R v Ngan

[2020] NSWDC 493

District Court

New South Wales

Medium Neutral Citation:

R v Ngan [2020] NSWDC 493

Hearing dates:

5 June 2020

Date of orders:

5 June 2020

Decision date:

05 June 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 14 years with a non-parole period of 9 years, 3 months: at [36].

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Circumstances of offence — Co-offenders — Parity — Deterrence — Establishing relevant matters — General principles — Moral culpability — s 16BA schedule — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Age of offender — Deportation — Drug addiction

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Chuen v R [2009] NSWCCA 116

Ma v R [2010] NSWCCA 320

R v Au (Unreported NSWDC 7 Nov 2008)

R v Balloey [2014] NSWCCA 165

R v Mo [2007] NSWCCA 61

R v Wu; R v Lai [2019] NSWDC 771

R v Zeng [2008] NSWCCA 183

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Tsz Yeung Ngan (Offender)

Representation:

Mr Hughes (Crown Prosecutor)

Mr Lange (Counsel for the Offender)

File Number(s):

2018/146266

Judgment

1. Mr Ngan, now 24 years of age, appears for sentence in relation to the importation of about 200 kilograms of methylamphetamine with a wholesale value of about $22 million and a street value between $30 million and $80 million. The charge is pursuant to s 307.51 of the Criminal Code 1995 (Cth), of attempting to possess commercial quantity of an unlawfully imported border controlled drug. To be taken into account on s 16BA schedule, is a charge of importing a commercial quantity of a border controlled drug. The offender has acknowledged that he wishes to be sentenced taking into account that matter.

2. I have previously sentenced two co-offenders Wu and Lai on 26 August 2019 (R v Wu; R v Lai [2019] NSWDC 771); Wu was sentenced term of 15 years imprisonment with a non-parole period of ten years, and Lai to 12 years imprisonment with a non-parole period of eight years. Both of those sentences were imposed bearing in mind a 25% discount for their pleas of guilty. In the circumstances of this case I am satisfied that a 25% discount for the plea of guilty should also be allowed in this case, even though the plea came at a slightly later stage, given that there was an offer to plead at an earlier stage which was initially rejected by the Commonwealth Director of Public Prosecutions.

3. Ngan has been in custody since his arrest on 9 May 2018 and it is common ground that a term of imprisonment should be imposed and commence on that day.

Facts on Sentence

4. In short, the methylamphetamine was contained in a large number of packets secreted into the base of two metal lathes which were imported in a consignment on behalf of a company known as Anyink International Home Appliances Pty Limited. The drugs were intercepted and substituted with an inert substance which leads to his plea to the principal offence of attempting to import the commercial quantity.

5. The agreed facts are very detailed and extend over 16 pages and as with the remarks on sentence in the matter of Lai and Wu it is unnecessary to repeat them, but I will refer to a précis of the facts which were provided by the Crown.

6. In January 2017 Anyink was established as an Australian Propriety Company; Ngan and another person, Na Li, were appointed Directors and Secretaries Na Li ceased being Director in February 2017, since that time Ngan was the sole Director and Secretary.

7. Ngan arrived in Sydney from Hong Kong, for the first time, on 11 March 2017. A consignment of furniture arrived in Sydney in May 2017. Ngan liaised with the freight forwarder in relation to that importation and departed Sydney for Hong Kong on 14 September 2017, returning on 22 September 2017.

8. In late 2017 Ngan had a number of conversations with an alleged associate Chau, during which they used coded conversation. In particular Ngan and Chau discussed the limited availability of money and the need to stop speaking to each other due to Chau’s impending involvement in the importation of border controlled drugs of which Ngan was aware. It is an agreed fact that although Ngan was aware of Chau’s impending involvement in the importation of border controlled drugs, Ngan was not involved in that particular importation.

9. Ngan went back to Hong Kong on 23 December 2017 and returned on 3 January 2018. On 7 February 2018 he took out a two year lease on behalf of Anyink at a warehouse at Kingsgrove and paid the rent for the warehouse.

10. On 19 March 2018, a consignment containing two lathes was sent from Malaysia to Anyink. Ngan liaised with the freight forwarder. This was a dry run using the same methodology as the subsequent consignment containing the drugs.

11. On 20 April 2018 the consignment consisting of two further lathes with the concealed packets of drugs consigned to Anyink arrived in Sydney from Malaysia. As I indicated the drugs were detected, and substituted with an inert substance and re-packed.

12. On 26 April 2018, Ngan went to Bunnings at Kingsgrove and purchased power tools knowing that they would be needed to cut open the metal braces of the lathes to access the concealed drug packets. Between 26 April and 7 May 2018, Ngan repeatedly called the freight forwarder to make arrangements for the delivery. On 7 May 2018, Ngan met the delivery truck at the warehouse and took possession of the drug consignment, or what was thought to be the drug consignment.

