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District Court 1 March 2012

R v Lui; R v Lau

[2012] NSWDC 161

Drugs
CRIMINAL LAW: SENTENCE CONSPIRACY TO IMPORT

Citation: R v Lui; R v Lau [2012] NSWDC 161
Court: District Court of New South Wales
Date: 1 March 2012
Judge: Murrell SC DCJ

Background

Two co-offenders, both Chinese nationals, each pleaded guilty to conspiring between December 2008 and June 2009 to import a commercial quantity of pseudoephedrine into Australia, intending that it would be used to manufacture a controlled drug. The conspiracy involved a network of Australian and Chinese participants, with the Chinese principal operating from China and directing operations through intermediaries who travelled to Australia.

The substance actually imported was N-methylephedrine rather than pseudoephedrine, but the two drugs are closely related and each can be used to manufacture methamphetamine. The shipment weighed 198.4 kilograms gross, containing 166.7 kilograms pure of the substance, with a black market value of approximately $6.668 million. Had it been converted to methylamphetamine base, it could have produced around 100 kilograms with a wholesale value of at least $16 million.

The first offender (Mr Lau) was a Hong Kong resident who acted as a close assistant to the Chinese principal. The second offender (Mr Lui) was also a Chinese national who entered Australia in April 2009, initially to deliver chemical samples and subsequently to assist with the container's arrival. Both were arrested in early June 2009.

  • What was the appropriate starting point for each offender's sentence, having regard to their respective roles in the conspiracy?
  • What discount should apply for the early pleas of guilty?
  • What non-parole period was appropriate, given the High Court's guidance in Hili v The Queen that courts are not bound to apply a fixed percentage?
  • What weight should be given to subjective circumstances, including personal hardship, lack of prior criminal history, and medical conditions?

Decision

Her Honour identified that the conspiracy was a serious commercial operation. The maximum penalty was 25 years imprisonment, and full-time custody was the only appropriate outcome. The offending fell well above the commercial quantity threshold for pseudoephedrine, which is 1.2 kilograms, and the quantity imported was nearly 140 times that threshold.

Mr Lau's role extended over approximately three months. He accompanied the Chinese principal on a visit to Australia, facilitated a key meeting in China, and then travelled to Australia immediately before the container arrived, bringing with him detailed knowledge of the container's layout and sealing system. Her Honour characterised him as a trusted right-hand man to the Chinese principal, not a planner or organiser, but a person entrusted with important operational responsibilities. His starting point was set at approximately ten years imprisonment.

Mr Lui's role was somewhat lesser in overall significance. He flew to Australia to deliver chemical samples, remained to assist with the container's arrival, and served as an interpreter for Mr Lau given his stronger English. Her Honour noted there was no evidence he knew the specific quantity or precise nature of the substances in the container. His starting point was set slightly below that for Mr Lau.

Both offenders received a discount of close to 25 percent for their early pleas of guilty. Her Honour applied a non-parole period of 60 percent of the head sentence for each, noting that since Hili v The Queen, the court is not required to apply the historical 60 to 67 percent range but must determine what is appropriate in the circumstances of each case. Personal circumstances, including financial hardship, lack of prior convictions, Mr Lau's language difficulties in custody, and Mr Lui's medical conditions of Lupus and Hepatitis B, were taken into account as subjective factors.

Orders Made

  • Mr Lau: non-parole period of 4 years and 6 months from 30 June 2009 to 2 December 2013, with a balance of term of 3 years; sentence expiring 2 December 2016.
  • Mr Lui: non-parole period of 3 years and 11 months from 3 June 2009 to 2 May 2013, with a balance of term of 2 years and 7 months; sentence expiring 2 December 2015.

Key Takeaways

  • A conspiracy to import a commercial quantity of precursor chemicals attracts substantial sentences of full-time imprisonment even where an offender is not a principal planner, provided the role involved trust, operational responsibility, and cross-border involvement.
  • Relative culpability within a conspiracy matters: the District Court set different starting points for the two offenders based on a careful analysis of the nature, duration, and operational significance of each person's role.
  • Under Hili v The Queen, courts sentencing for Commonwealth offences are not bound by the historical practice of setting non-parole periods at 60 to 67 percent of the head sentence; the appropriate proportion must be determined on the specific facts of each case.
  • Personal circumstances such as financial hardship, family responsibilities, language difficulties in custody, and medical conditions are recognised as subjective factors in Commonwealth sentencing, even though they do not displace the need for significant terms of imprisonment in serious drug importation cases.
  • A guilty plea discount in the range of 20 to 25 percent remains available where pleas are entered at an early stage, bearing in mind the sequence of pre-plea events.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)

Cases
- Hili v The Queen [2010] HCA 45