R v Wu

[2017] NSWDC 458

District Court

New South Wales

Medium Neutral Citation:	R v Wu [2017] NSWDC 458
Hearing dates:	10 March 2017; 12 May 2017
Decision date:	23 June 2017
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Form 1 matters taken into account on sentence imposed. The offender is sentenced to a total term of imprisonment for 12 years, comprising of a NPP of 9 years to commence on 14/5/15 and to expire on 13/5/23, and a balance of term of 3 years to commence on 14/5/24 and to expire on 13/5/27.
Catchwords:	CRIMINAL – sentence - manufacture a prohibited drug, more than large commercial quantity, methylamphetamine – Form 1 offences – possess prohibited drug, ketamine - recklessly deal with the proceeds of crime, $18,000 - knowingly participate in a criminal group directing any of the activity – clandestine drug laboratory - offender’s role – subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Thomson & Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Ming Chun Wu
Representation:	Counsel: Mr P Leask Mr I Lloyd QC Solicitors: Ms T Collison Mr M Dickinson Mr J Chan
File Number(s):	2015/00144768

Judgment

1. HIS HONOUR: The offender Ming Chun Wu appears for sentence in respect of a single offence of manufacture a prohibited drug, being more than a large commercial quantity, 11.755 kilograms of methylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided for such an offence is life imprisonment and/or 5,000 penalty units. There is also a standard non-parole provided of 15 years.

2. In respect of large commercial quantities, the threshold before the quantity classifies as a large commercial quantity is 1 kilogram. The offender manufactured 11.755 kilograms, which is very significantly in excess of the threshold.

3. When being sentenced in respect of that offence, he asks that the Court take into account three offences contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The first of those offences is possess prohibited drug, being 11.58 g of ketamine contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided for such an offence is two years’ imprisonment and/or 20 penalty units. The quantity, 11.58 g, is just less than the indictable quantity for ketamine; the indictable quantity being 12.5 g. In addition, he asks to be dealt with for an offence of recklessly deal with the proceeds of crime, being $18,000 in cash contrary to s 193B(3) of the Crimes Act 1900. The maximum penalty provided for that offence is ten years’ imprisonment. The final offence is knowingly participate in a criminal group directing any of the activity, contrary to s 93T(1A) of the Crimes Act. The maximum penalty in relation to that offence is ten years’ imprisonment.

4. The offender was committed for sentence on 5 July 2016 from Central Local Court and is entitled to a 25% discount for the utility of the plea alone, as referred to in Thomson & Houlton (2000) 49 NSWLR 383, being a plea at the earliest opportunity.

5. Having been arrested on 14 May 2015, he has been in custody in respect of these offences from that date, and only in respect of these offences.

6. The facts are agreed and they are as follows:

7. In December 2014, police attached to the State Crime Command Organised Crime Squad established Strike Force Sylvia to predominantly investigate the activities of a co-offender, Li Wang, and his involvement in the supply of large quantities of prohibited drug. As part of that operation, between 21 March 2015 and 28 April 2015, several controlled operations were conducted where Li Wang supplied to a police undercover operative, “George”, half a kilogram of methylamphetamine on each occasion. He also supplied BlackBerry devices to the undercover operative.

8. On 28 April 2015, police received information that Li Wang was to go to the Top Ryde Shopping Centre to obtain half a kilogram of methylamphetamine from an up-line supplier. Physical and electronic surveillance monitored Li Wang attending the Top Ryde Shopping Centre and the adjoining residential unit complex at 5 Pope Street, Ryde. Police were aware of a co-accused, Yuchao Qin, also known as “Michael”, who was bailed to reside at unit 813E/5 Pope Street, Ryde, which was also his listed address with the Roads and Maritime Services. The offender Ming Chun Wu also resided in the same premises.