13. Between 7 and 8 May 2018 Ngan worked with Wu to unpack the lathes. He used his mobile phone to have a number of conversations and send messages that he was in the warehouse. On 8 May he went with Wu to Bunnings at Kingsgrove where they purchased two crowbars. On 9 May he went back to the warehouse and he let Wu and Lai into the warehouse. Wu and Ngan prepared suitcases on the floor to receive the drug packets which Wu and Lai extracted from the lathes. Ngan wheeled the suitcase which had been filled with drug packets into the ladies toilets. He remained with Lai in the warehouse while Wu transported two more luggage cases containing drug packets to a safe house at Strathfield. Ngan retrieved the suitcase from the ladies toilet, opened it and proceeded to open all the tea packets it contained and then he removed the clear bags of a crystalline substance purporting to contain methamphetamine. Then with assistance from Wu, he started weighing the unwrapped drug packets using the scales that Wu had bought. They weighed 33 clear packets from Ngan’s case over a period of ten minutes. Three packets were put aside as they were under 1,000 grams. They then started tidying up after the operation. Ngan wiped down the case containing the 33 packets of substituted drugs and he spent a period of time operating a mobile phone appearing to make several unsuccessful attempts to call someone. He then loaded the 33 clear bags of substituted drugs into two separate bags, put them in a wheeled case and walked out of the warehouse with the bag. He put it into a suitcase of the boot of an Uber car and departed the warehouse. He was arrested. His mobile phone was forensically analysed and found to contain emails about the renting of the warehouse and the importation of consignments.

14. He made a number of admissions in a record of interview, including lies which were contrary to the objective evidence obtained by the police. As I indicated briefly, the agreed facts show that the street value of the methamphetamine was between $30 million and $80 million, but due to its high purity the street value would have been more than likely to have been about $80 million and the wholesale value was between $15 - $22 million, and again, given the high purity it was more likely to be about $22 million.

Subjective material on sentence

15. The offender was called to give evidence and he confirmed the truth and the history given to the psychologist, Alison Cullen, prior to preparation of the report dated 27 May 2020.

16. The offender is an only child born in Hong Kong. His mother abandoned him and left the family home when he was six. His father was an alcoholic. There were incidences of child abuse. His father died when he was 18. He completed school to Year 10. He was caught by police for taking drugs and taken to rehab. The offender’s solicitor has gone to the trouble of obtaining correspondence from the Correctional Services Department in Hong Kong which shows that in 2012 he was in the Pikuk Correctional Institution. He detailed numerous examples of abuse, ridicule and torture were occasioned on himself and other youth while in that centre and there is objective material corroborating those assertions of physical abuse by prison guards.

17. He came to Australia at the age of 21. He has worked as a sweeper at Long Bay for about 14 months since his arrest and has also undertaken work in the laundry. There are no adverse entries in his custodial record.

18. As to his drug use, he started inhaling ketamine and smoking crack cocaine and binge drinking alcohol at age 13. He used drugs, on average, four times a week from age 13 to 16. He was caught in possession of cocaine at age 16 which led to him being placed in the correctional centre for 16 months. At age 19 he went into another facility following drug related behaviours. His drug use led to a debt of about $20,000 HKD or about $3,000 AUD.

19. The account that he gave of his offending was that his drug dealer said that he knew a person who was happy to clear the drug debt if he did a job for him, and it was as a result of that conversation that he became involved in this operation. He thought that the drug debt would have been paid off in the six months work that he had done in Australia, but when he asked if he could remain in Hong Kong he was told that he was to remain for some further time.

20. He said that he was under the impression that he was to import cigarettes. The Crown quite properly challenged that assertion, and even though he has adopted his history, I think that should be treated with some scepticism. I accept that he was probably in shock at the estimated street value of the imported drugs. He has acknowledged that particularly after going to prison he has witnessed all kinds of crime being brought about by drugs and he feels even worse because he had almost become an accomplice.

21. The psychologist concludes that while he attempted to turn his life around, he struggled with his addiction. He maintains that he was helpless about the duration and the level or participation as threats were made that he would incur further debt if he failed to comply with instructions. He has, as the psychologist notes, demonstrated accountability, accepted responsibility and expressed remorse. He has the support of the prison chaplain and has had a lengthy engagement with Pastor (Fung a volunteer from Prison Fellowship Australia, who believes that his personality and life has been changed by God and that he has learned his lesson and he will stay away from malicious deeds and do the right things for the future of his life.

22. The letter that the offender wrote to the Court is relevantly consistent with the history given to the psychologist. He says that he is grateful to the Police for preventing him undertaking the crime and from stopping him from his mistakes. In addition to the reference from the Pastor, I have a reference from his cousin who has known him all his life and also from his girlfriend who he met in 2016.

