R v Lin & Lau

[2006] NSWDC 143

CITATION:	R v Lin & Lau [2006] NSWDC 143
HEARING DATE(S):	24/08/2006 03/11/2006
JUDGMENT DATE:	24 November 2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [24] & [25]
CATCHWORDS:	Criminal Law - Sentence - Manufacture/ Produce a Prohibited Drug - Large Commercial Quantity - Sentence in a Foreign Country
LEGISLATION CITED:	Drug Misuse and Trafficking Act Crimes Act
PARTIES:	Crown Song LIN Kar Wah LAU
FILE NUMBER(S):	05/11/1205; 06/11/0082
SOLICITORS:	NSW DPP Jeffreys and Associates ( Lin) Gregory J Goold Solicitor (Lau)

SENTENCE

1 HIS HONOUR: Song Lin and Kar Wah Lau appear for sentence today, having pleaded guilty to offences concerned with the manufacture of a prohibited drug, namely, methylamphetamine.

2 Quite clearly it is important to bear in mind the precise charges to which the two offenders have pleaded guilty.

3 Kar Wah Lau pleaded guilty to manufacturing not less than a large commercial quantity of amphetamine, but Song Lin pleaded guilty only to knowingly taking part in the manufacture of a commercial quantity of that drug. The maximum penalties are different. Mr Lau faces life imprisonment, whilst Mr Lin faces 20 years imprisonment, and the standard non parole periods are also different, 15 years and 10 years respectively.

4 These recently introduced standard non parole periods say a great deal about the seriousness with which the legislature, and, I believe, the community, regard such large scale drug manufacturing operations - operations designed to make significant profits through human misery.

5 These offences were detected by police when they conducted an operation involving the two offenders and another man named Kang Wing Lo, whom I sentenced earlier this year.

6 The Crown tendered a lengthy statement of facts, setting out the observations made by police as to the involvement of each of the three offenders.

7 Mr Lau arrived in Australia on 15 December 2004 and flew to Sydney a couple of days later. He was arrested on 2 January 2005 at the premises which had been obtained as a base for the manufacturing process. He is a citizen of the Peoples Republic of China and a resident of Hong Kong.

8 Mr Lau was the person who was responsible for extracting the methylamphetamine from methylamphetamine hydrochloride, which had been hidden inside a number of electrical capacitor shells. The idea was that the material would be removed from the shells and mixed with water to dissolve the methylamphetamine. This was to be filtered and then heated, which would lead to methylamphetamine crystals being formed when the solution was cooled. By that process the total quantity of methylamphetamine which could have been produced from the materials that were discovered by police when they arrested the offenders was 8.8698 kilograms. The charge to which Mr Lau pleaded guilty was the manufacture of that quantity of methylamphetamine.

9 Mr Lau gave evidence that he only learned that he had been given the task of manufacturing the methylamphetamine once he came to Australia. He said that a Triad organisation had asked him to bring some filter papers to Australia and that he agreed because of concerns as to what would happen to him if he refused. Once here, Mr Lau’s evidence was, that he then discovered that he also was to be responsible for the separation of the methylamphetamine from the methylamphetamine hydrochloride and he had to make telephone calls to others on a daily basis, because he had no expertise in so doing. I reject this as being not a reasonably possible version of events. It is beyond comprehension that Mr Lau would be tasked with the manufacturing process unless he had some ability or expertise. This was not some amateur operation involving a relatively worthless substance. On the contrary, this was a sophisticated enterprise involving considerable expense and the prospect of a large profit. The task of manufacturing the essential product would not, I am satisfied, be placed in the hands of a person who is naïve and inexperienced as Mr Lau said he was. I find that Mr Lau knew before he came to Australia that he was to act as the cook, he being chosen because he knew what to do.

10 Mr Lin is an Australian citizen and his involvement in the process began much earlier than Mr Lau’s. It seems that he first came to the attention of police on 17 November 2004, five days after Mr Lau arrived in Sydney and then was responsible for arranging things, so that Mr Lau would be able to manufacture the methylamphetamine in the manner I have described.

11 When I sentenced Mr Lo I said that it appeared that Mr Lin played the role of organiser. However, it may not be that I am able to make the same finding when I sentence him. For reasons which are not at all apparent, but which are no doubt soundly based, the offender is charged with only knowingly taking part in the manufacture of less than a kilogram of methylamphetamine. That tends to suggest acceptance by the Crown that in this matter he acted at the direction of others.

12 Mr Jeffreys submitted that I should find that his client was the general dog’s body, who did not know that more than one kilogram of methylamphetamine was to be produced. I will sentence his client on that basis, because of the charge chosen by the Crown. However, that does not mean that Mr Lin’s conduct is not serious. Quite clearly Mr Lin was a very enthusiastic participant in the manufacturing process. He seems to have had a personal interest in the outcome being successful, getting frustrated at times when things did not progress as quickly and as smoothly as he would have preferred. Mr Lin was deeply involved and went to considerable trouble to see the illegal enterprise come to fruition. Further, he was engaged on his illegal activities for some considerable time, much longer than Mr Lau, who came to the attention of the authorities later than Mr Lin.

13 As I mentioned before, the offender Lau is not an Australian citizen. He was raised in Hong Kong in the New Territories, telling a psychologist, who prepared a report for the Court, that his family was very poor. He is apparently married and his wife remains supportive of him, even though he is in custody in Australia. They speak to each other on the telephone, but the chance of him receiving visits from his wife, at least of any regularity, are slim indeed.