9. The residential unit complex at 5 Pope Street, Ryde, is situated above the Top Ryde shopping complex; access to the residential building is through secured lifts with a security fob. There is also a restricted residential car park with secured roller shutters. Security fobs are allocated to specific units. As a result of the unit complex being on top of the shopping centre, the actual ground level of the complex is referred to as “Level 5”. The residential car parks are on Levels 3 and 4. The unit complex consists of seven buildings referred to as “Building A” through to ‘G” inclusive. All the residential buildings are centred on a communal area consisting of gardens and a swimming pool. Once on Level 5 persons are able to move around the communal area and approach any entrance to these buildings, however, the entrance to the individual buildings requires a security fob access.

10. Following a review of CCTV footage of the buildings and physical and electronic surveillance, investigators contend that on 28 April 2015 within the precincts of the Top Ryde shopping complex and the adjoining residential complex, half a kilogram of methylamphetamine was supplied by Qin to Li Wang for payment of $66,800.

11. At about 1 pm on Thursday, 14 May 2015, at Zetland, physical and electronic surveillance monitored the co-offender Li Wang and four other Asian males participating in the supply of 1,996.9 g of methylamphetamine to an undercover operative. The co-offender Li Wang and the four Asian males were arrested by police, cautioned and charged with numerous offences. Shortly after the co-offender Li Wang’s arrest, five search warrants were executed in Zetland, Pyrmont and Ryde.

12. At about 1.55pm on 14 May 2015, a search warrant was executed at unit 813E (on Level 8) of 5 Pope Street, Ryde, where Qin was arrested and cautioned with the benefit of a Mandarin interpreter. While Qin was in police custody, other police maintained observations in the vicinity of Level 5 of Building E/5 Pope Street.

13. About 3pm, police observed the offender Ming Chun Wu exit the unit 508E (on Level 5) at 5 Pope Street, Ryde. Wu was carrying a dark coloured satchel bag; he was arrested a short time later, cautioned and searched.

14. The offender Wu was in possession of two mobile phones. The dark coloured satchel bag contained items including numerous sets of keys with security fobs, car keys, $18,000 cash, a clear resealable bag containing light coloured granules confirmed later to be 11.58 g of ketamine, a clear plastic envelope containing $500, an AGL gas account invoiced to an Andrew Sun at unit 904E/5 Pope Street, Ryde, for the billing period of 30 December 2014 to 30 March 2015, and a Republic of China passport in the name of Chun Ming Wu.

15. Wu was transported to Hornsby Police Station, as was Qin. Wu participated in an electronic interview. During the interview, he stated that he lived in Room 813E at the Shopping Mall with a Chinese male named Michael. As previously referred to, Qin was also known as “Michael”. During the interview, police showed Ming Chun Wu a number of stills, being photographs taken from CCTV footage at the Top Ryde residential complex relating to 28 April 2015, when it is contended that half a kilogram of methylamphetamine was supplied by Qin. The photographs depicted Qin and Wu in the vicinity. Wu looked at the stills and identified himself. Wu identified Qin as his friend/brother. Wu said he sometimes drives his friend’s car which is a white Lexus. When Wu was arrested he was in possession of a set of keys, one of which opened a white Lexus with NSW registration BZI-19M registered to Qin that was parked in the car space reserved for unit 813E. Wu was asked about the white Lexus parked in that space and responded that it was Michael’s. Wu also said that Michael lived in unit 803E.

16. The offender Wu consented to a forensic procedure. Qin had also, after arrest, been transported to the Hornsby Police Station and had also consented to a forensic procedure.

17. While they were in custody police applied for and were granted a search warrant for unit 508E/5 Pope Street, Ryde, being a two bedroom unit. Upon entry police located a clandestine drug laboratory. A crime scene warrant was applied for and granted in respect of the premises.

18. Initial assessment of the premises revealed an active clandestine laboratory in numerous areas of the unit. At the time an unattended chemical process was underway.

19. Presumptive tests of a number of items confirmed the presence of a large quantity of methylamphetamine in both crystal and liquid forms within the unit. Those items were seized. A forensic chemist later confirmed that a large commercial quantity of methylamphetamine had been manufactured within the premises. He concluded that 11.159 kilograms of pure methylamphetamine was found within the premises.

