Regina v Chun Hing Law and Brian Alexander Kuan

[1999] NSWSC 286

CITATION:	Regina -v- Chun Hing LAW and Brian Alexander KUAN [1999] NSWSC 286
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	70022/97; 70223/95
HEARING DATE(S):	R v Law -18/03/98,19/03/98,20/03/98,23/03/98,24/03/98, 25/03/98, 26/03/98, 30/03/98,31/03/98,01/04/98,02/04/98,03/04/98, 06/04/98,07/04/98, 08/04/98, 09/04/98, 14/04/98, 15/04/98, 16/04/98, 17/04/98, 20/04/98, 21/04/98, 22/04/98, 23/04/98, 24/04/98, 23/06/98, 19/10/98, sentence - 31/03/99 R v Kuan - 16/03/98, 23/06/98, 19/10/98,20/10/98, 21/10/98 - sentence 31/03/99
JUDGMENT DATE:	31 March 1999
PARTIES :	Regina Chun Hing LAW Brian Alexander KUAN
JUDGMENT OF:	Ireland J

COUNSEL :	Crown - Mr R F Sutherland/Mr M Wigney Law - Mr J Spencer Kuan - Mr WP Brewer
SOLICITORS:	Crown - Commonwealth Director of Public Prosecutions Law - Naomi Hamilton Kuan - Neil J O'Connor & Associates
CATCHWORDS:	Sentence - Multiple importations of heroin - S 233B(1) Customs Act (Cwth) - most serious class of case - sentence of imprisonment for life - no adjustment of sentence under S 16G Crimes Act, 1914 (Cwth) - Vanit -v- R 149 ALR 1 applied.
ACTS CITED:	Customs Act, 1901 (Cwth) S 233B(1) Crimes Act, 1914 (Cwth) - S 16G
DECISION:	R -v- Chun Hing LAW - Life imprisonment; R -v- Brian Alexander KUAN - 18 yrs reduced to 12 yrs (S 16G Crimes Act (Cwth)) - non parole period 7 yrs

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL LAW DIVISION

IRELAND J

Wednesday, 31 March, 1999

70022/97 - REGINA -v- Chun Hing LAW
70223/95 - REGINA -v- Brian Alexander KUAN

SENTENCE

1 HIS HONOUR: On 24 April, 1998 the prisoner, to whom I shall refer as Chun Hing Law, following a trial by judge and jury of twelve, which commenced on 18 March, 1998, was found guilty and convicted on a charge that between about 1 December, 1993 and about 13 January, 1995 at Sydney and elsewhere did conspire with Joseph Law Ling (Joseph Law), Alan Tam, Mao Huang Tung, Brian Alexander Kuan and others to import into Australia not less than the commercial quantity of heroin in contravention of S 233B(1)(cb) of the Customs Act, 1901 (Commonwealth).
2 On 16 March, 1998 the prisoner, Brian Alexander Kuan, pleaded guilty to a charge that between about 1 December, 1994 and about 13 January, 1995 at Sydney and elsewhere was knowingly concerned in the importation into Australia of not less than the commercial quantity of heroin in contravention of S 233B(1)(d) of the Customs Act, 1901 (Commonwealth).
3 On 13 May, 1998 Kevin Chi Ho pleaded guilty to a charge of attempting to possess a prohibited import, namely not less than the trafficable quantity of heroin in contravention of S 233B(1)(c) of the Customs Act, 1901 (Commonwealth).
4 The prisoners Chun Hing Law and Brian Alexander Kuan are for sentence today.
5 On 3 March, 1997Alan Tam Yu Wah (Alan Tam) pleaded guilty to a charge of conspiring to import not less than the commercial quantity of heroin and on 10 March, 1997 Mao Huang Tung pleaded guilty to the same charge.
6 On 23 April, 1997 Yu Tit Hoi, a co-offender of the prisoner Kevin Chi Ho, pleaded guilty to a charge of attempting to possess a prohibited import, namely not less than the trafficable quantity of heroin.
7 On 5 September, 1997 Barr J proceeded to sentence those three offenders, Alan Tam, Mao Huang Tung and Yu Tit Hoi.
8 Between January, 1994 and January 1995 there existed a criminal organisation which had as its objective, multiple importations of heroin into Australia.
