R v Yeung

[2018] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:	R v Yeung [2018] NSWDC 107
Hearing dates:	16 March 2018
Date of orders:	16 March 2018
Decision date:	16 March 2018
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a head sentence of 7 years with a non-parole period of 4 years.
Catchwords:	CRIMINAL LAW – Sentence – Import commercial quantity of methylamphetamine – Reckless – Non-exculpatory duress – Implied threats to family.
Category:	Sentence
Parties:	The Crown Fu Ho Yeung
Representation:	Counsel: B Aniwell – The Crown H Marraoui – The offender   Solicitors: Commonwealth Director of Public Prosecutions Aquila Lawyers – The offender
File Number(s):	2015/213997

Judgment

1. HIS HONOUR: A little while ago Mr Yeung faced trial on an indictment containing three counts. Quite a way in to the trial, indeed partway through his cross-examination by the Crown, an issue arose which required the jury to be discharged. Following that the Crown withdrew counts 1 and 3 and the offender pleaded guilty to count 2.

2. He thus now stands to be sentenced for an offence that on or about 24 June 2015 he imported a commercial quantity of methamphetamine. That is of course a very serious offence, it carries a maximum penalty of life imprisonment. The quantity involved is significantly greater than the commercial quantity, indeed about eight times that quantity which would expose him to life imprisonment.

3. It almost goes without saying that had the offence succeeded great harm would have been caused to individual members of the Australian community and our community itself.

4. The offender came to Australia in circumstances I will outline but I am satisfied on the balance of probabilities that when he came to Australia he did not intend to commit a criminal offence, however after he had been here for some time he agreed to participate in the importation of the methamphetamine.

5. On 24 June 2015 a package arrived from Hong Kong. The recipient was named as Nane Lvan Chan at the offender’s address. Attempts were made to deliver the package but as no one was at home it was not delivered and left for collection at an Australia Post outlet. Police were listening to telephone calls. They heard telephone calls between the offender and an unidentified male about how the package could be collected. The problem was, or at least one of the problems was, that the offender had no documents to suggest that he was either the named recipient or acting on that person’s behalf, so although the offender went to Australia Post outlet twice to collect the package he was unsuccessful on each occasion.

6. The offender has no prior convictions. He is at present 24 years of age. He was in his early 20s when he committed this offence. He was working in Hong Kong as a removalist when he was injured at work. He appears to have been treated in a hospital there but on his release from hospital, he gave evidence, he suffered from significant headaches and he was treated by acupuncture, a Chinese doctor and Western medication. He claims to have been taking an inordinate number of tablets, swallowing anything up to 12 at time when things were bad.

7. The Crown challenged Mr Yeung as to the extent of his medical expenses, for reasons I will get to in a little while, but his claim to have taken so many tablets has to be looked at in the light of the findings of a forensic psychiatrist who interviewed Mr Yeung for the purposes of today’s proceeding. Mr Yeung has an attitude towards illness which suggests he might well be the sort of person who takes an inordinate number of tablets in order to treat illnesses he believes he has, and of course if he did take that many tablets the possibility of adverse side effects, including significant headaches cannot be excluded.

8. It was the offender’s version of events that having racked up significant indebtedness to his friends for his medical bills they said they would lend him no more money and that he was then introduced to a man he knew as ‘The Boss’ who lent him 140,000 Hong Kong dollars. That money went as follows, $10,000 was an “administration fee”, $60,000 was paid back to his friends for the loans they had made to him, and $70,000 was to be kept by Mr Yeung for future medical expense. However he said that shortly after the loan was made to him and after he had made some monthly payments The Boss told him that he was now required to repay the entire sum in one go. Mr Yeung of course protested that he could not do that, the response from The Boss being that he should approach his family. Mr Yeung said that he did not want to approach his family because he did not want them to know of his illness and that when The Boss showed him a photograph of the front door of the apartment block where his family lived he became concerned. It was in those circumstances that he agreed to The Boss’s proposal that he go to Australia to work for him.

9. As I said earlier, despite obvious suspicions I am not satisfied that he came to Australia with the intention of committing an offence whilst he was here, but when The Boss told him that he was to be involved in the collection of a package he well knew, I am satisfied, that he was being asked to do something illegal.

10. Mr Yeung claims that he only really knew that the package contained drugs, specifically methamphetamine, after he was arrested but I have no doubt at all that Mr Yeung knew full well that there was a very strong possibility that the package he was asked to collect contained drugs. Although recklessness and knowledge are sufficient to establish the offence Mr Maarraoui asks me to sentence the offender on the basis that he was reckless. The level of his belief was such that his belief approached knowledge, so that there is little distinction between a person in Mr Yeung’s position and a person who well knew that the package he was collecting contained drugs.

11. Mr Yeung, through Mr Maarraoui, claims that he was acting under duress, what is called ‘non‑exculpatory duress’ because it is not suggested that he was not guilty of the offence but it is suggested that the sentence that I would otherwise have imposed upon him should be reduced because of the circumstances in which he agreed to collect the package. It is for the offender to satisfy me on the balance of probabilities that there was an aspect of duress in the decision he made to do what he did.

12. The Crown in her submissions made to me today referred to eight aspects which suggest the implausibility of the offender’s story. Some of those factors, I agree, would have been implausible were Mr Yeung seeking a loan from Westpac or the National Australia Bank but he was not. He was not seeking a loan from a financial institution and many of the factors become much less implausible when it is appreciated that the money was coming from a private, and it has to be said somewhat shady, individual.