20. Unit 508E contained an extensive range of specialised scientific glassware and equipment including heating mantles, reaction vessels, funnels, beakers, flasks, stirrers, PH probes and meters, vacuum pumps, thermometer, stands, clamps and joining equipment, tubing, disposable protection suits and respirator masks. There were also numerous other items including goggles, disposable gloves and ad hoc glassware such as Pyrex jugs and dishes.

21. In the garage area of the unit there were also numerous containers of liquids and chemicals, including 1 kilogram of pseudoephedrine, 60 kilograms of iodine, 78 kilograms of hypo phosphorous acid, 15 kilograms of caustic soda and numerous kilograms of solvents. These items are used in the manufacture of methylamphetamine.

22. The bathroom and shower area of unit 508E was also utilised in relation to the manufacture. The metal taps and fittings within the bathroom area were covered over with clear plastic wrap in what is believed to be an attempt to protect the metal from the corrosive effects of the chemicals being used. It was observed that the smoke alarms had been removed from the ceiling of unit 508E.

23. A number of swabs and samples were taken from items and surfaces in the unit. They were later subject to analysis. Analysis confirmed that Ming Chun Wu’s DNA was found on the interior of a nasal cup of a mask found within the clandestine drug laboratory. Further, his fingerprint was found on a glass bowl found in the laboratory.

24. A variety of suitcases of different sizes and colours were located in unit 508E. Some of these suitcases contained equipment and glassware in relation to the clandestine laboratory. An initial review of the Top Ryde residential CCTV recorded Wu moving similar suitcases from different levels of building E. Also located in unit 508E were small backpacks and a number of green coloured shopping bags. Some of these bags contained items connected to the clandestine laboratory. The CCTV footage showed Wu carrying similar green coloured environmentally friendly shopping bags from different levels of the residential complex.

25. A number of keys were in the possession of the offender Wu at the time of his arrest. Upon the execution of the search warrant at unit 508E, police used one of the keys to open the door to that unit. While police were processing the crime scene warrant at unit 508E, they also checked the set of keys that had been seized from unit 813E, the residence of Qin. One of those keys also opened the door to unit 508E.

26. Upon locating the clandestine laboratory in unit 508E police seized the clothing worn by Qin and Wu at the time of their arrest. The clothing was later analysed and traces of methylamphetamine were confirmed to be present on the clothing worn by each of Wu and Qin.

27. The crime scene warrant executed at unit 508E also resulted in the seizure of: a New South Wales Government Fair Trading bond lodgement form in the name of Andrew Sun for the unit listed as E508/5 Pope Street, Ryde, dated 16 June 2014, a residential tenancy agreement for the premises listed as E508/5 Pope Street, Ryde, with the tenant listed as Tian-Hong Yu, dated 10 March 2015, a New South Wales Government Fair Trading bond lodgement form in the name of Tian-Hong Yu for the unit listed as E508/5 Pope Street, Ryde, dated 18 March 2015, and a photocopy of a set of keys with security fobs and a key ring marked E508/5. The photocopied set of keys showed a distinct key ring and appears to be the same set of keys as found on Ming Chun Wu at the time of his arrest.

28. Clearly, the facts outline a significant clandestine drug laboratory with all the necessary supplies to produce significant quantities of methylamphetamine on an ongoing basis. The production was of course interrupted, terminated and seized as a result of the detection.

29. It was submitted by Mr Lloyd QC on behalf of the offender that the Court would find that on the balance of probabilities the offender was a low level worker in the manufacture of methylamphetamine. One of the matters relied on by Mr Lloyd in making that submission was that the offender’s DNA was only found on the interior of a single nasal cup of a mask and a single fingerprint on a glass bowl in the laboratory, this being argued as indicating that he had taken no large role because his DNA or fingerprints were not found on any of the many other items located in the premises.

