R v Liu

[2019] NSWDC 932

District Court

New South Wales

Medium Neutral Citation:

R v Liu [2019] NSWDC 932

Hearing dates:

19 February 2019 - 22 March 2019

Decision date:

20 June 2019

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Convicted. Sentenced to a term of imprisonment of three years and three months; non-parole period of two years and two months.

Catchwords:

CRIME - Sentence – possess tobacco products knowing that the goods were imported with intent to defraud the revenue – co-accused – middle man – under direction of importer – Chinese National – illegal resident – operated from premises of legitimate business – admits involvement with previous distribution of cigarettes from China – aware of character of importation but not necessarily scale and scope of defrauded revenue – unknown financial reward to offender – prior good character – minor criminal history.

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code s 11.2A

Customs Act 1901 (Cth) s 233BABAD(2)

Cases Cited:

Hili and Jones v R (2010) 242CLR 520

Zhang [2017] SASCFC 5

Category:

Sentence

Parties:

Regina (Crown Cth)
Qingtau Liu (offender)

Representation:

Counsel:
Ms Gibson (Crown)
Mr E Wasilenia (offender)

File Number(s):

2017/00138000

Publication restriction:

No

Judgment

1. Qingtao Liu appears today for sentence in relation to an offence to which he pleaded ‘not guilty’, but was found guilty by a jury after a trial of some weeks that commenced on 25 February 2019. He was convicted of an offence alleging that he on 8 May 2017 at Lidcombe in New South Wales committed an offence with Jingyu Li and others namely possess tobacco products knowing that the goods were imported with the intent to defraud the revenue.

2. There is no need for me to detail all the evidence at the trial. The prisoner gave evidence in his defence. There were a number of matters that were not in dispute, but consistent with the jury’s verdict there were obviously aspects of the prisoner’s evidence that were not accepted or did not raise reasonable possibilities inconsistent with guilt in respect of issues at large for the jury to decide.

3. The crime for which he is to be sentenced is an offence contrary to s 233BABAD(2) Customs Act 1901 (Cth) in conjunction with s 11.2A Criminal Code. The offence carries the maximum penalty of ten years imprisonment and/or $25,200 fine. There are no matters to be taken into account on a schedule or a form, nor any other offences that concern the Court.

4. The prisoner was arrested on 8 May 2017 in circumstances I will outline very shortly and has been in custody since that date. As I have foreshadowed to the prisoner in telling him what the sentence will be, the sentence I impose will commence on the date he came into custody. I am informed there is only one co-accused with whom I am directly concerned, that is a person by the name Jingyu Li to whom I earlier referred as the person in joint possession of tobacco products with the accused.

5. Mr Li is a much younger man and he is listed to be sentenced by me in some weeks’ time. He gave evidence at the trial and his evidence was relied upon by the Crown in respect of material matters relevant to proof of guilt of the prisoner. I feel in the context of the character of the Crown case that the Crown could have, and most probably would have, proven the prisoner’s guilt even if Mr Li had not given evidence in the trial. That is not to be taken as any criticism of the way in which the case was professionally conducted by both Crown and defence.

6. The prisoner was born in 1959, thus at the time of the commission of the offence the prisoner on my calculation was 58 years of age. He is now, as I understand it, 60 years of age. Again no criticism of the parties but it is regrettable that it takes so long for a single accused facing trial whilst in custody to have his or her matters resolved.

7. The facts upon which I sentence the prisoner having indicated that I do not propose to detail the scope of the evidence at trial, are these: The prisoner was arrested on 8 May 2017 at commercial premises in the character of a complex of warehouses at Lidcombe. The relevant warehouse was a facility with which the prisoner was well familiar as evidenced in the trial in the manner of a CCTV camera “film” from May 2016 revealed.

8. The warehouse, however, was not the prisoner’s. It was under the control of others including a person who the prisoner referred to in his evidence as ‘Abian’ who, as I understand the prisoner’s evidence and am prepared to conclude for the purposes of this sentencing exercise, was the principal organiser of the importation of cigarettes with which the charge was concerned and was the person who at relevant times gave instruction or direction to this prisoner as he had done it would seem from the CCTV footage that I viewed from almost a year before when another consignment of cigarettes clearly, it would seem imported from China, were unloaded, unpacked and repacked by the prisoner in company with others.

