R v Xu

[2017] NSWDC 434

District Court

New South Wales

Medium Neutral Citation:	R v Xu [2017] NSWDC 434
Hearing dates:	26 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is sentenced to imprisonment for a period of 5 years with a non-parole period of 2½ years. Matter on 16BA Form taken into account
Catchwords:	CRIMINAL LAW – Sentence – Importation of commercial quantity of ephedrine – Accepting delivery of consignments of goods from China
Legislation Cited:	Commonwealth Crimes Act.
Category:	Sentence
Parties:	The Crown Rui Xu
Representation:	Counsel: Mr G Jones (Offender)   Solicitors: Commonwealth Director of Public Prosecutions George Sten & Co (Offender)
File Number(s):	2016/152052

Judgment

1. HIS HONOUR: It would appear from the number of matters that come before this Court relating to the importation of ephedrine from China that that drug is easy to obtain in China and that it is needed in Australia for the manufacture of methylamphetamine. For that reason, importation of that drug into Australia carries with it a very serious penalty, a maximum penalty of 25 years’ imprisonment. That is a reflection of the seriousness with which the commonwealth parliament says that offences such as those I am about to describe should be treated.

2. The offender Xu was a student in Australia. He had come here to further his education, however he dropped out. His parents, who were back in China, were supporting him and he was reluctant to inform them that he was no longer a student and indeed he did not do so. He got involved with gambling and through associates learned that a financial opportunity presented itself. He could agree to receive consignments sent from China, unpackage the contents of those consignments and take them to other people. And so it was that the offender committed the two offences I will now describe.

3. A package was intercepted by the authorities on 12 May 2016. An examination of that package revealed that there were 42 plastic bowls consistent with the declaration that the package contained dog bowls. One bowl was deconstructed and four plastic bags of an off-white crystallised substance were located inside; presumptive tests suggested that was ephedrine. Accordingly there was a full deconstruction of all of the package, which revealed 8.162 kilograms of the off-white crystallised substance, which later proved to contain 6.89 kilograms of pure ephedrine.

4. The package was reconstructed and it was, after one failed delivery, eventually delivered to the offender. He gave a false name and signed that false name on the delivery sheet. He then took the package with him, took out the dog bowls, put them inside a suitcase he had purchased for the purpose, threw out the packaging and went to the Doncaster Hotel where he played poker machines for about an hour. He was arrested shortly after he left the property where he was living, apparently on his way to deliver the substance to someone else.

5. After his arrest he spoke to police. He gave them a number of details and effectively made full admissions to what he was doing. He admitted making a relevant telephone call to Australia Post, accepting delivery of the consignment and unpacking it. He admitted that he was to take the consignment to a particular address and that his room at 139 Anzac Parade, which is where he was when he received the package, was paid for for the purpose of him collecting the consignment. He told police he was to be paid $1,500 and knew there was something illegal in the consignment. He also told police that he was expecting another consignment to be delivered to the same address on 19 May 2016.

6. The importation I have just described is the subject of the offender’s plea of guilty on an indictment. An indictment had to be presented despite the offender’s plea of guilty in the Local Court, because attached to that offence is another offence on a schedule under s 16BA of the Commonwealth Crimes Act. That offence related to the consignment that the offender told police about when he was arrested.

7. Another consignment, this time apparently containing folding buckets, was imported into Australia. It was to be delivered to the offender, and again he was going to be responsible for unpacking the folding buckets and taking them to his superior in this drug importation enterprise. An examination of that consignment revealed 10.187 kilograms of a substance which contained within it 8.33 kilograms of pure ephedrine. Each consignment contained substantially more than the commercial quantity applicable to the drug ephedrine.

8. One particularly serious aspect of this offence is that the offender is not a drug user and that he did what he did purely for a financial reward. He knew that there was something illegal inside the consignments, clearly that was most likely to be illegal drugs of some description, and yet the offender was prepared to play an essential role in the importation of the relevant packages just so he could make some money out of it. As I have said, this is a particularly serious aspect of the offender’s wrongdoing.