30. With respect to Mr Lloyd, I find that submission verging on the ludicrous. This is a matter where common sense must be applied. There were present in the premises disposable protection suits and disposable gloves. It is well known that the manufacture of methylamphetamine in clandestine laboratories results in the emission of highly toxic fumes as well as necessitating the handling of significant quantities of chemicals that are corrosive. It can be reasonably anticipated that any person participating in the manufacture of methylamphetamine in a clandestine laboratory will avail themselves of such items as disposable protection suits and disposable gloves to ensure that their exposure to the toxic fumes and chemicals is limited, hence it is understandable that the offender’s fingerprints and DNA may have only been found on a limited number of items.

31. That he had a close association with the premises is indicated in respect of his residential location within the same building, the observations from CCTV of him carrying various similar shopping bags to bags found in the clandestine laboratory and his possession of a number of other items such as the residential tenancy agreement, the Fair Trading bond lodgement form and keys to the unit. There is no evidence before the Court as to whether the person referred to in the documents, Tian-Hong Yu, is a real or fictitious person. Similarly, there is no evidence in relation to the AGL gas invoice that was in his possession in respect of unit 904E. However, the offender was in possession of numerous sets of keys with security fobs and car keys, as well as of course the $18,000 in cash and ketamine.

32. It is impossible to conclude otherwise than that Mr Wu was intimately concerned in the occupation and use of unit 508E as a clandestine drug laboratory and that his role was at the highest level, including the actual manufacture of methylamphetamine.

33. The offender’s participation in this offence is of a very serious nature, the offence being itself above the midrange of objective seriousness in respect of an offence of this nature. 11.755 kgs of methylamphetamine is a very significant quantity, having a very substantial value, although no value has been placed before the Court specifically in relation to this matter.

34. I have so far today had to deal with an associated offender on different charges in relation to which an undercover operative paid a total of $251,000 on 14 May 2015 in relation to purchase of 2 kilograms of methylamphetamine from Li Wang. While no particular value was ascribed to the 11.755 kilograms of methylamphetamine referrable to this charge, it does remain, however, obvious that the value is very significant or substantial.

SUBJECTIVE MATTERS

35. The Court has available Exhibit MWU1, a report from Olav Nielssen, psychiatrist, Exhibit MWU2, a letter to the Court translated into English from the offender, a letter from the offender’s sister Zhi Wu, a resident in Taiwan and a single page, Exhibit MWU4, being a work programme report from the Manager of Industries, Mr Dadyal, at the Metropolitan Remand and Reception Centre, dated 18 November 2016. That report indicates that on 25 May 2015 he applied for work on:

• 1 June 2015 - Textiles,

• 22 July 2015 - Technology,

• 3 November 2015 - Facilities Maintenance,

• 26 February 2016 – Technology, and

• 3 March 2016 - Ground Maintenance.

36. He was said to be currently on a work program. That is his employment record. I take it that the references are not to single days in those occupations but to periods of employment in those various occupations from the date referred to until the date showing for the next occupation.

37. The offender was almost 24 years of age at the time of the offending, being 23 years and 11 months. He is now some 26 years of age. His sister, in her letter to the Court, indicates that she regards him well and indicates that while working in Australia he has regularly called home, expressing concern for the family’s health, in particular in respect of his father.

38. The offender did not give evidence on sentence, and in those circumstances the content of his letter to the Court must be regarded with circumspection, particularly as to his expressions of remorse and contrition and statements about the limited role that he claims to have played. That circumspection arises from the fact that letters to the Court can be given little weight in the absence of the offender giving evidence on sentence which is subject to cross-examination so the Court can form its own opinion as to his honesty or veracity in relation to any claims made.

39. To Dr Nielssen, with the benefit of an interpreter, he said:

“Basically I worked for someone else...I don’t know how to say...I was helping my friend. I thought I was helping out. I knew it was to do with drugs...I was paid but not that much because I did not do it for a long time so it’s not that much...I did what I was told...I know that they had a drug factory but I did not do anything...I just washed some equipment...”