14 He has worked in various occupations, including a period as a customs declaration officer in Hong Kong. He told the psychologist that while employed in that occupation he met another person who became a friend and who lent him money. Mr Lau said it was that friend who told him to bring the filter paper to Australia. The psychologist also reported, and I quote, “Mr Lau stated that he has not previously been convicted of any criminal offence.” That is not true. Indeed, he has a significant criminal history from Hong Kong. When asked to explain this discrepancy in the witness box the offender claimed that he misunderstood what the psychologist was asking him and believed he was only being asked about offences in Australia. Then, when giving evidence before me, he was asked whether he had any other convictions. Mr Lau failed to mention, until I prompted him, some of the offences which he had committed whilst in Hong Kong. I am satisfied that he was deliberately untruthful to the psychologist and attempted to mislead me concerning his prior criminal activities. The psychologist’s interview was conducted with the aid of an interpreter and the offender had similar assistance whilst giving his evidence in Court. I do not believe that it is credible in those circumstances that the offender would have misunderstood what was being asked of him, either in Court or in the interview.

15 It is to be noted that the offender Lau will be serving his sentence in a foreign country. He will have few visits from family and friends and will experience language problems. There is the risk that these problems will be compounded by the circumstance that whilst he was in custody rumours began circulating that he had been assisting the authorities in some way and thus he was separated for a while from other people with whom he could communicate. His plea of guilty was entered at an early opportunity so I will discount the sentence I would otherwise have imposed by 25 per cent to reflect that fact.

16 As I noted earlier, the offence for which Mr Lau is to be sentenced carries a standard non parole period of 15 years. Of course, that is not of direct application, given the plea of guilty, but it remains as a guidepost, which I must take into account when formulating the appropriate sentence. In assessing the objective seriousness of the offence insofar as Mr Lau is concerned I take into account that he played a crucial part and that the potential was there for more than eight times a large commercial quantity of methylamphetamine to be produced. I am satisfied that the objective seriousness of the offence is in the middle of the range.

17 I should make a specific finding as to whether the offender Lau is entitled to rely on the mitigating factor that he was under duress. He told the psychologist who interviewed him, and he also gave evidence, that he was asked to conduct this process by people who are members of a Triad organisation and that he was afraid of the consequences of not agreeing. Both of those may be true, but that does not mean that the offender was motivated by those factors to do something that he would not otherwise have done. I am not satisfied on the balance of probabilities that the offender Lau was acting under duress. To the contrary, I find what motivated him was the prospect of financial gain.

18 The offender Lin was born in China, coming to Australia in 1989. He has family back in China, where his wife is waiting for a visa application to be processed. He was married earlier to another woman he had met in China. He reports that she started gambling which caused his marriage to deteriorate, which, in turn, caused him to become depressed. He then said that he himself began to gamble and suggests that at least part of his motivation for becoming involved in this serious offence was because he was short of money. As far as the offender Lin is concerned he has one matter on his criminal history, which was dismissed under what was then s 566A of the Crimes Act. I note that he told the psychologist who interviewed him that he had no prior criminal offences, but I am prepared to make a finding in his favour that he was not trying to mislead the psychologist when he failed to mention the earlier matter, it not being in a technical sense a conviction.

19 The standard non parole period applying to the offender Lin’s offence is one of ten years. Again, however, I note that the standard non parole period is not of direct application, because of the plea of guilty, but it remains as a guidepost. Indeed, there is a possible argument that the standard non parole period does not apply for another reason, namely, that the offence to which he pleaded guilty was knowingly taking part in the manufacturer of a prohibited drug, whereas the table to s 54D describes the offence in s 23(2) as being “Manufacture or production of commercial quantity of prohibited drug.”

20 Because of the plea of guilty the question of whether the standard non parole period would apply to a person who pleaded not guilty to an offence of knowingly taking part in the manufacture of a commercial quantity does not need to be determined here.

21 The offender has no significant record of criminal convictions and was, as far as I can determine, a man of prior good character until he began his significant involvement in this serious offence. As to whether he is unlikely to re-offend, I am prepared to make a finding to that effect, noting his criminal history, his work history and his age, as well as taking into account the significant personal deterrent effect which the sentence I will shortly announce will have upon him. As with Mr Lau, I have discounted the sentence I would otherwise have imposed by 25 per cent, to reflect the utilitarian value of his early plea of guilty.

22 Both offenders expressed their remorse. Although Mr Lin did not give evidence to that effect he did write a letter to me which was tendered without objection from the Crown.

23 Finally, I should mention that when deciding the sentences to impose upon both the offenders standing for sentence today I had to bear in mind the need to ensure that they do not have a justifiable sense of grievance when they compare the sentence imposed upon them with the sentence I earlier imposed on Mr Lo. (Although complicating that factor is the circumstance I mentioned earlier about the inconsistent findings of fact I have made concerning who was the organiser in these offences.)

24 For Mr Lau I set a non parole period of nine years with a head sentence of twelve years. That is to commence on 2 January 2005 and he is eligible to be released to parole on 1 January 2114.

26 For Mr Lin I set a non parole period of six years, with a head sentence of eight years, also to commence on 2 January 2005. He is eligible to be released to parole on 1 January 2011.

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