R v Wong

[2023] NSWDC 173

District Court

New South Wales

Medium Neutral Citation:

R v Wong [2023] NSWDC 173

Hearing dates:

30 May 2023

Date of orders:

30 May 2023

Decision date:

30 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Tsz Kin Wong is convicted.

2   I impose a term of imprisonment of 3 years to date from 19 October 2021 and expire on 18 October 2024.

3 Pursuant to s 20(1)(b) Crimes Act 1914 (Cth), I order that the offender be released today (30 May 2023) after serving 19 months and 11 days of the sentence on entering into a recognisance in the sum of $1,000 to be of good behaviour for 3 years. The further conditions of the recognisance that will apply for 3 years from today are that:

(a)   the offender accepts the supervision of a Community Corrections Officer;

(b)   the offender obeys all reasonable directions from Community Corrections;

4   If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

Catchwords:

CRIME — Drug offences — Commonwealth offences

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Tsz Kin Wong (Offender)

Representation:

Counsel:
A Williams (Crown)
R Keller (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Solis Lawyers (Offender)

File Number(s):

2021/121334

Publication restriction:

None

JUDGMENT

Introduction

1. Tsz Kin Wong (the offender) appears for sentence after pleading guilty in the District Court to the following offences:

Sequence H79582904	Offence	Maximum Penalty and SNPP
4	Between 27 April 2021 and 28 April 2021, attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely ketamine, contrary to s 11.1(1) and 307.6(1) of the Criminal Code (Cth)	25 years imprisonment

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

4. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. The offender entered a plea of guilty in the District Court. The matter was committed for trial on 23 March 2022. The offender pleaded guilty on 14 October 2022 at which time the offender knew what penalties I had imposed on the co-offenders. The plea of guilty has saved the need for witnesses to be called at trial and there is some utilitarian value in the plea. The Crown case was a strong one. The plea indicates remorse. The appropriate discount is 10%.

Facts

6. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. TZ resided with a family in Hornsby as part of a homestay program (the Hornsby address). Donghao Li, a co-offender, asked TZ to receive packages at the Hornsby address, to which TZ agreed. Baiqi Fu, another co-offender, provided the Hornsby address to an unknown person or persons who caused Package 383 to be sent to the address.

8. On 7 April 2021, Mr Li sent TZ a message telling him that a parcel would be delivered at the Hornsby address and that when it arrived, he should bring it to him without opening it.

9. Between 22 and 23 April 2021, the offender unsuccessfully attempted to call TZ about 10 times.

10. Sometime prior to 27 April 2021, a consignment arrived in Australia, addressed to “Tian YI” at the Hornsby address. The consignment had originated in the Netherlands. On 27 April 2021, the package was delivered to the Hornsby address, and signed for by another resident at the property. When TZ returned from school and saw the package, he messaged Mr Li on WeChat. Mr Li told TZ that the package was not his and to throw it away. At the time, Mr Li was on bail, having been arrested on 20 April 2021 in connection with the collection of a different package containing border controlled drugs.

11. TZ opened the package and noticed a white powder. Later that day, he reported it to his guardian, who took the package to police.

12. The weight of the substance in the package was 983.4 grams. Subsequent analysis showed that the substance was ketamine with a purity of 85.5%, making the pure weight 840.8 grams.

13. On 28 April 2021, the offender and TZ exchanged a number of messages at around 2:15am. The offender tried to call TZ numerous times and was able to connect twice. They had two phone conversations, one which lasted for 28 seconds and another that lasted 7 minutes.

14. At around 2:25am, the offender knocked on the door of the house where TZ resided. At the same time, he sent messages to TZ asking him to pick up his phone and informing him that his “friend” had asked him to get in touch with him.

15. TZ eventually answered his phone and spoke to the offender, who said that he was a friend of ‘Li Danghao’ and he was there to pick up a package. The offender told TZ that the package contained drugs and that if he threw them away, they would both be “in trouble”.

16. TZ told him that he had already called the police. The offender said that he was going to “run away”.

17. A short time later, the offender was given a ‘move on’ direction by police who had attended the Hornsby address after a report from TZ’s guardians about his presence at the premises. The offender told police that he had gotten an Uber from the city to the Hornsby address paid for by a friend in China who had asked him to check in on someone at that address.

Arrest and interview

18. The offender was arrested on 30 April 2021 in Haymarket. He identified that a phone on a nearby table was his. He denied involvement in any drug importations.