9. The prisoner as I understood his evidence had been to the warehouse on other occasions in the context of packing and unpacking cigarettes from China for distribution within Australia. I will come back to the relevance of the evidence of other conduct of the prisoner in relation to this crime shortly.

10. On 8 May 2017 the prisoner was aware that a shipping container had arrived from China. Before 8 May Commonwealth investigators had identified an illegal importation of cigarettes. It was subsequently discovered after the importation was dismantled by the investigators that the cigarettes disguised in containers claiming to be flat packs of furniture numbered 7,445,400 in various brands of cigarette clearly marked as manufactured or coming from China.

11. As I said the cigarettes had been hidden for importation obviously in China inside flat packs said to contain furniture. The flat packs were very similar in character to the cigarettes that were unpacked by the prisoner and others in May 2016.

12. On 8 May 2017 three people had been recruited to unload the container and presumably undertake the task of unpacking the cigarettes to repackage them for distribution within Australia. One of those people, the man, Jingyu Li, was a young man in his early 20's who worked for the prisoner from time to time in various tasks of a legitimate character in relation to the prisoner’s furniture and other goods removalist business. That person had also assisted the prisoner on previous occasions to unpack cigarettes at the warehouse at the direction of the prisoner.

13. The two other people who were present on 8 May 2017 outside the warehouse at Lidcombe after the delivery of the container containing the cigarettes earlier that day were Shiqi Jiang and Jinbo Yu who apparently were tasked to perform the role of labourers in removing the contents of the container, transferring them to a vehicle and in due course, but for the interruption of the investigators, unpack the cigarettes from the disguised packages.

14. I am unable to conclude who recruited these two people for this task. These other two people as I understand it have never been charged with any criminal offence in relation to the events of 8 May 2017. All three were at the direction of the prisoner to unload the container and place it in the body of a truck that was controlled that day by the prisoner in association with what I said earlier to be his legitimate removalist business.

15. The arrival of the container, the unloading of the container and other activities all occurred on this day under the careful gaze of Federal investigative authorities who were, earlier aware of the character of the importation.

16. The surveillance evidence at the trial revealed the prisoner seemingly disinterested in the contents of the container leaving the hard work of unpacking, unloading and the use of forklifts and the like to the other three. Clearly the prisoner’s apparent disinterest was as a result of the fact that he was well aware of what the flat packs contained. He was aware, as the jury’s verdict makes clear, that the cigarettes that were within the container had been smuggled into Australia in the guise of other items to avoid the payment of relevant Commonwealth duty and tax.

17. He was also aware that the cigarettes were to be on-sold on the black market in Australia. On his own admission he had been involved in the distribution of cigarettes previously imported from China as part of his role as a type of delivery man at the direction of Abian or others associated with Abian. He admitted in his evidence to the jury in trying to explain an exculpatory connection with the importation that he had professional dealings with Abian who was not only responsible for the warehouse at Lidcombe but had a retail business at Auburn and had warehouses at three other locations, one at Auburn which seemed to be connected physically to the retail business, one at Olympic Park and one at Waterloo.

18. From these warehouses cigarettes imported from China were distributed in Sydney. The prisoner conducted other business as a removalist. He advertised himself as a removalist and he did move, as Mr Li pointed out, furniture and other items in the pursuit of legitimate activity.

19. I do not know the circumstances in truth of the recruitment of this prisoner by

20. Abian or people associated with Abian that had direct responsibility for the importation of the cigarettes. The prison’s business as a removalist had been ongoing for a number of years and it may well have been that initially the prisoner had been recruited some time before May 2016 to undertake work on behalf of Abian that was entirely lawful and legitimate.