Application of Part IB and assessing objective seriousness

23. The sentencing process must, as the Crown points out in detailed written submissions, be carried out in accordance with Part IB of the Crimes Act 1914 (Cth), so that the Court imposes sentence of a severity appropriate to all the circumstances. The role of the offender is obviously a critical consideration. The Crown and Mr Lange on behalf of the offender point to various factors that I have taken into account in assessing the role of the offender. It is clear as the Crown says, that he played an essential and important role and was a highly trusted facilitator in the importation, that is in relation to both the scheduled matter and the attempted possession of the methamphetamine. His role was indicative of a position of significant trust and responsibility for an extended period of time. He undertook a number of essential preparatory steps as part of his attempt to possess the drugs and he was trusted by the syndicate to take possession of the drugs which were imported by the company of which he was the sole facilitator.

24. The amount of the drug is a relevant, but not determinative factor. The amount involved here was more than 214 times the commercial quantity threshold.

25. In sentencing the offender, the Court is required to take into account the import offence pursuant to s 16BA(1) Crimes Act. The Court, while focussing on the primary offence, must give weight to the need for personal deterrence and the community’s entitlement to extract retribution. General deterrence is clearly a fundamental consideration so that the sentence acts to deter others from engaging in illicit drug activities.

26. The Crown correctly points to the strong case against the offender as a matter to be taken into account on the plea.

27. As is common ground, the authorities establish that the prospect of the offender being deported at the conclusion of his non-parole period is not a matter relevant to the imposition of a sentence.

28. Questions of parity obviously loom large having already imposed sentence on Lai and Wu and the sentence must not be one which would give rise to a justifiable sense of grievance amongst any of the offenders.

29. I take into account the general principles of sentencing for Commonwealth matters set out in the Crown submissions, and the cases said to be comparative including R v Zeng [2008] NSWCCA 183, R v Au (unreported NSWDC 7 Nov 2008), Chuen v R [2009] NSWCCA 116, R v Balloey [2014] NSWCCA 165, Ma v R [2010] NSWCCA 320 and R v Mo [2007] NSWCCA 61. I have taken into account the starting point for each of the sentences in those cases before the various discounts for pleas of assistance which have been set out.

30. Turning to Mr Lang’s submission on objective gravity, a number of propositions are self-evident. The offender did not, on the evidence, plan organise, lead or have an authoritative role in the importation of the syndicate. He was apparently acting under instructions at all times, and as the evidence shows, Wu was constantly reminded that Ngan was an “outside person” who is presumably outside some form of inner circle and there were expressions that caution must be taken when dealing with matters in front of him or around him. It is clear that he was not the financier. He certainly facilitated the importation in a significant way. He was apparently not the only person in contact with the overseas controller and he did not have a stake in the drugs that were intended to be imported and would not receive any share of the intended import, but rather on his unchallenged version, would receive forgiveness of a drug related debt. There is no evidence to establish that he knew the quantity of drug to be imported. There was none of the indicia one often sees in these cases of drug ledgers consistent with him being a stakeholder or owner of the drugs. There was no evidence that he was personally going to distribute any of the drugs into the community, but that is not a matter of any great significance. His role in physically receiving instructions regarding the arrival and access to the drug consignments exposed him to the risk of being caught and is inconsistent with the role of someone in the upper echelons of the drug supply network, such as a principal or financier. In short, as Mr Lange put it, he was the name and face of the recipient to enable the overseas controller in sourcing and importing the drug and facilitating its arrival and access in Australia.

31. I accept, and the Crown does not appear to challenge, that there could not be established beyond reasonable doubt knowledge on the part of the offender of the quantity being imported, although he must have, as Mr Lange conceded, appreciated that a significant quantity of drugs was coming to Australia.

32. I accept that his plea of guilty is a demonstration of his remorse and contrition.

33. The Crown does not challenge the assertion that Bugmy (Bugmy v The Queen (2013) 249 CLR 571) type factors due to his deprived upbringing should be taken into account in mitigating his moral culpability, so that it is less than the culpability of an offender whose formative years have not been marred in the way that his was.

34. I also take into account to a limited extent the fact that he was about 22 years of age and is relatively young, so that the principles of sentencing young adult offenders, highlighted by Mr Lange’s submissions, have some weight. His youth was a factor that influenced his decision to become involved in the offences and to allow himself to be subject to threats rather than extricating himself from the milieu and turning to the authorities which was a proposition quite properly put to him by the Crown.

35. I accept that Wu had a slightly more central role than Ngan and that factor should be taken into account when considering parity.

36. The orders that I make are:

1. The offender is convicted of the offence.

2. Taking into account s 16BA schedule, I impose a sentence of imprisonment of 14 years, to commence on 9 May 2018.

3. I impose a non-parole period of 9 years, 3 months, expiring on 8 August 2027.

Note - These extempore remarks were revised without access to the court file.

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Decision last updated: 01 September 2020