu.

Personal Circumstances

45. I turn then to consider the personal circumstances of Mr Leung. The offender is one of two children. He has one brother who appears to be aged 22. He has a half-brother who is aged 50. The offender’s younger brother lives in Hong Kong with their parents. The offender’s half-brother was only involved in his life when the offender was aged between four and seven years. The offender’s younger brother has autism, Attention Deficit Hyperactivity Disorder (ADHD) and specific learning difficulties. There is an official record from the government of Hong Kong bearing a date 17 July 2024 which records that the records of that special economic zone confirm that the younger brother has Attention Deficit Hyperactivity Disorder, autism and specific learning difficulties.

46. A letter from the offender’s mother bearing a date 16 October 2024 says this about the offender’s brother:

“Our other son, 22 years of age, who suffers learning difficulties, autism, ADHD and lack of concentration. He has been negatively impacted by the arrest of his brother.”

47. The letter goes on to express her concern because of the absence of the offender to care for both his father, his mother and his younger brother “who needs special attention”.

48. The psychologist reported that the offender’s mother is currently aged 57 and is in receipt of a government pension. The offender’s father is aged 72 and is also in receipt of a government pension. The report continues thus:

“Mr Leung reported he was born in Hong Kong and raised by his parents. He recalled his father was a relatively [successful] business owner, owning two businesses before the financial crisis. As a result of the financial crisis, his father lost his businesses, resulting in losing their home and money. They were forced to rent an old house and lived a relatively impoverished life, getting support from family and friends. Mr Leung indicated his father then experienced psychotic episodes and depression and this impacted the family as he wasn’t able to work. It was noted that Mr Leung became visibly distressed when talking about his family and their difficulties.”

49. In evidence, there is a letter from a polyclinic in Hong Kong which refers to the offender’s father as having “psychotic depression, DM, HT, hypolipidemia and hypothyroidism”.

50. I assume DM means diabetes mellitus and HT means hypertension. That, a man aged 72, should have problems with lipids is not unusual, although hypothyroid is certainly not usual. The important thing of course, is to note the diagnosis of a psychotic disorder.

51. One of the reasons that is given for the offender’s coming to Australia was to make money in order to pay off debts. I have been told from the Bar table that he has agreed that at the current time, one Australian dollar buys five Hong Kong dollars based on the information contained in paragraph [5] of the psychologist report which I have already quoted. The offender owes and needs to pay for his mother’s surgery between $50,000 Australian dollars and $70,000 Australian dollars. Those are relatively large sums of money.

52. Annexed to the offender’s mother’s letter is a record from the Kwong Wah Hospital at 25 Waterloo Road, Kowloon which describes the offender’s mother’s neck mass. I will not quote the document verbatim, but it appears to me that the growth is benign and has no specific effect on the neck or specific anatomic structures in it; the thyroid gland in particular and the pharynx, but one can understand the need for the excision of the mass.

53. In her letter, the offender’s mother asked for a “lenient sentence for my son”. The second paragraph of the letter is:

“My son, Leung Ka Ho has vowed to his parents that he will never repeat the actions. As parents, we blamed ourselves [for] not having properly educated our son. He came to Australia to work in order to pay off the debts. He did not want to add a burden to his family. No one could expect he would be misled into wrong doing. Both my husband...and I suffered depression and we both need to see psychiatrist. We are feeble and weak. I have [a] nodular tumour and my husband is at the old age of 72 and has diabetes.”

She then refers to the condition of the offender’s younger brother.

54. The offender’s mother’s letter continues thus:

“We are deeply concerned that if my son...is imprisonment, he will not be able to care for his sick parents and his brother who needs special attention. [He] sincerely regrets his action and vows never to repeat them.”

The final sentence of the letter repeats the request for leniency.

55. I continue to consider the offender’s personal circumstances. The report of the psychologist continues with this matter:

“14. Mr Leung indicated he completed the equivalent of kindergarten to year 8 studies in Hong Kong and was initially a talented student. He recalled in year 4, he suffered an injury to his leg. He stated that he and his father had gone on a bike ride during which he lost control of his bicycle and fell. He noted a metal break caused a large injury to his thigh resulting in him being hospitalised for three months. After discharge, the wound became infected, and he had periods of medical attention resulting in a total of eight months of missed schooling. He recalled when he did return to school, he was forced to repeat a year and in year 8, he left school.

15. Mr Leung indicated that he was an academically average student who was generally well-behaved. Mr Leung indicated he made friends easily and then in year 8, he started smoking with his friends. He reported that he was not attending school nor working, he often borrowed money from his friends to socialise, gamble and purchase food. With regard to employment, Mr Leung indicated that he has worked as a concreter in construction sites in Hong Kong for three years and one year in hospitality.”