21. As I said earlier, the evidence established and the prisoner admitted that he had been connected with the unloading of a number of containers, involving importation into Australia of cigarettes from China. The prisoner gave exculpatory explanations for his conduct, as then known to the police, at the scene of his arrest. The arrest occurring, as with the arrest of the other men, in the course of the unloading of the container at the time that the four men took a lunch break. The prisoner, as the jury was directed, also told investigating police untruths or lies about the circumstances of his involvement with the container, then the subject of investigation. I know nothing of the circumstances of the other two men, but as I said, they not having been charged, I must draw the conclusion that they were not aware of the true character of the importation.

22. The potential loss to the Commonwealth on excise duty payable, was $4,595,747.60. This is a significant evasion of excise duty payable on those goods. This sum was arrived at, in the evidence at trial, by a calculation of a certain amount for excise duty for each cigarette. There is no dispute as to the total calculation of duty sought to be evaded, if proper tax and duty payments were made there would also have been GST paid on the cigarettes. Presumably at the point of retail sale. But the GST sought to be evaded has not been calculated. Financial reward for the prisoner was not known. However, it is clear in the context of the jury’s verdict that the prisoner would have received more than simply the money required to be paid in a commercial context for the transportation of goods after they were unpacked. This is so, even allowing for the fact that he would have transported the goods in the context of his legitimate business interests.

23. In relation to this importation, it was not a simple matter of simply unloading cartons of cigarettes readily available for distribution at the video recording of the CCTV footage from within the warehouse showed from May 2016. What was required was the dismantling of the packaging, purportedly containing other goods, the removal of the cigarette cartons and the repackaging of the cartons of cigarettes in conventional cigarette boxes for transportation and distribution. The prisoner admitted by reference to past activity that he would have been involved in at least part of that distribution, albeit from a different site than the Lidcombe warehouse.

24. I accept that the evidence leaves one with only one conclusion as to financial reward and that was that the prisoner would have received remuneration for the unpacking and the distribution. But as I said, such evidence as he had given about what he received, I could not accept as accurate. Clearly he was entrusted by the principal importers not to reveal the true nature of the importations, disguising the presence of cigarettes in the importations. On the other hand I could not conclude that the prisoner was to receive some type of percentage, or commission, in relation to the particular importation for which he has been found guilty.

25. I accept, and it is not disputed in the context of the verdict and the evidence in the case, that the prisoner’s role was to direct the young men present, his presence was also essential for the proper unpacking and delivery of the cigarettes at the direction of those persons who controlled the importation from within Australia. It is clear that the prisoner was fully aware of the character of the importation. Although he would not have known necessarily how many cigarettes were imported or the scope of duty evaded.

26. This last matter is conceded by the Crown.

27. The prisoner could be described in the context of what could be called the Australian connection as a “middle man”, between the person responsible, for organising the importation from within Australia and the people required to unpack the importation and perhaps further distribute the cigarettes for retail purposes.

28. The Crown characterised the prisoner as being “an important link in a supply chain between China and Australia”. The way that that was expressed, I do not believe is exactly correct, in the sense that the prisoner was not responsible for the importation from China and there is no evidence that he had any direct connection with anybody in China concerning the preparation of the importation, the financing of the importation and the like.

29. The prisoner is a Chinese national who arrived in Australia in 2001. He was an illegal resident in Australia from 2011 but on the evidence available to me, this background does not signify any direct connection with the Chinese exporters. I accept, as I have said earlier that he was a middle man and clearly an important link between the Australian importer who would profit from the distribution of the cigarettes after their importation and those who had the responsibility of either unpacking the container or selling the cigarettes for retail purposes.

30. The prisoner, as of 8 May 2017, was clearly practised in what was required for the unpacking of the container to the point where if needs be he could direct others without having to do the work himself. In May 2016, as shown in Exhibit M and the related stills in Exhibit M1, the prisoner played an active role in the unpacking and the repacking of the cigarettes.