19. The offender took part in an interview with police, where he told them:

1. he knew “Little Bai” (Mr Fu);

2. he exchanged WeChat messages with Mr Fu on 20 April 2021 with respect to a package, whereby Mr Fu told him that he collected and delivered things, but he did not know what;

3. he lived with Fu for about a month, so had “some idea what kind of activities he was involved in’, but was not involved himself;

4. he attended the Hornsby address on the morning of 28 April, to check in on a friend of Mr Chiu’s who had disappeared. He said that he was given a phone number and the Hornsby address by a friend. He reported trying to contact the phone number but was unsuccessful. He denied knowledge of a parcel, but admitted that in a phone conversation with the person he was checking in on, that person mentioned something about a parcel with white powder in it;

5. he called someone by the name of Esther over WeChat when he was at the Hornsby address, asking if she could open the door for him when he arrived at his own residence;

6. he deleted the messages from Mr Chiu about going to the Hornsby address;

7. he called the person at the Hornsby address and that person told him that he was afraid because he had received a package. He told the person to call the police;

8. he left his previous phone at Mr Fu’s place and it had been seized by police, and his new phone had not been activated yet;

9. his old phone had been discarded because it was broken;

10. he gets money from his mother, who lives at Wiley Park;

11. he lived with his mother up until about one month prior to his arrest, when he moved out;

12. he met Mr Li once with Mr Fu. He recalled Mr Fu giving Mr Li a book at Town Hall station;

13. he used a WeChat username of ‘Prince’ with a crown emoji;

14. he was a “busybody” who liked to follow Mr Fu around;

15. he had seen Mr Fu handing over packages on two or three occasions, including on the date of his arrest; and

16. he thought something bad was happening with the packages.

20. The offender denied being the user of a WeChat account using the handle ‘Ken113’. He denied knowing Mr Li or anything about a person who lived at an address in Waitara connected to the co-offenders. He also denied knowing anything about the package delivered to the Hornsby address.

21. The offender was remanded in custody from 30 April 2021 until he was released on bail on 9 June 2022, a period of 13 months and 11 days.

Sentencing Assessment Report    

22. The offender currently resides in Wiley Park with his family.

23. He is currently unemployed and financially supported by his mother.

24. He has a minor criminal history dating back to 2019, consisting of two driving offences and one drug supply offence.

25. The offender claimed that he did not understand the serious nature of the offence and that he was “just picking up and dropping off a package”. Despite this, Mr Wong did acknowledge that he was aware that the package contained an illicit substance. He reported that he was not thinking clearly at the time due to a recent relationship breakdown that had been causing him stress.

26. He committed the offence solely for financial reasons, as he wanted more money to fund his lifestyle. He was unable to identify alternative ways that he could have made money at the time, other than commit the offence.

27. The offender commenced a friendship with his co-offenders approximately six months prior to the offence. He was aware that they were involved in criminal activity but he did not understand the full extent.

28. The author of the Report opined that the offender did not show any insight into the impact of his offending behaviour, other than the negative impact that the arrest had on his family.

29. He expressed willingness and ability to undertake intervention.

30. The offender is currently supervised on a Community Corrections Order and has been compliant throughout the process thus far.

31. The offender was assessed as at a medium-low risk of reoffending.

The Offender’s Case on Sentence

32. The offender tendered the following documents:

1. letter from the offender’s mother dated 31 March 2023.

33. The offender’s mother described the offender’s period in custody before being released on bail as quite harsh. He has severe eczema, which was not properly treated in gaol. He also contracted COVID-19 and became very unwell. The offender was in custody at a time when visitors were not allowed due to COVID-19 restrictions. He could only speak to his mother over the phone.

34. Upon being granted bail, his conditions have been quite strict. He is not able to leave the house without his mother unless he is reporting to police.

35. The offender’s mother apologised to the Court and community for his offending. She stated that the offender was very young at the time of the offences and was not able to comprehend the consequences of his behaviour, and that his experience in custody and on bail with strict conditions has taught him a lesson.

Consideration

The nature and circumstances of the offence

36. The offender involved himself in trying to secure the package from TZ through a number of means between 27 and 28 April 2021. He only became involved in trying to obtain the package after Mr Fu and Mr Li were arrested on 20 April 2021. He ultimately resorted to the extraordinary step of attending TZ’s residence unannounced in the early hours of the morning. He was persistent in his attempts to secure the package. He knew when he attended TZ’s residence that the package contained drugs. The weight of the drugs was significant being more than 280 times the marketable quantity and approaching the commercial quantity. The drugs had a high degree of purity at 85.5%. The offence was motivated by financial reward.

