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District Court 13 October 2017

R v MOK, Hin Lok

[2017] NSWDC 314

Drugs
CRIMINAL SENTENCE METHYLAMPHETAMINE LARGE COMMERCIAL QUANTITY 88.5 KG ATTEMPTED TO BE MANUFACTURED CHINESE NATIONAL

Citation: R v MOK, Hin Lok [2017] NSWDC 314
Court: District Court of New South Wales
Date: 13 October 2017
Judge: Judge S Norrish QC

Background

The offender, a 39-year-old Hong Kong national with no prior criminal history, travelled to Australia in January 2016 as part of what appeared to be a deliberate effort to conceal his movements within a tour group. He was engaged as a "cook" in an operation designed to convert large quantities of liquid methylamphetamine into crystalline form at leased premises in Campsie, Sydney.

The operation was already under police surveillance. Investigators had earlier located and substituted the methylamphetamine stored across several Sydney storage units with inert substances. The offender, unaware of this, spent several days attempting to carry out the conversion process at the Campsie premises. When the process failed, he made a series of telephone calls to an unknown contact in China to troubleshoot the problem. Police executed a search warrant on 25 January 2016 and arrested him at the premises.

The offender pleaded guilty in the Local Court on 7 February 2017 to knowingly taking part in an attempt to manufacture a large commercial quantity of methylamphetamine, specifically 88.5 kilograms. The offence is charged under section 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), read with section 33 of the same Act. The maximum penalty is life imprisonment and a fine of 5,000 penalty units, with a standard non-parole period of 15 years.

  • What was the appropriate starting sentence, having regard to the offender's role and the circumstances of the offence?
  • What weight, if any, should be given to the fact that police intervention prevented the drugs from entering the community?
  • Did a claim of duress reduce the offender's criminality?
  • What discount applied for the utilitarian benefit of the early guilty plea?
  • Were there special circumstances justifying a departure from the standard ratio between non-parole period and head sentence?
  • How should the offender's status as a foreign national in custody affect the sentence?

Decision

Judge Norrish placed the offending at the lower end of the middle range of criminality. The offender's role was that of a skilled technician, a "cook," but he was not the organiser of the enterprise, did not source the precursor materials, and was directed by others including the co-accused Tsang and an unidentified contact in China. The court noted that telephone intercepts clearly illustrated the offender's subordinate position in the operation.

On the question of police intervention, the court acknowledged some diminution in criminality flowing from the fact that the drugs never reached the public. However, the reduction in moral culpability was described as limited: the offender had attempted to manufacture a very large quantity of a highly dangerous drug, and the failure of the process was attributable entirely to police substitution of the precursors, not to any action by the offender.

The court rejected a submission that duress reduced the offender's culpability, finding there was no proof of non-exculpatory duress on the evidence available. The court also noted that the offender's lack of prior convictions, while relevant to character, had the somewhat double-edged consequence of enabling him to enter Australia and participate in the offence in the first place. No grounds existed to reduce the weight given to general or personal deterrence.

A 25% discount was applied for the guilty plea, consistent with the guideline in R v Thomson & Houlton (2000). The court found special circumstances arising from the particular difficulties faced by the offender in custody as a foreign national with limited English, isolated from family and culturally familiar support. This justified a longer-than-standard balance of sentence, producing a non-parole period of six years against a head sentence of nine years.

Orders Made

  • The offender was convicted of knowingly taking part in an attempt to manufacture a large commercial quantity of methylamphetamine (88.5 kg).
  • Sentenced to nine years imprisonment, with a non-parole period of six years.
  • Non-parole period to commence 25 January 2016 and expire 24 January 2022.
  • Balance of sentence (three years) to expire 24 January 2025.
  • Sentence backdated to the date of arrest.

Key Takeaways

  • The District Court confirmed that a subordinate role in a drug manufacturing operation, such as that of a "cook" who neither organised the enterprise nor sourced the precursors, places offending at the lower end of the middle range of culpability, even where the quantity involved is very large.
  • Police intervention that prevents manufactured drugs from reaching the community provides only a limited reduction in criminality where the offender played a full and knowing role in the attempted manufacturing process.
  • Under the Drug Misuse and Trafficking Act 1985, an attempt to manufacture a large commercial quantity attracts a maximum of life imprisonment and a standard non-parole period of 15 years; the court applied the two-stage approach from Muldrock v R (2011) in reaching its starting point.
  • A guilty plea entered at the first reasonable opportunity, even where that was over a year after arrest, attracted the full 25% utilitarian discount in accordance with R v Thomson & Houlton (2000).
  • Special circumstances were established on the basis of the hardship faced by a foreign national serving a custodial sentence far from family, with limited English and cultural isolation, justifying a non-parole period proportionally shorter than the statutory norm.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D and Table (standard non-parole periods)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Muldrock v R (2011) 244 CLR 120
- Markarian v R [2005] HCA 25
- The Queen v Pham (2015) 256 CLR 550
- Hill v R (2010) 244 CLR 520
- AB v R [2013] NSWCCA 273
- R v Henry and Ors (1999) 46 NSWLR 346
- R v Bloomfield (1998) 44 NSWLR 734
- R v Gao [2007] NSWCCA 343
- Hristovski v R [2010] NSWCCA 129
- Knight v R [2015] NSWCCA 222
- Ticknius v R [2011] NSWCCA 215
- AD (2008) 191 A Crim R 409
- R v DW [2012] NSWCCA 66
- R v El-Azzi [2004] NSWCCA 455
- R v OPA [2004] NSWCCA 464
- R v Pedavoli (2002) 128 A Crim R 137
- R v S (2000) 111 A Crim R 225
- R v Spaliviero (unreported, NSWCCA, 15 December 1993)