31. The connection of the prisoner with the importations of cigarettes, at least in the case of May 2016, was established from the CCTV footage that was retrieved by the investigators from a hard drive that was found in the prisoner’s vehicle on 8 May 2017. He gave an explanation that the hard drive was in the boot of his car, having been taken from the warehouse, as it was required to be repaired or perhaps replaced. I accept this explanation. There is no evidence the prisoner was aware that the Australian Federal Police were going to arrive that day. If it had been of concern to the prisoner over the year between the importation in May 2016 and his arrest on 8 May 2017 that film of his activities in May 2016 would be revealed, he had ample opportunity to remove the hard drive before the day of his arrest.

32. The events shown from May 2016, as the Crown submits, provide a context for understanding the circumstances of the prisoner’s involvement in the commission of the events. The prisoner is not being sentenced in relation to the count with which he has been found guilty on the basis of a “totality of criminality” purportedly exposed in the trial. He is sentenced however on the basis that his conduct on 8 May, in the context of his criminal conduct being interrupted, was not uncharacteristic. Nor was it a one off exercise on his part.

33. The prisoner gave evidence at the trial about his background. It was important given that he raised his good character before the jury and I accept the evidence he gave. It is unremarkable and some of it is confirmed by the evidence of his partner.

34. He was born in China in 1959. After he left school, he served in the Chinese army, the People’s Liberation Army I would expect it to be titled, for five years. He was a person of lowish rank. He was not an officer. After his service in the military, which probably was compulsory, he worked for the People’s Bank of China and he worked there in sales or reception for a number of years up until 2000. He came to Australia as a visitor in 1998 on a business trip. He migrated here, if that is the correct expression, in 2001. He thought he met his current partner in 2003. She gave evidence it was a few years after that. It does not matter a great deal. She gave evidence that whilst he is responsible for two young boys as a father figure in the family, only one of those two boys is his son. The elder boy, is from another relationship the partner had, separate from that she had with this prisoner.

35. The prisoner gave evidence that after settling in Sydney, he set up his removalist company and did work around the city which I accept. He advertised in local Chinese newspapers and there was evidence before the jury of that fact. Initially he and his partner lived in Hurstville. They then moved to Ultimo. By 2016, they were living in an apartment in St Leonards but because of the arrest of the prisoner and his incarceration, since that arrest, his partner has had to move from St Leonards back to the apartment in Ultimo which is owned by her mother and out of which apparently the mother had been running some type of childcare business.

36. The elder boy was apparently born in 2004 and gave evidence before me. The younger boy was born in 2007. Both boys came to this Court in school uniform on the day of the taking of evidence for sentence proceedings. The prisoner has a minor criminal history. He raised his good character before the jury. Initially he said he had no convictions but in fact he has some findings of guilt but they are completely irrelevant to the circumstances of this offending and are minor matters indeed.

37. The prisoner’s wife’s evidence was that she was in a relationship with him since 2005 and the prisoner had assumed a responsibility for her elder son from the previous relationship. The young man that I speak of was an impressive witness. The Court wishes him all the best for the future. However, he will need to meet that immediate future without his father’s presence or his stepfather’s presence. Because of the prisoner’s current residential circumstances in Australia, without having full knowledge of what will follow under Commonwealth law, it is likely that the prisoner once he is released will be deported back to China. Whether his personal circumstances will militate against that decision I cannot say.

38. The other son born in 2007 must be 12. Both sons are performing well at school. I mentioned the economic necessity with the incarceration of the prisoner that forced the family to leave its residence in St Leonards which was being rented to move into other premises. The mother of the two boys said in her evidence that she was not currently working but receiving some form of student allowance of approximately $400 per week, undertaking a course in English it seems. From the evidence she gave she has an inordinate number of hours to complete and she has only partly passed through that course. School fees for the two boys are outstanding over the last two years, presumably because the prisoner has not been available to provide financial support.

1. The prisoner was described both by his partner and his stepson as a good father, a caring man who worked hard in his removalist business. In fact his wife or partner remarked that although he is not a very big man, which he is not, he was “very strong” which to me exemplified his application to his trade. His partner and the children visit the prisoner once a week and miss his presence in the family. His stepson who gave evidence described him as a “man of dignity” who always encouraged him and his brother to do well at school. The young man told me that he had aspirations to become a medical practitioner.