37. I do not accept the truth of anything that the offender said to the police in his interview for a number of reasons. First, his denial that he was involved in the importation of drugs or in trying to possess the package cannot be reconciled with his plea of guilty. Second, I prefer the evidence of TZ as set out in the agreed facts. Third, the offender took steps to avoid detection after Mr Li and Mr Fu were arrested.

38. On all of the evidence, I am satisfied beyond reasonable doubt that the offender knew that Mr Li and Mr Fu were involved in the importation of border controlled drugs and that he was involved in the enterprise with them. I infer from the agreed facts that securing the drugs in the package delivered to TZ was very important to the offender because of his involvement. Having said that, I must sentence the offender based on his attempts to possess one package.

39. I have taken into account the maximum penalty for the offence.

Contrition and remorse

40. There is no evidence that the offender is contrite. His mother has taken responsibility for his failings. There is a cultural element to that, but she should not consider herself responsible for his conduct. His plea indicates some remorse.

Deterrence

41. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.

42. There is a need for specific deterrence. The offender has another conviction for supplying a prohibited drug. The offender does not have a mental condition or addiction. He continues to be unemployed and funded by his mother. He does not seem to have many protective links to the community. There are risks of him reoffending in pursuit of financial reward.

Character, antecedents, age, physical and mental condition

43. The offender is presently 22 years of age.

44. He has convictions for driving matters and a conviction for supplying a prohibited drug. The latter offence was committed before his arrest for these matters but he was not dealt with for it until 9 March 2022.

45. He lives at home with his mother and is supported by her. He is unemployed. He suffers from eczema which was poorly treated when he was in custody. He also contracted COVID-19 in custody and was very unwell with it.

46. There is no evidence that the offender suffers from a mental condition.

Prospects of rehabilitation

47. There is very little information from which I can assess the offender’s prospects of rehabilitation. His mother has reported that being in gaol had a salutary effect on him. She also reported that he was very young at the time of the offence and did not understand the consequences of his actions. I am not satisfied on the evidence that the offender has accepted responsibility for his actions. I am unsure as to what he has told his mother about his involvement. His representations to the police were untrue and I do not accept that he was frank in his representations to the author of the SAR.

48. He remains unemployed, but that could be a result of his strict bail conditions.

49. He is young and that supports greater weight being placed on rehabilitation. In his current circumstances, he would benefit from a lengthy period of supervision to assist him to lead a productive, prosocial life.

Comparable sentences

50. I have taken into account the cases referred to me by the parties and I note the limitations of that exercise.

Pre-sentence custody

51. The offender has served 13 months and 11 days of pre-sentence custody. Thereafter he has been the subject of strict bail conditions akin to house arrest from 8 June 2022 to date. This equates to about a further 6 months of full-time custody. I will backdate the sentence imposed to 19 October 2021 to reflect that period.

52. I have taken into account the restrictions placed on prisoners in New South Wales in response to the COVID-19 pandemic. I am satisfied that they are likely to be imposed for some time into the future. I am also satisfied that those restrictions made the offender’s time in custody more onerous that usual.

Parity

53. I have taken into account the sentences that I imposed on Mr Fu, Mr Li and Mr Lock arising from this drug operation.

54. The involvement of the offender is more closely related to Mr Fu and Mr Li, although I note that they were charged with multiple and more serious offences. Against that, they both had far superior subjective cases.

Penalty

55. Tsz Kin Wong is convicted.

56. I have had regard to s 17A Crimes Act 1914 and I am satisfied having considered all other alternatives, that no penalty other than imprisonment is appropriate.

57. I impose a term of imprisonment of 3 years to date from 19 October 2021 and expire on 18 October 2024.

58. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth), I order that the offender be released today (30 May 2023) after serving 19 months and 11 days of the sentence on entering into a recognisance in the sum of $1,000 to be of good behaviour for 3 years. The further conditions of the recognisance that will apply for 3 years from today are that:

1. the offender accepts the supervision of a Community Corrections Officer;

2. the offender obeys all reasonable directions from Community Corrections;

59. If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

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Decision last updated: 30 May 2023