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District Court 7 September 2012

R v Yan Huang

[2012] NSWDC 298

Drugs
CRIME SENTENCING IMPORTATION OF PSEUDOEPHEDRINE ROLE OF OFFENDER WHETHER A PRINCIPAL RECKLESSNESS

Citation: R v Yan Huang [2012] NSWDC 298
Court: District Court of New South Wales
Date: 7 September 2012
Judge(s): Letherbarrow SC DCJ

Background

The offender was convicted by a jury of intentionally importing tier 1 goods (pseudoephedrine) without approval, contrary to s 233BAA(4) of the Customs Act 1901 (Cth). The conviction arose from a managed delivery operation in May 2011, during which customs officers intercepted a package from China concealed with approximately 760 grams of pure pseudoephedrine hidden inside hollow brush handles. The offender collected the package from a friend's address in Campsie and was arrested at the scene.

The offender's account at trial was that she had been recruited by a man known only as "Tony," whom she had met while gambling, and that she believed the package contained counterfeit branded goods. She acknowledged receiving $2,000 for facilitating the delivery. The Crown argued primarily that "Tony" did not exist and that the offender had arranged the importation herself with full knowledge of its contents.

The jury convicted on either the Crown's primary case (actual knowledge) or its alternative case (recklessness). The sentencing hearing required the court to determine, among other things, what role the offender actually played and what sentence was appropriate in light of her personal circumstances.

  • Whether the offender was a principal in the importation or merely a reckless participant
  • Whether the prosecution had established beyond reasonable doubt that "Tony" did not exist and that the offender had actual knowledge of the drugs
  • The appropriate sentence given the offender's level of recklessness, the quantity of pseudoephedrine involved, and her personal circumstances
  • Whether the probable effect of imprisonment on the offender's dependent children constituted "exceptional circumstances" sufficient to justify an intensive correction order
  • Whether a recognizance release order was appropriate, and on what terms

Decision

Role of the offender. The sentencing judge declined to find beyond reasonable doubt that the offender was a principal in the importation. Having presided over the trial, his Honour remained unable to exclude the existence of "Tony" or to conclude that the offender actually knew the package contained drugs. The only finding made to the requisite standard was that the offender was reckless within the meaning of s 5(4)(1) of the Criminal Code Act 1995 (Cth), meaning she was aware of a substantial risk that the package contained an illicit substance and it was unjustifiable to take that risk. That level of recklessness was nonetheless characterised as significant.

Exceptional circumstances and the intensive correction order. The offender sought an intensive correction order, arguing that the probable effect of a full-time custodial sentence on her young children amounted to exceptional circumstances. The court acknowledged the hardship to the children but found that the circumstances did not meet the high threshold required. The quantity of pseudoephedrine involved (sufficient to yield conservatively 600 grams of methylamphetamine with a street value of $300,000 to $600,000) weighed heavily against a non-custodial disposition.

Sentence. Letherbarrow SC DCJ imposed a sentence of 12 months' imprisonment. The court set a non-parole analogue of seven months under the federal sentencing regime. The sentence was backdated to account for 29 days of pre-sentence custody, commencing 9 August 2012.

Recognizance release order. Applying the principles from Hili v The Queen and Power v The Queen, the court made a recognizance release order directing that the offender be released after serving seven months, on 8 March 2013, upon entering a recognizance of $500 to be of good behaviour for two years.

Orders Made

  • Sentence of 12 months' imprisonment imposed, backdated to commence 9 August 2012
  • Recognizance release order made under s 19AC(1) of the Crimes Act 1914 (Cth), directing release on 8 March 2013 after seven months served
  • Offender to enter a recognizance of $500 to be of good behaviour for two years from the date of sentencing
  • Forfeiture of the recognizance sum and liability to serve the remaining five months if the good behaviour condition is breached

Key Takeaways

  • Under s 5(4)(1) of the Criminal Code Act 1995 (Cth), recklessness requires awareness of a substantial risk and an unjustifiable decision to take it; actual knowledge satisfies the recklessness element but must be proved beyond reasonable doubt before a sentencing court can treat it as established.

  • A sentencing court is not bound by the Crown's factual theory at trial; where alternative cases were left to the jury, the sentencing judge must independently determine which facts are proved to the requisite standard before making adverse findings about an offender's role.

  • The District Court confirmed that the probable effect of imprisonment on dependent children does not automatically constitute "exceptional circumstances" justifying an intensive correction order; the high threshold remained unsatisfied in the face of a significant quantity of a precursor drug capable of yielding large amounts of methylamphetamine.

  • Applying Hili v The Queen, there is no fixed percentage or norm governing the portion of a federal sentence to be served before release on a recognizance release order; the appropriate period is determined by reference to all the circumstances of the offence and the offender.

  • Pre-sentence custody, including time served both before and after bail is revoked, is taken into account by backdating the commencement of the sentence.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BAA(4)
- Criminal Code Act 1995 (Cth), ss 5(4)(1), 5.4(4)
- Crimes Act 1914 (Cth), ss 16A, 17A, 19AC(1), 20AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 67
- Social Security Act (Cth), s 1158
- Crimes Regulations 1990 (Cth), cl 6

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Power v The Queen [1974] HCA 26
- Markarian v The Queen (2005) 228 CLR 357
- R v Boughen; R v Cameron [2012] NSWCCA 17
- R v Lo; R v Wang [2004] NSWCCA 382
- Le v R [2006] NSWCCA 136
- R v Alla [2004] NSWCCA 378
- R v Lee [2007] NSWCCA 234
- R v Wood [2005] NSWCCA 223
- R v Hart [1999] NSWCCA 204
- R v Luong [2000] NSWCCA 139
- R v Bednarz [2000] NSWCCA 553
- R v Sinclair (1990) 50 ACrimR 418
- R v X [2004] NSWCCA 93
- R v Gardard [2004] NSWCCA 170