Citation: R (Commonwealth) v SHIH, Hung Wei [2017] NSWDC 211
Court: District Court of New South Wales
Date: 9 February 2017
Judge: Judge S Norrish QC
Background
The offender, a 23-year-old Taiwanese national with no prior criminal history, was intercepted by Australian Border Force officers at Sydney Airport on 28 March 2016. Officers discovered two wrapped boxes concealed in his luggage, containing approximately 3.769 kilograms of methamphetamine with an average purity of 79.4 per cent, yielding a pure weight of 2,993.2 grams.
The offender had arrived as part of a tour group from Taiwan. His travel arrangements, including his incoming passenger card, had allegedly been completed by others. He was travelling with another man who was separately committed for trial.
The offender pleaded guilty at the Local Court to importing a border controlled drug in a commercial quantity, contrary to section 307.1(1) of the Criminal Code 1995 (Cth). He was committed to the District Court for sentencing. The offence carries a maximum penalty of life imprisonment.
Legal Issues
- What sentence was appropriate for importing a commercial quantity of methamphetamine, given the circumstances of the offence and the offender?
- What discount should apply for an early guilty plea?
- How should the court weigh the offender's personal circumstances, including his difficult upbringing, youth, lack of prior convictions, and claimed financial motivation?
- To what extent was the offender aware of the nature and quantity of the drugs he was carrying?
Decision
Judge Norrish accepted that the offender pleaded guilty at the first reasonable opportunity and applied a 25 per cent discount to reflect that early plea and its facilitation of the course of justice, consistent with the principles in Wong v R and R v Thompson and Houlton.
The court found the offender was a willing, paid courier who had been recruited for financial reward. His account that he was unaware the boxes contained drugs was rejected. However, the court accepted he likely did not know the precise quantity or purity, and that he was at least reckless as to whether the packages contained border controlled drugs. The court noted that couriers are commonly kept ignorant of precise details to protect those directing the operation.
In assessing the offender's personal circumstances, the court accepted that he had experienced a genuinely difficult upbringing, having been abandoned by his parents and raised by elderly grandparents. Some weight was given to his remorse and to the reference provided by his grandfather. The court accepted a partial motivation to provide financial assistance to his grandparents, though not entirely on his own terms. His youth and absence of any prior convictions in Taiwan or Australia were treated as mitigating factors.
Applying the relevant sentencing principles, including those in Veen (No.2) and Bugmy v The Queen, the court determined that a sentence of seven and a half years imprisonment, with a non-parole period of four and a half years, was appropriate. The sentence was backdated to the date of arrest. The court noted the offender would, following release on parole, be held by Commonwealth immigration authorities and deported to Taiwan.
Orders Made
- The offender was convicted of importing a commercial quantity of a border controlled drug contrary to section 307.1(1) of the Criminal Code 1995 (Cth).
- Sentenced to seven and a half years imprisonment, commencing 28 March 2016, with expiry on 27 September 2023.
- Non-parole period of four and a half years, commencing 28 March 2016, with expiry on 27 September 2020.
- No pecuniary penalty imposed, the court finding the offender had no capacity to pay.
Key Takeaways
- A 25 per cent discount for an early guilty plea was applied where the plea was entered at the first reasonable opportunity, consistent with established Commonwealth sentencing principles.
- Courts sentencing foreign nationals who act as drug couriers will examine the degree of the offender's knowledge closely. Here, full knowledge of the drug's identity was inferred despite the courier's claimed ignorance, but knowledge of precise quantity and purity was not established.
- Youth, an absence of prior convictions, a difficult personal history, and genuine remorse are relevant mitigating factors in Commonwealth drug importation sentencing, though they operate within the constraints set by the objective gravity of the offence.
- Financial motivation for participating in a drug importation does not reduce culpability, even where the offender was a courier rather than an organiser, and even where some of the reward was intended for family members.
- The District Court confirmed that, for foreign nationals sentenced under Commonwealth law, the court has no control over post-parole immigration detention or deportation; those outcomes are governed by Commonwealth immigration authorities.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 307.1(1)
Cases
- Wong v R (2001) 207 CLR 584
- R v Thompson and Houlton (2000) 49 NSWLR 383
- DPP v Gow [2015] NSWCCA 208
- Cameron v The Queen (2002) 209 CLR 339
- Commonwealth DPP v Thomas and Wu [2016] VSCA 237
- Bugmy v The Queen [2013] HCA 37
- Power v R [1974] HCA 26
- DPP v De La Rosa [2010] NSWCCA 194
- Veen (No.2) v The Queen (1988) 164 CLR 465