40. He said that he did not have any kind of training in chemistry, or any knowledge of drug manufacture. Mr Wu said, “I, myself got a drug problem...I came to use more and more...ice and special K...ketamine.”

41. He said he took ice in small quantities but “quite a lot of ketamine because I could not fall asleep...I tended to use more and more.” He said that although he gambled occasionally at the casino it was not a lot and that financial difficulties were not a reason for his involvement, but he also claimed that he owed his employers money for the drugs that he used. I note that in none of the material before me does he appear to have ever identified any employer.

42. In relation to his emotional state during the period before his arrest, he responded by saying, “I was pretty bad...pretty confused...I did not know what I was doing every day...I was in a dream...I’m okay now that I have been locked up for quite a while...I actually feel better.” In the light of the location of the clandestine laboratory, the offender’s residence and the items either found on him or in either of the residences associated with him including keys to the premises, I do not accept that the offender was in any way confused about what it was that he was doing. As previously referred to in relation to one of the co-offenders dealt with this morning, I note that letters to the Court have taken on the character of appearing to be some sort of pro forma being adopted by those awaiting sentence who wish to try and mitigate the sentence without giving evidence. That is of course not to say that this was not entirely written by the offender himself.

40. He has apparently not been diagnosed with any mental illness. His early development was normal. His parents separated when he was young and he was brought up by his father. He started school at the normal time and had no learning or behavioural problems at school, although he was better at sport than academic studies. He is said to have completed the equivalent of junior high school and has no problems with literacy or numeracy. He has no further education or vocational training.

41. On being admitted to custody he was interviewed by a psychiatric nurse on reception with the benefit of the telephone interpreter but was not referred for any further treatment or assessment. He denies ever having been depressed or ever contemplating suicide. He did not report any severe anxiety or episodes consistent with panic attacks. It appears that when taking prohibited drugs for some days he may have experienced some of the common symptoms of drug induced psychosis which in each case has worn off once he ceased use.

42. In short, in relation to Dr Nielssen’s report, it indicates that he has no psychiatric problems and the report appears to have been used simply as a means of putting forward subjective matters without giving evidence of them personally. Apparently he is from the southern tip of Taiwan, being the middle of three with an older sister who worked as a nurse and a younger brother who enlisted in the Taiwanese Army. His memory of his early life was mostly happy although his mother later developed a gambling problem which caused financial problems, and his father asked her to leave when the offender was aged nine or ten, after which he then remained in the care of his father and hardly saw his mother.

43. After high school, he had several unskilled jobs before completing a year of compulsory military service and working after leaving the army as a construction labourer and a handyman. He apparently came to Australia approximately a year prior to his arrest. He had by the time of the report acquired basic English, and was hoping to improve his command of English in order to undertake some undisclosed study.

44. He has no criminal history in New South Wales although there appears to be an anomaly in his criminal history - in fact in the Corrective Services Convictions, Sentences and Appeals Report, being that he spent a period in custody between 4 April 2014 and 16 April 2014 when he was said to have been released on bail, but there is no information in relation to any offence and the criminal history has no reference to him having been charged with any offence. It would appear most likely that he was in custody for that short period of time in relation to some matter which went no further. I only refer to it because it appears to be an anomaly; it is not a matter that is adverse to him.

45. He has no criminal history either in Australia or overseas that has been brought to the Court’s attention, and I accept that prior to committing this offence he was a person of good character, with the exception, as I understand from the material before me, that he has had problems in relation to the use of prohibited drugs over a number of years.

46. It is stated by Dr Nielssen that he believes that the offender would be likely to find the experience of imprisonment more onerous than other inmates because of his very limited command of English and the isolation from his parents, who he has apparently not informed of his predicament. Dr Nielssen has expressed the opinion that he has reasonable prospects of rehabilitation.

47. As to his finding of imprisonment being more onerous than other inmates because of his limited command of English, I note that there are at present a significant number of persons imprisoned in New South Wales whose first language is common with the offender’s, although I accept that his time in custody would at least be to some limited extent more onerous for that reason, including of course the isolation from his parents.