56. The psychologist then turned to the alcohol and drug use and gambling problems of the offender. She said this:

“16. Mr Leung indicated that he used to be a social drinker, but over the last four years, he has consumed alcohol three times a week, drinking approximately 750 mils of brandy or whisky each time, which he attributed to feeling overwhelmed as a result of family arguments, work‑related issues and financial stressors.

17. Mr Leung indicated he began smoking cannabis when aged 20 years, smoking 1 gram each day and continued until he was arrested. He reported drinking alcohol and smoking cannabis helped alleviate his chronic back pain, and now on remand, his back pain has increased.

18. Mr Leung indicated two years after he finished school he began using cocaine for one year and stopped. He recalled using the drug daily depending on his finances and often would borrow money or steal from his parents to fund his cocaine use. He recalled that, at times, he would experience visual and auditory hallucinations when under the influence of the drug.

19. Mr Leung indicated he began gambling when he finished school in year 8. He would gamble “on and off” with friends, gambling on card games together. He recalled he could gamble approximately 2 to 3,000 Hong Kong dollars and often borrowed money from friends to gamble. He admitted he was in debt between 50 and 60,000 Hong Kong dollars, which is approximately ten to 12,000 Australian dollars.”

57. Of concern for the offender is his separation from his family. The psychologist recorded this:

“Mr Leung indicated he does not have family or friends in Australia. Separation from his family has particularly been stressing for him; he finds it difficult to sleep, and the more he thinks about his situation the more he gets headaches. He expressed his worry if he receives a long sentence that, he may never see his father again due to his age. He stated he calls his mother daily, and she expresses to him her distress and feelings she is having. His mother reports the family argued a great deal as a result of his incarceration, and he fears that it is having a negative impact on her health. Additionally, his brother is unable to secure employment due to his conditions, and the family is experiencing financial distress.

Mr Leung reported that his responsibility to his family was to work and contribute financially to help with the general day‑to‑day living and bill payments in Hong Kong. He stated he would earn approximately 100,000 Hong Kong dollars per month and does not know how his family survives without that income.

Mr Leung indicated during his period of remand/custody, he finds it particularly tormenting, and he is concerned about his family’s financial situation. As his English language ability is limited, he noted he becomes the victim of bullying from other inmates. He reported he had been assaulted whilst on remand, he is regularly threatened by other inmates, has chronic back pain, has difficulty sleeping, experiencing his headaches, and his nightmares and constant tension in his body. When he speaks with his mother, she tells him of the family problems, and he attempts to comfort her but often is unable to stop her negative energy. Additionally, he has found it difficult to adjust to western culture and speak English daily and finds it difficult to interact with other inmates.”

I shall return to that issue a little later.

Remorse

58. Although there are expressions of regret in the material before me, none of the expressions indicate that the offender is aware of what his actions may do and how they may interfere with the members of the Australian society where he came and where he indulged in the criminal activity of “cooking” illicit drugs. Illicit drugs destroy lives, and they destroy families. The offender has not shown as far as I can determine any victim empathy. However, I can accept that thus far he has not concentrated on that issue but, when he thinks about what he sees in the gaol system, he will see the lives of many persons ruined by their addiction to illicit drugs. Drugs destroy lives, they destroy families, they destroy careers and becoming involved in the drug trade is a blight on our society, that blight being, of course, recognised by the severe penalties imposed by parliament upon those who do involve themselves in drug trafficking.

59. Clearly the offender ended up working for some drug cartel probably based in Hong Kong or elsewhere in mainland China and he came here to work and the work which he did was in drug trafficking. No doubt he became very quickly aware that what he was doing was unlawful and what he was doing exposed him to apprehension by the police. I do accept, however, the fact that his name and telephone number were given to the consignor of the packages from Bangladesh indicates that he was naive about his becoming involved in drug trafficking or the drug trade.

Impact of Language & Cultural on Onerous Nature of Incarceration

60. In submissions the Crown pointed out this:

“The Offender will serve any sentence away from the support of his family and friends. However, as stated in R v Ferrer-Esis:

‘The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent), has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he’s obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact.’”

61. However, it is worthwhile referring to the whole of what was said on that issue by Hunt J, as he then was in R v Ferrer-Esis (1991)55 A Crim R 231 at 239. The Court comprised Gleeson CJ, Lee CJ at CL and Hunt J, the Chief Justice and the Chief Judge at Common Law agreed with the judgment of Hunt J. At page 239, his Honour said this:

“There were a number of subjective facts which the Judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance. The fact is that any person who comes to this Country specifically and quite deliberately to commit a serious crime here (as did the respondent), has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he’s obliged to remain incarcerated in this Country, with its language and culture foreign to him, isolated from outside contact. The respondent has nevertheless responded well in custody and favourable reports were tendered as to his attendance at English classes and as to his rapport with his fellow prisoners and with prison officers.