9 An appreciation of the part played by the two prisoners of their criminality calls for an examination to some degree of the operation of the organisation in question.
10 The members of the group involved in the importation were predominantly Hong Kong Chinese, who were resident in Canada, and who had connections in mainland China, Hong Kong and Bangkok.
11 In each of January, July, August and November of 1994 and in January of 1995 goods were consigned from Bangkok to Sydney. The procedure adopted regarding each consignment bore a number of identical features. The crates containing the imported goods all emanated from the same consignor in Bangkok and were forwarded through the same carrier and the same shipping company.
12 The same airline was used and the same freight and customs agent in Sydney.
13 The cases in which the goods were packed were similar in appearance and the goods themselves had much in common. The glass pictures imported in July and November 1994 and January 1995, which were described as “glass sculptures” in which the heroin was concealed, were virtually identical in appearance.
14 Prior to each importation an Asian man, not a resident of Australia, arrived in Sydney and obtained a lease of premises to which the goods, in due course, were consigned.
15 Neither the man who obtained the lease nor anybody else lived in the premises at any relevant time.
16 Following the consignments of January, July, August and November 1994 substantial sums of money were transmitted from Sydney to bank accounts in Hong Kong and Canada. Although the total sum transmitted was more than $500,000, individual sums were always less than $10,000. Transmissions of $10,000 or more are required to be notified to the Australian authorities under the provisions of the Financial Transaction Reports Act, 1988. These circumstances, together with a large body of other evidence, demonstrate meticulous care and planning.
17 Persons involved in these activities during 1994 included Joseph Law, Alan Tam and the prisoner Chun Hing Law.
18 Heroin may be taken to have been imported in all the shipments. Alan Tam gave evidence to this effect and apart from the facts attending the importation of heroin in January 1995, traces of heroin were found in the premises to which the November 1994 consignment was delivered.
19 The persons concerned with the importations had various functions. One man would take delivery of the consignments. He was the man who entered Australia and rented the necessary premises. However, the man concerned never lived in the premises and by August 1994, the organisation had obtained Unit 86, Waldorf Apartments, Liverpool Street, Sydney for the accommodation of whoever was involved in the importation from time to time. Other persons concerned had a role in supervising the importation. They also would travel to Sydney from overseas for the purpose.
20 Alan Tam became familiar with the modus operandi of the organisation during 1994. He entered Australia shortly after each of the importations that occurred during that year and transmitted money overseas in the manner I have indicated. He was responsible for the transmission of at least $284,000 of the $540,000 or so that has been detected as having been transmitted. The sum of $131,000 went into accounts in Alan Tam’s name. He was in Australia from 19 to 22 March, 26 July to 13 August, 25 August to 22 September and 25 November to 4 December, 1994. Although, like Joseph Law, Mao Huang Tung, and the prisoner Chun Hing Law, he resided in Toronto, Canada he travelled to Sydney on these occasions from Bangkok or Hong Kong. Contact took place during 1994 between Alan Tam, Joseph Law and Chun Hing Law by means of a mobile telephone acquired by Alan Tam. During his November visit, Alan Tam travelled with Joseph Law. Police surveillance of Joseph Law on 5 December, 1994 led to the discovery of the Waldorf unit. These premises were originally rented by Chun Hing Law.
21 Following a report from a bank officer, police conducted surveillance of Joseph Law on 5 and 7 December, 1994 and as a result, identified the Waldorf apartment. Police conducted a covert search of this apartment on 13 December and located a number of items, including electronic scales, which suggested that Joseph Law’s presence in Australia was related to narcotics.
22 A listening device installed in the Waldorf apartment alerted police to the prospect of a further importation of narcotics and an extensive operation was mounted by the Australian Federal Police and the New South Wales Police Drug Enforcement Agency.
23 The brief facts relating to the 1994 importations are the following:-
24 On 10 January, 1994 a shipment of seven wooden cases, said to contain “ceramic dolls and vases” was consigned from Zega Trans Ship Co Ltd, Bangkok (“Zega”) to “Mr Joseph Law, Unit 30, 1-19 Allen Street, Ultimo, Sydney, Australia”.
