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District Court 14 December 2015

R v WAT, Kar Wang

[2015] NSWDC 418

Drugs
CRIMINAL SUPPLY PROHIBITED DRUG EPHEDRINE LARGE COMMERCIAL QUANTITY SENTENCE EARLY PLEA OF GUILTY

Citation: R v WAT, Kar Wang [2015] NSWDC 418
Court: District Court of New South Wales
Date: 14 December 2015
Judge(s): Judge S Norrish QC

Background

The offender, a 66-year-old Hong Kong national, pleaded guilty to knowingly taking part in the supply of a prohibited drug, namely ephedrine, in a large commercial quantity. The quantity involved was approximately 218,764.5 grams, far exceeding the 5-kilogram threshold for a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment, and the standard non-parole period is 15 years.

The offending arose from a multi-agency investigation into a transnational criminal syndicate. The offender arrived in Australia from Hong Kong and, within days, incorporated a company he used to receive a shipping container from China. The container, described as holding ceramic bowls and garden pots, in fact concealed the ephedrine within false bottoms in the ceramics.

The offender, together with an associate, rented a self-storage unit in Petersham, where they spent several days breaking open the ceramic items to extract the drug. Both men departed Australia on 29 August 2014, the same day police executed a search warrant on the storage unit. The offender was arrested on 8 October 2014 when he attempted to re-enter Australia through Melbourne Airport.

  • What discount should apply for the offender's plea of guilty, and at what point was it entered?
  • What was the offender's role within the criminal syndicate, and was he a principal organiser?
  • How should the court weigh the standard non-parole period given the nature and scale of the offending?
  • What mitigating factors applied, including the offender's age, prior good character, and foreign national status?
  • What weight should be given to the offender's limited cooperation with law enforcement?
  • Did special circumstances exist to justify a variation to the standard ratio of non-parole period to head sentence?

Decision

Judge Norrish QC applied a 25% discount to the sentence to reflect the utilitarian value of the guilty plea, consistent with the guideline in R v Thomson; R v Houlton. Although the plea was entered on the day of the indictment, the offender had been committed for sentence several months earlier, and the court treated this as an appropriately early plea in the circumstances.

The court considered the scale of the operation significant. The pure ephedrine recovered (approximately 156,530 grams) was capable, on theoretical yield calculations, of producing nearly 177,000 grams of methylamphetamine hydrochloride. Ephedrine is a well-known precursor to methylamphetamine, and its inclusion in the large commercial quantity schedule reflects the legislature's recognition of this danger.

On the question of the offender's role, the court found it could not conclude that he was a principal in the syndicate, though his involvement was clearly substantial. He established the corporate vehicle, arranged the rental of the storage unit, and was present during the extraction of the drug over several days. The court accepted that his role fell short of that of an organiser or controller, which would have attracted a heavier sentence.

Mitigating factors included the offender's age (65 at the time of the offending), his prior good character, and the fact that he had no prior criminal history. His cooperation with authorities was minimal. He answered only limited questions in his record of interview and, while he later nominated a person said to be "in charge," that individual was already known to police and no further useful information was provided. No discount was afforded for assistance to authorities. The court found special circumstances existed to justify extending the parole period beyond the statutory norm, resulting in a non-parole period of 10 years against a head sentence of 15 years.

Orders Made

  • Convicted of knowingly taking part in the supply of a large commercial quantity of ephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Sentenced to imprisonment with a non-parole period of 10 years, commencing 8 October 2014 and expiring 7 October 2024
  • Balance of sentence fixed at 5 years, expiring 7 October 2029
  • Finding of special circumstances made
  • On release to parole, the offender is to be taken into federal immigration detention for deportation to Hong Kong or China

Key Takeaways

  • The District Court applied a 25% guilty plea discount consistent with Thomson and Houlton, treating commitment for sentence as the relevant benchmark for the timing of the plea rather than the formal entry of the plea at the indictment stage.
  • Where an offender's precise role within a transnational criminal syndicate cannot be determined to be that of a principal, the sentencing court may fix a lower sentence than would otherwise apply, while still recognising the seriousness of substantial operational involvement.
  • A large commercial quantity of ephedrine attracts the same maximum penalty and standard non-parole period as other serious drug offences under the Drug Misuse and Trafficking Act 1985, reflecting the drug's role as a direct precursor to methylamphetamine production.
  • Minimal cooperation with law enforcement, including providing information about a person already known to police without any further usable detail, does not attract a sentencing discount for assistance to authorities.
  • Special circumstances were found to exist, justifying a non-parole period that represented a lower proportion of the head sentence than the statutory default, with the court noting the offender's age and the expectation of post-release deportation as relevant considerations.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen [2005] HCA 25
- Chan and Others [2010] NSWCCA 153
- Way v R (2004) 60 NSWLR 168
- De La Rosa [2010] NSWCCA 194
- DS v The Queen [2014] NSWCCA 297
- Ibrahim Jidah v The Queen [2014] NSWCCA 269
- Yousef Jidah v The Queen [2014] NSWCCA 270
- Lachlan Wilson [2014] NSWCCA 266
- RCW v R (No 2) [2014] NSWCCA 190