2. The defence submissions were delivered orally and were very helpful as were the extensive submissions of the Crown in written and oral submissions. The learned counsel for the prisoner adopted the analysis of the prisoner’s role in general terms set out by the Crown. I have adopted the Crown’s analysis but with some, if I may call it, pedantic tweaking. As I said, the middle man role of the prisoner was not between China and Australia but between those in Australia organising the importation and those to whom the prisoner would deliver the relevant cigarettes having supervised the unpacking of the container.

3. I was taken to comparative cases and drawn to various differences between this prisoner and the cases cited in the submissions particularly those identified by the Crown. It was submitted by counsel for the prisoner ultimately, in the context of the objective facts and subjective circumstances as well as by regard to the comparative cases and the legal principles to be applied, that I should fix a sentence recognising the inevitable fact of the prisoner’s time in custody that would permit his release to parole and presumably to be deported at the earliest opportunity. I accept that in general terms as I have foreshadowed because to my understanding, in my analysis of the objective facts and the subjective circumstances and my consideration of what I call the comparative cases, the sentence I propose to impose would be well within the range one would have expected given the maximum penalty.

4. I accept that the prisoner is entitled to the fixing of a minimum term or non-parole period, even if ultimately there is a chance there will be no parole supervision. I also accept that I am required to fix a non-parole period by regard to matters that are relevant to fixing a minimum term on the assumption that a particular prisoner will be subject to parole supervision.

5. In my view, the prisoner would need a somewhat extended period of time for release to parole and the community to adjust to community living in the context of him being a man whose never been in custody before and having been in custody for a substantial period of time.

6. There is one matter about his time in custody that I raise at this point before I come to the Crown’s very helpful written submissions which accurately summarise most of the relevant legal principles. It was a matter, without any disrespect to Mr Wasilenia who very skilfully represented his client, identified at the ‘heel of the hunt’ in the oral submissions for the Crown which frankly escaped me. Because of the delay in the disposition of the matter, it is now as I said nearly two years and two months since he was arrested, the prisoner has been effectively in “maximum security”. That is the very character of remand custody. I know that from my experience as a judge and a lawyer.

7. The facilities in a remand centre may in some respects be superior to other maximum security gaols elsewhere in the state but the facts of the matter are because people are on remand and have been refused bail or unable to raise bail, there must be a high level of security to prevent any attempt to avoid appearing in court. People on remand do not have access to programs that are available in the general gaol. Even to those it might be regarded as being sentenced prisoners within the maximum security regimes. Whilst on remand awaiting trial or sentence, the prisoner has no opportunity of reclassification and other benefits that are properly available to prisoners, for example approaching the expiry of their minimum terms, such as the opportunity for integration back into the community through work release or other programs.

8. Returning to the Crown’s very helpful written submissions I will summarise those. I generally adopt them in detail subject to particular matters which I have either referred to or will refer to in due course. Obviously, I must sentence the prisoner in accordance with the terms of Pt 1B Crimes Act 1914 (Cth) hereinafter to be referred to as the Act. The maximum penalty for the offence for sentence serves as a yardstick and a basis for comparison between the case ‘at bar’ and what is described in the Crown’s submissions as “the worst case”. Sometimes that is described as the “worst case” involving “the worst offender”. In identifying the “worst case” one is not just concerned with the facts of the matter, one must analyse the role of the prisoner within the ambit of those facts.

9. I recognise the legislative object of ensuring the tobacco products are only imported into Australia in circumstances where the requisite excise tax has been paid and the relevant importation is subject to proper assessment of goods and services tax. I note the submissions the Crown made about the sentencing offenders in respect of revenue offences and I humbly and respectfully adopt in general terms the principles that were enunciated in the decision of Zhang [2017] SASCFC 5, in other words the Full Court of the South Australian Supreme Court, at [32] [35].