25 The shipment arrived in Sydney on 12 January, 1994 on an Olympic Airways flight from Bangkok.
26 Joseph Law arrived in Sydney on 30 December, 1993 and had electricity connected to the Allen Street unit in his name.
27 The consignment was delivered to the Allen Street unit on 17 January, 1994.
28 On 8, 9 and 10 February, 1994, Joseph Law telegraphically transferred a total of $25,256.00 to accounts in Canada. He left Australia on 14 February, 1994.
29 In 1994 Chun Hing Law and Joseph Law were in Sydney from 8 April to 22 April. While in Sydney, Chun Hing Law applied to rent a unit at 47/344 Bulwarra Road, Ultimo and signed the lease documents on 21 April, 1994. He gave as his current address “30/1-19 Allen Street, Ultimo”.
30 Between 19 and 21 April, 1994 Chun Hing Law and Joseph Law telegraphically transferred $36,529 to accounts in Hong Kong and Canada.
31 On 8 July, 1994 a shipment of three wooden crates, said to contain “glass sculptures”, was consigned by Zega in Bangkok to “Mr Chun Hing Law, 47/344 Bulwarra Road, Ultimo, Sydney, Australia”. These crates arrived in Sydney on 9 July, 1994 on an Olympic Airways flight from Bangkok.
32 The items in this shipment were examined by customs officers who found that a cardboard backing to the pictures, when removed, revealed a rough textured sandpaper-like surface. Scrapings from this surface, taken by customs officers and tested, did not disclose narcotics. The sandpaper surface was not lifted or removed. These pictures were identical in nature to those imported in January 1995 addressed to Brian Kuan.
33 The evidence of Alan Tam, together with the overwhelming inference to be drawn, makes clear that the July consignment contained heroin.
34 Alan Tam gave evidence that he was recruited into the group in early 1994 and subsequently recruited Chun Hing Law to be the consignee for importations containing heroin once he, that is to say Alan Tam, had made the decision to no longer involve himself in the direct handling of the imported narcotics.
35 Chun Hing Law arrived in Sydney on 11 July, 1994 and on that same day, arranged for electricity to be connected to the Bulwarra Road, Ultimo premises, which he had leased during the prior visit by him in April. The crates were collected from Ansett by Chun Hing Law on 14 July, 1994.
36 Two days later, on 16 July, 1994, Joseph Law arrived in Sydney and stayed until 23 July. Alan Tam arrived in Australia on 26 July, 1994. Between 2 August and 11 August, 1994 Alan Tam and Chun Hing Law telegraphically transferred a total of $56,711.00 to bank accounts in Hong Kong and Canada. Alan Tam left Australia on 13 August, 1994.
37 On 12 August, 1994 Chun Hing Law rented Unit 86, in the Waldorf Apartments, to which I have previously referred. He used the name “Andy Law” on the lease documents and had a telephone connected to the unit in that name.
38 On 15 August, 1994 a shipment of two wooden crates said to contain “glass sculptures” was consigned by Zega in Bangkok to “Mr Chun Hing Law, 47/344 Bulwarra Road, Ultimo”. The shipment arrived in Sydney on 17 August, 1994 on an Olympic Airways flight from Bangkok. The two crates were delivered to Chun Hing Law at the Bulwarra Road address on 23 August, 1994.
39 Alan Tam arrived in Sydney on 25 August, 1994. Between 23 August and 20 September, 1994, Alan Tam and Chun Hing Law telegraphically transferred to Hong Kong or purchased overseas drafts totalling $107,299.99.
40 On 2 September, 1994 Alan Tam subscribed to a mobile telephone service, the records of which disclose that this mobile phone was used extensively during September, 1994 as a contact point with the mobile phone and the mobile telephone service purchased and subscribed to respectively by Chun Hing Law on 25 July, 1994.
41 Chun Hing Law left Australia on 18 September, 1994 and Alan Tam left Australia four days later on 22 September.
42 On 4 October, 1994 Joseph Law arrived in Australia, remaining only two days during which he telegraphically transferred $35,812.11 to accounts in Hong Kong.
43 Regarding the November, 1994 importation, Chun Hing Law returned to Sydney on 11 October and remained until 17 October, 1994.
44 During this time he rented premises at 4/183 Bridge Road, Glebe and paid two months rent in advance. He returned to Australia once more on 13 November, 1994 and arranged for electricity and the telephone to be connected to these Bridge Road Glebe premises.