9. The offender was born in China. His parents were distant towards him, both emotionally and geographically. He was brought up by his grandparents who then lived in Shanghai, some two hours away from where his parents lived. His parents seem to have placed a high value on education, and after the offender did not do well enough in his final examinations in China to go to university there, he was sent to Australia to continue his education. He enrolled in St Paul’s International College in the Southern Highlands for three years and on graduation he achieved a place in the finance and management degree program offered by Curtin University in Sydney.

10. After 18 months, because he was not terribly interested in the course, he withdrew, by which time he was 20 years of age. He was too ashamed to tell his parents what he had done. He was unwilling, therefore, to tell his parents when he ran out of money because he had already disappointed them by not achieving a place in a prestigious university in either China or Australia.

11. He did get some work after he left university, initially working at Star City, but he did not last long there because his income was meagre. He was unemployed at the time he committed the offences I have described.   

12. His plea of guilty, consistent with his early admissions to police, came at the earliest opportunity. His willingness to facilitate the course of justice must therefore be recognised. He also assisted the authorities, albeit to a limited degree, when he told them about the second consignment, and told them details of where he was to take the packages. Reflecting both his assistance and his willingness to assist the course of justice, the sentence I imposed upon him will be about 35% less than it would otherwise have been.

13. The offender has no previous criminal history. He has been in custody since his arrest on 17 May 2016. He is of course serving his sentence away from his family, although his father has been able to visit him, perhaps because his father is an airline pilot and may therefore find international travel more attainable than would otherwise be the case. He has not seen his mother, however, because she does not even know what has happened to him.

14. Not too much of course can be made of the fact that Mr Xu is serving his sentence in a foreign country. After all, he went into this very much with his eyes open, and can have been under no misapprehension about what would happen to him if he was detected as a person who received illegal consignments imported from overseas, and then passed them on to someone else.

15. Both the Crown and Mr Jones assisted me by referring to comparative cases, although of course, as they freely acknowledge, no two cases are identical. Nevertheless, making allowances for the differences which are both obvious and those that were not obvious which were explained to me, the comparative cases have been of considerable assistance.

16. Clearly the offender was not high up in this enterprise. He was acting at the directions of others. On the other hand, he played an essential role. Those high up in drug importation enterprises rely on people like Mr Xu, sometimes young and often naïve people, to perform an essential role. It is notorious that the organisers of such activities rarely put themselves in a position where they can be identified as being involved in illegal importations. They require people like Mr Xu to do that work for them. But to say that there are people more seriously involved is not the same thing as saying that Mr Xu’s conduct was not seriously criminal, it clearly was,

17. Mr Jones submitted that the offender’s time in custody bail-refused would reflect an appropriate non-parole period. I disagree. For the reasons I have identified, a substantial period of imprisonment is required and the period of one year and ten days as a non-parole period would fail to reflect the objective gravity of Mr Xu’s misconduct. I impose sentence as follows.

18. Taking into account the matter on the s 16BA schedule, I impose a sentence of imprisonment consisting of a non-parole period of two and a half years with a head sentence of five years to date from 17 May 2016. The non‑parole period will thus expire on 16 November 2018, which is the first day on which Mr Xu will be eligible for parole.

19. Mr Xu, I need to explain that sentence to you. Would you stand up, please? Mr Xu, you must do at least two and a half years in custody. That is dated from the day you were arrested. So the first day on which you can be released is 16 November 2018, that is next year. Whether you are released on that day or not is not a matter for me, it is a matter for the parole authorities. Once you are released you will still be serving your sentence until five years have elapsed, that is 16 May 2021, and if you misbehave or commit further offences you can be returned to custody to complete your sentence, do you understand that? If you have any questions that you wish to ask then Mr Jones will no doubt be only too happy to answer them, but if you have any questions you want to ask me about the sentence, if you do not understand something, let me know now.

20. OFFENDER: After I serve the portion of my sentence which is two and a half years I’ll get deported straight away after that or--

21. HIS HONOUR: I expect so, but that’s not a decision for me. So it may well be that as soon as you are released the immigration authorities will send you back to China, but that’s not a decision for me.

22. OFFENDER: What’s the other case if I’m not deported straight away?

23. HIS HONOUR: If you’re not deported you will be serving a sentence in the community in Australia, but you won’t be in custody once you’re released by the parole authorities.

24. OFFENDER: All right, thank you.

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Decision last updated: 04 July 2018