13. I am satisfied on the balance of probabilities that implied threats to his family were made and that when he decided to commit the offence he was influenced in that decision by the implied threat which had been made. However, as the Crown accurately pointed out, that does not necessarily mean that there is a significant reduction in sentence. I accept the Crown submission that the threats were “vague” and “unremarkable”. Showing someone a photograph of a front door of a large multistorey block of units is very different from specific threats to injure or even kill members of the family. In any case, again as the Crown pointed out, general deterrence remains of importance. The criminal law cannot throw up its hands and say that it is all right then when offenders become involved in crimes because of threats made to them or their families. Indeed, to do so would be simply to encourage further threats being made.

14. Whilst I do accept that there was an element of duress operating on the offender’s mind when he decided to commit this offence the reduction in sentence that results, while measurable, is not such as to lead to a sentence which fails to reflect the objective gravity of his conduct.

15. I turn now to a consideration as to the discount which I will apply because of the offender’s willingness to assist the authorities. In his written submissions Mr Maarraoui said that it should be something in the order of 25%. It has to be remembered that the offender knew at all times that he was guilty of count 2. When I say ‘count 2’ of course I mean the count to which he has ultimately pleaded guilty. Although where there were plea negotiations where the offender made an offer to plead to count 2,that was always conditional on counts 1 and 3 being terminated. It may not have been forensically wise for the offender to plead guilty to count 2 and face trial on counts 1 and 3 but when one looks at a willingness to facilitate the course of justice what is forensically wise is somewhat beside the point. The sentence I impose upon the offender will be about 15% less than it would otherwise have been.

16. I mentioned before Dr Roberts’ psychiatric report. There is no doubt that the offender suffers from some form of mental disorder, probably a personality disorder. He has engaged in self‑mutilation on occasions. In Hong Kong he was apparently told by doctors not to be so silly but that was scarcely likely to have any positive effect and I mentioned earlier his apparent obsession with illnesses he perceives himself to suffer from. I accept that his mental state made him much more susceptible to pressure from The Boss than might otherwise have been the case. Despite that, as I mentioned earlier, general deterrence is of importance even where the offender’s mental state does mitigate that factor somewhat.

17. I mentioned earlier, also, that the offender was in his early 20s at the time of his offending. It is notorious that people do things in their youth that they would not do as an adult. Although he was very much an adult, having turned 18 in the eyes of the law, it is accepted that maturity does not fall upon a person immediate their 18th birthday is reached.

18. Mr Maarraoui suggested that I should take into account that the offender would do his time in custody harder because he is serving a sentence in a foreign country. He gave evidence that he had had only one visit from his family in the two and half years he has been in custody, although he is able to make twice weekly phone calls to them. He is also serving a sentence in a country where he has trouble understanding the language. To his credit he has been working hard whilst in custody on learning English and can now, he says, get by. In any case not too much can be made of the circumstance that the offender is serving a sentence in a foreign country, it was his decision to commit the offence in Australia knowing that if he was detected that is where he would be serving his sentence.

19. A copy of some notes from those looking after him and being responsible for him in prison was tendered today. Those notes show that he is doing well in custody assisting them but they also support the circumstance that he has medical and psychological difficulties and worries about his family. Indeed, for almost all his time in custody he has been held at the Long Bay Prison Hospital rather than as part of the general prison population.

20. The offender’s role of course is important. He was clearly to be the receiver of the package, a person who would pass it on to someone else, and who was to be paid 50,000 Hong Kong dollars, something approaching four months wages that he would have received as a removalist in Hong Kong. But the offender was not just the mere recipient of instructions from The Boss, he also discussed with The Boss, particularly in one telephone call, how the package could be successfully delivered to him despite him not having the name of the recipient. In that call he told The Boss things which would aid in them not being detected, such as how to get a fake identification. So this was not a case where instructions were only going one way.

21. There is one matter I should have dealt with earlier, it concerns the Crown submission that the offender came to Australia specifically to commit an offence. The Crown relied on a conversation in which the offender was asking about whether the job involved “sweet stuff”. I must say it is hard to draw any conclusions from that, particularly when those words were translated from Cantonese to English, and when the offender was asked about them in the witness box they were translated back to Cantonese for the offender to explain in Cantonese what they meant, which was then in turn translated back to English. In such circumstances it is hard to draw the conclusion that the Crown wants me to from what the offender said.

22. The Crown provided me, as is usually the case in Commonwealth matters, with some cases said to be comparative. I find such comparative cases very helpful. I am able to take note of similarities and differences between various cases, and make allowances for the differences, when determining an appropriate sentence to impose upon a particular offender. I have been able to do that in the present case. The cases are helpful because they assist sentencing Judges to avoid idiosyncratic decisions which would lead to inconsistent sentencing which is, as the High Court noted many years ago now, a “badge of unfairness”.

23. It is clear that a full-time custodial sentence is required.

24. I impose a sentence to date from 21 July 2015 the day on which the offender went into custody.

25. He is sentence to imprisonment for a period of seven years with a non‑parole period of four years. That non-parole period will expire on 20 July 2019 on which day Mr Yeung is eligible to be released to parole.

26. Mr Yeung, I need to explain that sentence to you. The date that is most important to you is the date which is the earliest you can be released, that is 20 July 2019, a year and four months from today. So you have got to do at least a year and four months more in custody. Whether you are released on 20 July 2019 is not a decision that I make. It is up to the parole authorities. Do you understand, sir?

27. OFFENDER: Yes.

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Decision last updated: 26 April 2018