It is indeed a tragic thing that a man of the respondent’s background should knowingly have placed himself in this position for what appears to have been simple greed, and perhaps not very great greed at that. But subjective features such as those can have little impact in the face of the need for the Courts of this Country to make it clear to others who are like minded that they will suffer severe punishment if they commit similar offences. Such subjective matters are in any event, in the circumstances of this case, more appropriate to take into account in relation to the non-parole period to be fixed.”

62. The facts of that case include this:

“The respondent was 36 years of age, a married man with two families (including a total of six children), who he supported. He had been continuously employed in his native Venezuela since 1972, originally as a welder and then as a clothing retailer. He purchased a return airfare from Venezuela for US Dollars $2270 which sum exceeded by 20% his annual income. His visa to enter Australia prohibited employment in this Country. During a two day stop over in Argentina the respondent was given possession of a suitcase in question in which he placed some of his own clothes, he gave his own (smaller) suitcase to a man who had given him the suitcase in question and he was paid, it was said, US $500 to bring that suitcase into Australia to hand it over to the man by whom he had been given it, after he had been cleared through customs.”

63. It is clear that that offender’s native language was Spanish. Again, a person with a Spanish background coming from a Country that was initially colonised by Spain would grow up in a European environment speaking a European language and it would be much easier to comprehend a language such as English, where it might be easily read because Spanish and English both use the Latin alphabet.

64. The offender is currently incarcerated at the Clarence Correctional Centre near Grafton. I suspect, as I mentioned during the debate before commencing to give judgment, that for a man from Hong Kong being up on the big river as it is called, the biggest river in this state at the Clarence Correctional Centre would be like being on the moon for a young man from China, in particular a large and very busy and crowded city such as Hong Kong. I will certainly take that into account when fixing the non-parole period. I also, bear in mind that I have not found that the offender came to Australia deliberately to commit crime, however I cannot ascertain on the evidence before me what it was that brought him to Australia other than a promise of being paid money which might re-pay his large debt.

Consideration

65. There is a Sentencing Assessment Report before me, but it is not particularly helpful other than advising me that the offender has a medium to low risk of reoffending. Otherwise matters contained in the Sentencing Assessment Report are consistent with the other material before me.

66. The Crown has provided me with a small number of cases which I have carefully considered, including Wong v R [2018] NSWCCA 263, R v Agboti [2014] QCA 280, DPP (Cth) v Estrada, Yuan and Byun (2015) 45 VR 286; [2015] VSCA 22 and R v Cheung; R v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398.

67. I have also had regard to such statistics as were available to me from the Judicial Commission. For offences contrary to s 307.1(1), importing a commercial quantity of a border controlled drug, there are 177 cases. In 175 cases a custodial sentence has been imposed. The 80% range of head sentences is between four years and 18 years. And the 80% range of non-parole periods is between 13 months and ten years. The median sentence is eight years with a non-parole period of five years. The great range in those statistics indicates probably the amount of drug that was imported. It must be recalled, in the current case, I am dealing with an attempt to import rather than the importation itself. However, it is important to bear that in mind when considering the Sequence 5 offence, the first substantive offence, which is only an attempt.

65. As far as s 305.3(1) of the Code is concerned, the New South Wales statistics give me only seven cases. Two of those cases are Cheung and Choi. In their cases there was a head sentence of six years with a non-parole period of four years. There were two offences in which there was a head sentence of 12 years with non-parole periods of, in one case, seven years and another case eight years. There were three other cases, but they were all of 18 years or longer, as far as the head sentence is concerned.

66. As far as the first substantive offence is concerned, I again stress it was an attempt to import, not an actual importation. The amount was 1.49 times the commercial quantity of the drug. In the grand scheme of things that is not a particularly serious crime. In my view the appropriate head sentence for that offence is four years.

67. It is common ground that the offender pleaded guilty at the earliest available opportunity. For that, I allow a discount of 25%, so that the head sentence becomes three years imprisonment.

68. As far as the second substantive offence is concerned, manufacturing a commercial quantity of the border controlled drug, DMA, I again point out that the amount was 1.44 kilograms, which is about 1.5 times the commercial quantity of 750 grams. It amounted to refining only much less than, for example, making actual amphetamine from base substances or precursors. Such manufacture can be very dangerous, including the risk of explosions of chemicals under heat and causing fire and the like. As I said, there are only seven cases reported in this State.