48. In addition to the various matters that were found on him was the $18,000 in cash, which of course has no explanation other than that it may have been the result of the previous manufacture and supply of the prohibited drug, inconsistent with the suggestion or statement made to Dr Nielssen that he was not getting much out of it, or, as otherwise referred in the material before the Court, that he was really just doing it to support his own habit.

49. I am of the view that there is no acceptable evidence of genuine remorse or contrition. I accept that there is at least a reasonable prospect of rehabilitation on the basis of the offender’s current age.

50. I am unable to make a positive finding that there is a low prospect of reoffending in relation to prohibited drugs in the circumstances of his previous use over a number of years and his involvement in this very significant matter. Those who use prohibited drugs and fail to cease using them are always, when released into the community, very much at risk of returning to the use of prohibited drugs and criminal offending in order to support that habit.

51. Methylamphetamine is not distinguished except by quantity from other prohibited drugs in the New South Wales legislation. It has, however, become a very serious concern in the community as it has penetrated all levels of society and all geographic areas of New South Wales, whether they be cities, towns or villages. It has serious adverse effects in respect of those who use it and serious adverse effects in relation to the community. As to personal adverse effects, drug induced psychosis and paranoia are common complaints in relation to the use of methylamphetamine, and frequently result in acts of violence without reason. Accordingly, 11.755 kilograms of methylamphetamine makes this a serious offence.

52. For the purposes of sentencing I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I note the contents of ss 21A(2) and (3) as relating to aggravating and mitigating factors. Any sentence imposed must reflect the objective seriousness of the offence, as well as the need for both general and specific deterrence, both of which I regard as being important in relation to this offender. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Mr Lloyd QC made no submission to the contrary, anticipating that a sentence of fulltime imprisonment would have to be imposed.

53. Thank you, Mr Wu, would you please stand.

54. In respect of the offence of manufactured prohibited drug, being more than a large commercial quantity, being 11.755 kilograms of methylamphetamine, you are convicted. In sentencing you for that offence I take into account the matters contained on the Form 1, being possess prohibited drug, 11.58 grams of ketamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act, a further offence of recklessly dealing with the proceeds of crime, being $18,000 contrary to s 193B(3) of the Crimes Act, and knowingly participate in a criminal group directing any of the activity contrary to s 93T(1A).

55. Taking all of those matters into account that I have referred to, including of course the utility discount of 25%, as previously indicated at the commencement of these reasons, you are sentenced to a non‑parole period of nine years. It will commence on the day that you were taken into arrest in relation to this matter, and taken into custody, being 14 May 2015. The non‑parole period of nine years will mean that you are first eligible for parole on 13 May 2024. The balance of term is three years commencing on 14 May 2024. The balance of term will expire on 13 May 2027.

56. You need to understand that you will not automatically be released on parole at the end of the non‑parole period; you will merely become eligible for parole, and your release on or about that date will depend on your conduct in custody and the opinions of those relevant to the decision.

57. The total sentence is 12 years, with a nine year non‑parole period and a three year balance of term. You no doubt need to understand, if you do not already understand from the time you have spent in prison, that if you are in breach of parole when released, you will inevitably be returned to serve the balance of parole. It will be noted that despite your age I have not found special circumstances. This was a very serious offence and your role in it was a very serious and important role. The parole period of three years is in fact the maximum period of supervision, as provided for by the regulations and is a significant parole period in itself. I cite that as another reason for why I have not found special circumstances.

Is there anything I have omitted, or any mistake?

CHEN: No your Honour.

DICKINSON: May I hand up some short minutes of order and forfeiture orders in relation to the $18,000 cash seized from Mr Wu?

HIS HONOUR: I take it that’s not opposed, Mr Chen.

CHEN: No your Honour.

61. HIS HONOUR: I order, pursuant to s 18(1), that cash in the approximate sum of $18,000 found on the offender on 14 May 2015 be forfeited to the State.

There are your orders returned.

**********

Decision last updated: 05 March 2019