45 On 10 November, 1994 a shipment of two wooden crates, said to contain “13 glass sculptures” was consigned by Zega in Bangkok to Chun Hing Law at the Bridge Road, Glebe premises giving as the contact telephone number the mobile telephone service subscribed to by Chun Hing Law on 25 July, 1994. The shipment arrived in Sydney on 12 November, 1994.
46 This shipment was once again inspected by customs officers, who noted that the goods were relatively identical to the pictures imported in July, 1994, and those subsequently imported in January, 1995. The testing of scrapings from the sandpaper backing conducted by customs officers was once again negative.
47 That this shipment contained heroin was not only the subject of direct evidence by Alan Tam, but was also supported by the fact that in January 1995, following the arrest of Alan Tam, Mao Huang Tung, Brian Alexander Kuan, Yu Tit Hoi and Kevin Chi Ho, police examination of the premises 4/183 Bridge Road, Glebe disclosed the crates which had been broken open, together with glass pictures from which the backings had been removed, and upon which signs of the carbon paper which had been wrapped around the secreted packages were clearly visible. Scientific analysis of dust found in a vacuum cleaner on the premises, dust vacuumed from the carpet by police, and tracings found in plastic bags at the premises indicated the presence of heroin. These crates were delivered to Chun Hing Law at the Glebe unit on 18 November, 1994.
48 Alan Tam and Joseph Law also arrived in Sydney on 25 November, 1994. Between 28 November and 5 December, 1994 Alan Tam and Joseph Law telegraphically transferred money to Hong Kong and Canada and purchased overseas drafts to a total of $276,694.58.
49 Chun Hing Law left Australia on 28 November, 1994. Alan Tam left Australia six days later on 4 December.
50 Chun Hing Law attempted to acquire a further visa to permit him to return to Sydney in January, 1995. He experienced difficulties with law enforcement authorities in Hong Kong and in late December, 1994, his visa application was refused.
51 The onset of criminal legal proceedings against Chun Hing Law in Hong Kong may be accepted as having cast doubt in December 1994 upon his ability to travel to Australia in January 1995 to fulfil the role of consignee for that importation.
52 Alan Tam gave evidence, which I accept, of having been told by Joseph Law to find another person to take delivery in January 1995 in case Chun Hing Law was unable to do so.
53 Brian Kuan obtained a Canadian passport on 15 December, 1994. On 22 December, 1994 he applied for a visa to travel to Australia.
54 On 30 December, 1994 Chun Hing Law’s application for a visa to visit Australia was rejected. On that same day, travel arrangements were made for Brian Kuan to travel to Australia.
55 Alan Tam gave evidence of having recruited Mao Huang Tung to assist in relation to the January, 1995 importation following the searching of Joseph Law by Hong Kong police authorities and his consequential decision not to return to Australia. Alan Tam gave further evidence that it was Mao Huang Tung who recruited Brian Kuan to be the consignee and “hands-on” functionary to receive the January 1995 importation.
56 On 31 December, 1994 both Alan Tam and Mao Huang Tung arrived in Australia on the same flight. On 4 January, 1995 Brian Kuan arrived in Sydney on a flight which originated in Canada. He was met at the airport by Mao Huang Tung. At 10 am on the morning of his arrival, Brian Kuan attended a real estate agency and was invited to inspect the premises at 601 Harris Street, Ultimo which he did. He completed an application form for the lease of these premises, giving as his address 1416 Golden Gate Hotel, being the room booked by Mao Huang Tung on 3 January, 1995 for a period of ten nights commencing on that day.
57 On the day of his arrival, that is to say 4 January, 1995, Brian Kuan also rented a pager from the ABC Paging Company, which was the same organisation from which Joseph Law and Chun Hing Law had each rented pagers during 1994. Mao Huang Tung and Alan Tam also utilised a pager from the ABC Paging Company during January 1995.
58 On 5 January, 1995 Brian Kuan signed the lease for 601 Harris Street and paid $1,675.00 in cash, being for the bond, two weeks rent in advance and the lease preparation fee.
59 Between 6 and 9 January 1995, Brian Kuan was observed to meet with Alan Tam and Mao Huang Tung on a large number of occasions.