10. I accept that the prisoner’s conduct represents a serious breach of the law in this respect. I have earlier set out the nature and circumstances of the prisoner’s offending and analysed his role. His previous involvement of a cigarette importation was obviously an important matter in the trial as it reflected upon his ‘fault’ obligations under Commonwealth law. The quantity of the revenue denied, or sought to be denied, is a relevant matter in the sentencing exercise. Although in this particular matter by reason of the intervention of the Commonwealth authorities who skilfully investigated this matter there was ultimately “no loss of revenue” for the consignment, the subject of the charge. But that was through no assistance of the prisoner and those concerned with this importation.

11. I turn now to some aspects of s 16A (2). I have set out the nature and circumstances of the offending. By reference to (c) of that subsection I accept that the offence with which I am concerned is part of a course of conduct. Primarily the prior conduct in this sentencing exercise is limited to considering matters put in mitigation, or if raised in mitigation, and explaining, as I said earlier, the context in which the incident offending occurred.

12. In relation to the issue of financial gain, as it arises under s 16A (2), I have dealt with the matter. There was obviously no plea of guilty, nor has there been an expression of remorse. But, of course, the prisoner does not receive any extra penalty in respect of those matters. The prisoner did consent to be interviewed by the investigators in less than ideal circumstances. In fact, the circumstances of his initial interview were entirely unsatisfactory, as the course of the trial revealed, with many errors in the interpretation of his words, as was pointed out by Chinese speakers on our jury, for which we are grateful. Whilst there was some cooperation in participating in that interview the prisoner, as I would understand it, appreciating his right to silence, the co-operation was limited, bearing in mind he did tell untruths to the investigators.

13. I do not entirely accept the submissions made by the Crown concerning the weight to be given to specific deterrence arising out of his conduct prior to the commission of the offence. It seems to me some issue of tension between the analysis of the offence as part of a “course of conduct” and the matters that are adverted in the Crown submissions, particularly in respect of this issue of specific deterrence. Of course, the sentence must have an element of specific deterrence. But in this particular prisoner’s case, bearing in mind the absence of prior convictions, the time he has spent in custody no doubt will be a salutary experience for him. There is nothing in his mental condition or in his past history that warrants extra weight to be given to specific deterrence. In this matter it is clear by reference to the principles relating to revenue offences weight must be given to general deterrence to dissuade others from engaging in similar conduct. There is also a need for adequate punishment, recognising the need to weigh properly both mitigating and aggravating factors, the objective facts as against the subjective circumstances.

14. It was conceded by the prisoner’s counsel that a sentence of full-time imprisonment was not only the appropriate sentence in the circumstances (s 17A of the Act) but it is the only practical penalty that can be imposed.

15. I have taken into account the prisoner’s character, age and antecedents and background. There is nothing in the material presented to me to indicate the prisoner has any specific physical or mental health issues that affect his time in custody or are relevant to the circumstances of the commission of the offence. I accept, of course, the prisoner is not a young man, being now 60. This would place him as one of the older prisoners in custody. I accept, being a person with Chinese language as his primary language and, with some English, as I would understand it, there will be for him a degree of isolation in custody by reason of the age and his language. His age does present some degree of vulnerability. Although I have no evidence that he has been threatened or beaten whilst in custody. However, it must be said the prisoner is not a man of violence. There is absolutely no suggestion that the group with which he was involved recruited him to intimidate anybody. He was recruited to perform physical tasks short of any threat of violence. But unfortunately, as is the nature of gaols, he may have had and from time to time in the future may have to deal with, and try and avoid, young aggressive, totally inconsiderate inmates.

16. I have taken into account his family circumstances. But there is nothing put to me of an exceptional nature in that evidence. I accept and take into account the evidence given by his partner and his son relating to his personal qualities. I point out, notwithstanding the evidence upon which the Crown relied at trial concerning the prisoner’s activities prior to his arrest and prior to the importation relevant to this charge for which he is to be sentenced, that there appears to be no suggestion that the prisoner is to be regarded as a “member” of an organised crime group, or has lived the life of a person with associations and benefits such as may exist from being part of such a group. I appreciate that the people involved in organising these importations may well be infiltrated by or controlled by organised crime groups. But the fact that a person undertakes tasks on behalf of such a group does not necessarily make that person a member of such a crime group. The circumstances of the arrangements in China for this importation, of course, are very, very shadowy and there is no evidence, other than speculation, which is not sufficient.