69. I have to also bear in mind the matter on the schedule under s 16BA of the Crimes Act 1914 (Cth). Again, that is very important in this case because the offence given on the schedule is importing a commercial quantity of the drug, DMA, namely the DMA that was used in the manufacturing, the commercial quantity of the drug. It is only the amount of the drug, being towards the bottom of the range, that in my view militates against a much more serious sentence being imposed.

70. I start with a head sentence of six years. Allowing a 25% discount for the utilitarian value of the plea of guilty, the head sentence becomes four years and six months. The total of those two sentences is seven years and six months. I have formed the view that it is appropriate to impose an aggregate sentence. I reach the view that the appropriate aggregate sentence is five years and six months.

71. The question then becomes the non-parole period. As the authorities make it clear, there is no minimum or presumptive non-parole period under Federal Law, such as the statutory presumption under New South Wales law that the non-parole period will be three quarters of the head sentence. There was, in the past, a practice of making the non-parole period one third of the head sentence, but again that is contrary to authority.

72. Here, I bear in mind the onerous nature of the offender’s incarceration as Hunt J (as he then was) indicated in Ferrer-Esis, that I should take it into account. I propose a non-parole period of three years and three months. It is common ground that the sentence should commence at the time of the offender’s arrest on 14 June 2023.

73. Before proceeding further, I turn to the provisions of s 16A(2) of the Crimes Act 1914 to ensure that I have addressed the issues that that statute requires me to address. I have described the nature and circumstances of the offence. I have taken into account the matter on the form under s 16BA. This offence did not form part of a course of conduct. I have taken into account the personal circumstances of the offender. There is no actual victim here other than the community at large. Fortunately, there does not appear to have been any injury, loss or damage resulting from the offence. I therefore do not need to consider s 16A(2)(ea).

74. Subsection (2)(f) requires me to take into account the degree to which the person has shown contrition for the offence. I am sure that he is contrite but there is nothing that he could do to make reparation for the offence. I am confident he will not commit the offence again because he will be returning to Hong Kong, both as he desires and probably because the Commonwealth of Australia will ensure that he does. Section 16A(2)(fa) is irrelevant.

75. I have taken into account the fact that the offender has pleaded guilty to these offences and I have taken into account the timing of the plea. I am not aware of any cooperation that the offender gave to the law enforcement agencies. In particular, I am not aware that he gave any interview to the police that could help them pursue others involved in the criminal enterprise.

76. In proposing the sentences that I have, I have had due regard to both specific and general deterrence. I do not believe that specific deterrence plays a large part in the current case, but in any drug case of this nature general deterrence is of the utmost importance. In passing the sentence I propose, I have done what I can to ensure that the offender is adequately punished for this offence. I have detailed in some degree the character, antecedents, age and physical and mental condition of the offender.

77. I have also borne in mind the prospects of rehabilitation. The offender must know that in China, or perhaps not in Hong Kong but certainly in mainland China, the current offences would be punished much more severely than they are in Australia.

78. Finally, I have taken into account the probable effect of any sentence or order under consideration would have on the person’s family. He does not have any dependants as such, but he will use any lawful income he derives to support his family.

79. Clearly, I have referred to the effect of the offender’s sentence on his elderly parents and on his brother because they would be affected by any particularly long sentence. That would be to their detriment and the detriment of the offender himself.

80. Any further reasons required, gentlemen, before I pass a sentence?

TERRACINI: No.

JORDAN: No, thank you, your Honour.

HIS HONOUR: Thank you.

Sentence

84. Ka Ho Leung, on the charge that between 15 May 2023 and 29 May 2023 at Summer Hill and elsewhere in this State you did attempt to import a substance, the substance being a border‑controlled drug, namely N,N‑Dimethylamphetamine and the quantity imported being a commercial quantity, you are convicted.

85. On the charge that between 12 May 2023 and 14 June 2023 at Summer Hill and elsewhere in this State you did manufacture a substance for a commercial purpose, the substance being a controlled drug, namely N,N‑Dimethylamphetamine and the quantity manufactured being a commercial quantity.

86. I sentence you to imprisonment. I impose an aggregate sentence. I set a non-parole period of three years and three months commencing on 14 June 2023 and expiring on 13 September 2026.

87. I impose a further period of imprisonment of two years and three months to commence upon the expiration of the non-parole period and expiring on 13 December 2028.

88. The total sentence is therefore for five years and six months comprising the non-parole period and the balance of the sentence.

89. You are eligible to be considered for release to parole at the expiration of the non-parole period.

90. In passing that sentence I have taken into account the matter on the Form 1, on the Form 16BA.

91. The indicative sentences are for the Sequence 5 or first offence, three years. For the Sequence 6 offence, four years and six months.

92. Any other orders sought?

TERRACINI: No.

JORDAN: No, thank you, your Honour.

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Decision last updated: 15 May 2025