60 On 7 January, 1995 an invoice was prepared by Zega in Bangkok for “29 glass sculptures” which were consigned to “Mr Brian Kuan, 601 Harris Street, Ultimo, Sydney, NSW, 2001, Australia”. This consignment, which consisted of four wooden crates, was shipped to Australia on 10 January, 1995.
61 The consignment arrived in Australia on 11 January and was intercepted by police and customs officers, who opened one of the crates, removed a glass picture, together with the cardboard backing and rough sandpaper backing, to disclose packages of heroin wrapped in carbon paper.
62 During the evening of 11 and morning of 12 January, all twenty nine glass paintings, which were contained in the four crates, were opened and the heroin removed and replaced with an inert substance of similar appearance. The pictures were reinstated with a 30 gram control delivery sample of heroin being placed in one picture in each crate. The white powder which was removed was subjected to scientific analysis and found to be impure heroin hydrochloride containing an average of 71.7% heroin. The total weight of the impure heroin hydrochloride was 55.9 kilograms. The total weight of pure heroin was 40.1 kilograms.
63 A controlled delivery of the four crates was made by a police officer posing as a courier to 601 Harris Street where Brian Kuan took delivery, assisted the courier driver to transport the crates into the premises and paid the sum of $2,450 to the police officer posing as the courier for delivery fees and clearance charges.
64 Throughout the evening of the 12th and the early morning of 13th January, 1995 Brian Kuan removed the white powder from the reconstituted pictures and repackaged that powder into plastic sandwich bags. His conduct was monitored by a listening device secreted within the crates. During this process Brian Kuan was telephoned by Mao Huang Tung and that conversation was also monitored.
65 At about 4.15 am on the morning of 13 January, Brian Kuan returned from 601 Harris Street to Room 1721 at the Golden Gate Hotel, which he had checked into for two nights on 12 January.
66 On 13 January, 1995 Yu Tit Hoi and Kevin Chi Ho flew from Melbourne to Sydney, arriving at about 2 pm.
67 At about 4 pm on 13 January, Mao Huang Tung instructed Brian Kuan to bring fifteen bags of heroin to Room 1710 of the Golden Gate Hotel and gave him directions about handing over what he believed to be heroin to Yu Tit Hoi and Kevin Chi Ho.
68 That same afternoon, Kevin Chi Ho booked into the Golden Gate Hotel, using the name Kevin Lee, and specifically requested a room on the seventeenth floor. He was allocated Room 1721, which is directly across the corridor from Room 1710.
69 Brian Kuan was observed to leave Room 1710 at 4.20 pm and go first to 601 Harris Street and then to the Waldorf Apartments carrying a black backpack. Shortly after 5 pm Brian Kuan was observed to leave the Waldorf Apartments carrying the same backpack and a grey soft-sided suitcase. He returned to Room 1710 at the Golden Gate Hotel.
70 Following the arrests of Brian Kuan, Mao Huang Tung and Alan Tam the grey soft-sided suitcase was located in Room 1710 of the Golden Gate Hotel and in it were thirteen bags of white powder (being the powder substituted by police). Two identical bags of white powder were seized when Yu Tit Hoi and Kevin Chi Ho were later arrested - making up the fifteen bags which had been the subject of discussion between Mao Huang Tung and Brian Kuan.
71 I am satisfied that some time between 5 pm and 6 pm on 13 January Brian Kuan handed over fifteen bags of white powder, which he believed to be heroin, to either Kevin Chi Ho or Yu Tit Hoi; that there was a problem with the white powder which had been handed over; that as a result Brian Kuan received back thirteen of the bags handed over by him and these thirteen bags were ultimately recovered by police in the grey suitcase in Room 1710. These events are confirmed in the statement made by Alan Tam.
72 I am satisfied to the requisite standard, on the evidence as a whole, that had Chun Hing Law been able to obtain a further visa he would have returned to Australia to carry out the functions of consignee of the January 1995 importation of heroin using the established modus operandi followed in the 1994 importations and repeated in January of 1995. I am further satisfied that he would have engaged in the transmission of moneys obtained from the sale of heroin to overseas destinations.
73 I am further satisfied that the participation of Chun Hing Law in the period after the January 1994 importation was at a senior level within the organisation when he was largely unsupervised and fulfilling a critical and central role in the overall conspiracy up until the time when he was unable to once again obtain entry into Australia in late December, 1994.