17. Some submissions were made by the Crown, admittedly in anticipation of events that have not transpired, concerning parity of sentence between this prisoner and the young co-offender Mr Li. Obviously he is yet to come before me. Whilst I have an understanding of his involvement, having heard his evidence at the trial, the rest of the relevant evidence concerning him is not before me and I have no idea at this stage what sentence I should impose on him because all the facts are not known to me. However, having said that it is quite clear, I should state from the outset on the evidence available to me, that the moral and legal culpability of Mr Li is less than this particular prisoner. Certainly I agree to the extent that it is relevant to this sentencing exercise that having regard to the jury’s verdict and the rejection of relevant parts of the account given by the prisoner, aspects of the evidence of Mr Li would be expected to be regarded as reliable in the future. Ultimately the issue of whether there is any justifiable sense of grievance to be had by one or other of the two prisoners will be determined only after I manage to sentence Mr Li. One would hope and trust that no such sense of grievance will arise.

18. I note the submissions that were made in relation to the fixing of the non‑parole period, or minimum terms, particularly in consequence of the decision of Hili and Jones v R (2010) 242 CLR 520, and the observations of that case in respect of issues such as comparative sentencing, the weight to be given to statistics and consistency in Federal sentencing.

19. I had regard to the comparable cases I am required to carefully weight up by reference to this case the varying objective and subjective circumstances of the penalties imposed on other offenders. Most of the comparative cases were concerned with people that might be regarded as links in a chain rather than principals. Although I note some of the people that were sentenced were persons who had employment responsibilities upon which Australian authorities would rely for the honest handling of imported goods. This prisoner had no such responsibilities.

20. As is well understood in our society at this present time we do not have the equivalent of the Hammurabi Code in sentencing and we are required, as sentencing officers, to do the best we can with the available evidence, using the gifts of intuitive or instinctive synthesis that are conferred upon us when we are sworn in.

21. I do not propose to go through the specific cases that I was provided. A number of which were summarised by the Crown. They were the subject of some comment in the oral submissions. The sentence I will impose, taking all relevant factors into account, will clearly be, as I said earlier, within the known range. Bearing in mind the prisoner has been in custody for almost two years and two months. As I said earlier, I was very grateful to the learned Crown and his solicitor’s helpful written submissions, as is always the case with the Commonwealth Crown. The submissions of the Commonwealth Crown in respect of detailed matters required to be taken into account are always helpful and there is nothing in the way of any major error or distinction to be drawn in the sentencing of this offender from the matters adverted to by the Crown beyond the matters that I have identified. Again, I am very grateful too to Mr Wasilenia, who was to the point and practical in his approach to the matter.

22. Thus, having regard to the evidence available to me and taking into account the relevant matters that I am required to take into account, I will order the sentence for this prisoner.

23. Mr Liu, do you mind standing up please.

24. In relation to the matter for which you have been found guilty you are convicted. You are sentenced to a term of imprisonment of three years and three months, commencing on 8 May 2017 and expiring on 7 August 2020. I fix a non-parole period of two years and two months, expiring on 7 July 2019, on which date, subject to s 19AL Crimes Act 1914 (CTH) you are to be released on parole.

25. Mr Liu, do you understand the sentence I have imposed.

26. OFFENDER: I do, I do.

27. HIS HONOUR: You will be eligible for release to parole on 7 July this year. Today’s date is 20 June. The process after your parole period expires is something that I cannot assist you with, I can’t advise you what would happen, but I would imagine when your non-parole period expires the relevant Commonwealth authority responsible for immigration matters will be notified. The likelihood is that you will be taken from the gaol to a detention centre, but I do not know what legal steps are in place on your behalf or on behalf of the Immigration Department in that regard.                                                         

Decision last updated: 31 August 2020