74 The multiple importations of heroin and the amount of money which the prisoner Chun Hing Law participated in transmitting out of Australia during 1994, together with the volume of the importation in January 1995, in which I am satisfied he conspired, being in excess of 40 kilograms of heroin of a wholesale value in excess of ten million dollars, make it plain that the heroin trafficking in which the prisoner Chun Hing Law played a vital role must properly be regarded - as must his criminality - as falling within the most serious class of case.
75 Subjectively the prisoner is aged forty years, having been born on 26.7.58. Very little subjective material by way of exhibits or submissions has been put before the court. The submission is made, on behalf of the prisoner Chun Hing Law, that he is a Canadian National of Hong Kong-Chinese origin, a factor which will tend to isolate him whilst in custody. He apparently formed a romantic liaison with a woman in Australia and his family circumstances were not the subject of evidence or submissions by counsel.
76 The criminal antecedents of the prisoner, Chun Hing Law, are of minor significance and I ignore this aspect as a relevant consideration.
77 Nevertheless, as has been said many times in this and other courts, good character is of less significance for serious drug offenders than in most other criminal offences.
78 The principal submission made is that the degree of culpability of Chun Hing Law is less than that of Alan Tam - counsel eschewed comparison with Mao Huang Tung.
79 Alan Tam and Mao Huang Tung were sentenced on the basis of the conspiracy to import the single consignment of heroin in January 1995. Their criminality was assessed as falling within the most serious class of case by Barr J, warranting imposition of the maximum sentence. With this assessment, I respectfully agree.
80 Chun Hing Law’s motive was self enrichment. The importation of what can only be described as massive amounts of heroin over the course of that period of the conspiracy in which he was a participant, leads only to the infliction of misery and death and the wide-spread perpetration of crime upon this community.
81 The equality of ranking, which Barr J found to prevail between Alan Tam and Mao Huang Tung, in my view, extends equally to Chun Hing Law.
82 I take into account the matters which S 16A of the Crimes Act of the Commonwealth makes mandatory.
83 The maximum penalty for the offence, of which the prisoner Chun Hing Law has been convicted, is imprisonment for life. Notwithstanding the other matters to be taken into account under the section, the need to punish Chun Hing Law and to deter others is the overwhelming consideration which persuades me of the appropriateness of the maximum sentence.
84 The sentences which were imposed on the co-offenders Mao Huang Tung and Alan Tam by Barr J on 5 September 1997 were assessed in the light of precedent, then binding on this court, regarding S 16G of the Crimes Act of the Commonwealth, which was then considered applicable to adjust a life sentence imposed in a state such as New South Wales where a remissions system no longer exists. The sentence imposed upon Mao Huang Tung and Alan Tam were adjusted accordingly.
85 On 7 November, 1997 the High Court of Australia in Vanit -v- R - Tansakun -v- R - and Wangsaimas -v- R 149 ALR 1; held that S 16G does not apply to life sentences for Federal offences where sentences are to be served in a State or Territory in which “sentences are not subject to remission or reduction”. Accordingly, no such adjustment may be availed of in the present case.
86 Chun Hing Law, on the charge of conspiracy to import into Australia a quantity of heroin, being not less than the commercial quantity, of which you have been convicted, you are sentenced to imprisonment for life.
87 The length of your sentence will not be reduced by any remissions because this State no longer has a remissions system. Your sentence will accordingly be for the term of your natural life.
88 The plea of guilty by the prisoner Brian Alexander Kuan to the charge of being knowingly concerned in the importation of heroin in contravention of S 233B(1)(d) of the Customs Act of the Commonwealth was entered on 16 March, 1998, which was the first day of his trial on that charge.
89 In early 1997 the prisoner had faced trial on a charge of conspiring to import a commercial quantity of heroin in contravention of S 233B(1)(cd) of the Customs Act. On 10 April, 1997 the jury was unable to reach a verdict and the prisoner was remanded for retrial. Other trial proceedings, during which other co-accused had entered pleas of guilty resulting in the trial being aborted, do not have significant bearing.
90 The prisoner’s plea of guilty, although made in the face of a powerful Crown case in which the prisoner was “caught red handed” entitles him to some leniency, both as to the prisoner’s contrition and to some degree, as to the utilitarian aspects in determining the appropriate sentence for the offence charged to which the prisoner has pleaded guilty and which carries a maximum penalty of life imprisonment.
91 Regarding the prisoner’s indications of contrition, I note also the matters referred to in Exhibit “D”, the affidavit of Gabrielle Ann Drennan, sworn 19 October, 1998, in which reference is made to evidence given by the prisoner at his earlier trial of being prepared to plead guilty on indictment to a charge of possessing or supply heroin, but that such an option, in my view quite rightly, was not available to him. Nevertheless, some indication of contrition at that stage was evident.
92 In addition to concerning himself in the steps taken preparatory to receiving the consignment by obtaining the lease of the premises, and the equipment which enabled him to communicate with other co-offenders, the prisoner carried out the important task of actually breaking open the consignment, removing what he believed to be heroin, and weighing and repackaging it.
93 The prisoner thereafter manifested his involvement in the venture by physically transporting the repackaged material, in compliance with instructions received from Mao Huang Tung, fifteen bags of the substance to the Golden Gate Hotel where he had specifically rented a room for the apparent purpose of effecting distribution of at least some of the substance he believed to be heroin.
94 The prisoner’s role and function permitted those of more apparent seniority, to distance themselves from the suspected narcotics by virtue of the placement of the prisoner in the front line.
95 I have appropriately been referred to what was said by Hunt CJ at CL in R -v- Raz (unreported - NSWCCA - 17.12.92) where it is said:-
“It is always relevant in the sentencing process to know where a person guilty of importing drugs into Australia, or being knowingly concerned in their importation, stands in relation to the organisation for which he commits that offence. He may have been recruited either here or overseas to bring the drugs into Australia for reward on one occasion only, and to hand them over to someone here. Such a person is the “bare or mere courier” and that is one end of the spectrum of culpability. At the other end is the principal of the organisation, or other senior person, who recruited the courier or who organised a supply of the drugs overseas or the distribution locally”. (At pp 6-7)
96 In the present case, it is clear beyond question, and the Crown acknowledges, that the prisoner Brian Alexander Kuan received supervision and direction at every step along the way in the performance of the role which he undertook. Nevertheless, it is equally clear and I am satisfied to the relevant standard that he was far removed from a mere courier and that whilst clearly of less seniority and responsibility than those directing him, that is to say Mao Huang Tung and Alan Tam, the prisoner’s function was critical to the success of the enterprise associated with the very large importation of heroin into Australia in January of 1995.
97 The selection of the prisoner whose appearance, standing and antecedents would be unlikely to attract suspicion is the rule rather than the exception in the selection process of persons chosen to carry out the “hands-on” function.
98 The need to administer appropriate punishment, and in particular to send the clearest possible signal to those who contemplate the importation of prohibited narcotics, of which heroin ranks at the highest level with its calamitous and tragic consequences to members of the community and in particular the young members of the community, that their endeavours will be met with the most condign punishment is, as I have previously indicated in these remarks, the overwhelming consideration.
99 The approach to be adopted by the court in dealing with serious drug importations and in the formulation of appropriate sentences has been adumbrated in the authorities to which I have been referred including Muanchunkingkan (1990) 52 A Crim R 354 at 356 per Wood J (as he then was) and the observations of Wells J in Le Cerf (1976) 8 ALR 349 and also per Wood CJ at CL in Budiman (NSWSC - 8.9.98 - unreported) and also in Trina La Shae Smith (NSWCCA - 20.8.98 - unreported) and more recently by Spigelman CJ in Behar (NSWCCA - 14.10.98 - unreported).
100 The thrust of these authorities is that without the willing help and co-operation of those who might be described as the couriers or “hands-on functionaries” the operation of the nefarious trade of the entrepreneur and his organisation would fall to the ground as described by Wells J in Le Cerf in the oft quoted passage at p 351:-
“If there were no middle men and underlings, there would be no men at the top in an organisation. If an organisation is starved of recruits it must collapse”.
101 The Crown contends that the prisoner has demonstrated little contrition. Having initially elected to exercise his right to silence, he volunteered a detailed explanation in a record of interview in early March 1997, during the course of the proceedings which were then on foot against him and others. Emphasis is placed upon the significance of the fact that that explanation was advanced at a time when Alan Tam had pleaded guilty, but the co-accused Mao Huang Tung was adhering to a plea of not guilty.
102 I will not embark upon detailed examination of the evidence given by the prisoner in the trial before Justice Barr. It is clear beyond question that the prisoner was prepared to shape his evidence to suit the circumstances prevailing at the relevant time and that in describing his state of knowledge as to the contents of the backing to the glass pictures which he was unpacking being heroin, his evidence was patently disingenuous. Only after prolonged and penetrating cross examination was he compelled to concede that much of the evidence he had given was simply incredible.
103 In his evidence before me, the prisoner admitted that sworn testimony given by him before Barr J was not the truth.
104 Subjectively, the prisoner is aged twenty three years. He was aged nineteen years when he embarked upon the activities which bring him before the court today.
105 The prisoner is a Canadian National of Chinese ethnic origin, who was attending university in Canada. He enjoys very strong family support, both his parents having travelled to Australia to offer him support since his incarceration here. His father has come to Australia on three occasions to support his son. The prisoner has no criminal antecedents and, for obvious reasons, made no financial gain from the criminal enterprise in which he was involved in January of 1995. He has been in custody since his arrest on 13 January of that year.
106 In his evidence the prisoner made reference to the apprehension he felt concerning the safety of the members of his family and Mr Brewer of counsel appearing for him, recognises the difficulty the court has in seeking to gauge the extent of any such threats or duress. The prisoner’s father gave evidence that there had been police activity in Canada relating to certain persons associated with drug offences, unrelated to the matters presently before this court.
107 I have previously referred to the sequence of events relating to the plea of guilty and the prisoner’s attitude to alternative pleas, and I take those matters into account.
108 The role of the prisoner in the importation in question has variously been described as that of a “boy”; a “mule”; a “foot soldier” and by his counsel as “cannon fodder”. There is no doubt a certain amount of force in the impression there sought to be conveyed. Certainly I accept that the prisoner was the subject of direct control and direction by others who occupied a far more senior position in the hierarchy of the organisation.
109 I am, however, nevertheless satisfied that his participation in the enterprise was a voluntary one on his part and that he was fully aware of what he was doing at the time.
110 The comprehensive surveillance which was undertaken by police, once they became aware of the proposed importation of heroin on 15 January, 1995, leaves no doubt that every person associated with this enterprise was identified and subjected to surveillance. The fiction persisted in by the prisoner of the existence of a mysterious “third man” exhibits a persisting disingenuousness on the part of the prisoner.
111 I note that in cross examination, Mr Kuan senior when asked about the concern he had about persons associated with drug crime in Canada conceded that there was nothing in those matters in Canada that had anything to do with Australia.
112 I note that during the course of his time in custody, the prisoner has applied himself to a number of beneficial courses and other activities and that in this regard, he indicates prospects of rehabilitation and progress.
113 I take into account the matters which S 16A of the Crimes Act of the Commonwealth requires; the seriousness of the offence and the other relevant objective and subjective matters.
114 I consider a sentence of 18 years imprisonment to be appropriate.
115 This is a sentence to which S 16G of the Crimes Act applies. To take account of the absence of remissions in New South Wales, I reduce the head sentence to 12 years.
116 In determining a non parole period, I take into account the subjective case presented and in particular the prisoner’s youth and prospects of rehabilitation. I fix a non parole period of 7 years.
117 Brian Alexander Kuan I sentence you to a term of imprisonment of 12 years, commencing on 13 January, 1995 and I fix a non parole period of 7 years commencing on the same day.
118 The length of your sentence will not be reduced by remissions, because this state no longer has a remissions system, but in order to allow for the absence of remissions, I have reduced the period which would otherwise have been appropriate.
119 You will serve the whole of the non parole period of 7 years, commencing on 13 January, 1995 in prison, but if a parole order is made there will be a period of service in the community, called the parole period, to complete your service of the sentence.
120 If a parole order is made, it will be subject to conditions, and you must comply with them until you have completed the service of your sentence. If you misbehave whilst on parole or fail to comply with any of the conditions imposed, your parole may be revoked and you will then be returned to custody to serve the remainder of your sentence in prison.

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Last Modified: 04/06/1999