R v Cheong

[2021] NSWDC 556

District Court

New South Wales

Medium Neutral Citation:

R v Cheong [2021] NSWDC 556

Hearing dates:

27 August 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [106]

Catchwords:

CRIME – supply prohibited drug greater than large commercial quantity – knowingly direct activities of criminal group.

Legislation Cited:

Crime (Sentencing Procedure) Act 1999

Crimes Act 1900

Drug Misuse & Trafficking Act 1985

Cases Cited:

Blanco v R [1999] NSWCCA 121

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Lai v R [2021] NSWCCA 217

Mill v The Queen (1988) 166 CLR 59

Ozan v R [2021] NSWCCA 231

Parente v R [2017] NSWCCA 284

R v Daley [2003] NSWCCA 109

R v Hathaway [2005] NSWCCA 368

R v Macdonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34

R v Shi [2004] NSWCCA 135

R v Shortland [2018] NSWCCA 34

R v Todd [1982] 2 NSWLR 517

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Shi Loon Cheong (Offender)

Representation:

Counsel: F. Santisi (Offender)

Solicitor/Trial Advocate: K. McKenzie (Crown)

File Number(s):

2015/353676

remarks on sentence

1. The offender is to be sentenced in respect of the following two offences to which he has pleaded guilty:

Count 1 – supply prohibited drug greater than large commercial quantity (49.559 kilograms of methylamphetamine).

This offence is pursuant to s 25(2) of the Drug Misuse & Trafficking Act 1985 (“DMTA”). The maximum penalty prescribed is life imprisonment and/or a fine of 5000 penalty units. There is a standard non-parole period applicable of 15 years imprisonment.

Count 2 – knowingly direct activities of criminal group.

This is an offence pursuant to s 93T(4A) of the Crimes Act 1900. The maximum penalty prescribed is 15 years imprisonment. There is no standard non-parole period.

2. The offending occurred between 9 November 2015 and 2 December 2015. The offender was arrested on 1 December 2015 and has therefore been in custody on remand for over five and a half years. The delay in sentencing occurred as a result of the following procedural history. Following investigation and the entry of pleas of not guilty, the matter was listed for trial on 23 April 2018. The offender entered guilty pleas on 26 April 2018 and the matter was set down for sentence hearing later that year. On 23 November 2018, the offender indicated that he wanted to traverse his plea and his then legal representatives sought leave to withdraw. After a number of adjournments, the traversal application came before Flannery SC DCJ in November 2020 and the hearing was completed on 26 March 2021. By judgment delivered on 23 April 2021, the offender’s traversal application was refused.

3. Six co-offenders have previously been sentenced with respect to the drug supply enterprise. Kam Fee Seong was sentenced by Herbert DCJ on 24 November 2017; Jin Yoke Yee Hoh was sentenced in the Magistrate’s Court on 10 May 2017; Chin Hung Ho was sentenced by Madgwick ADCJ on 9 February 2018; Bunny Bannister, Chee Hui Tiew and Chun Keat Chong were sentenced by me on 1 March 2019. The principle of parity therefore looms large in the sentencing process.

The sentence hearing

4. The sentence hearing took place on 27 August 2021. The Crown Sentence Summary became Exhibit A. It included an Agreed Statement of Facts, which the offender contended was tainted by him not having the appropriate interpreter at the time the facts were agreed to. He also contended that he had been less than adequately represented, as due to direct or indirect pressure applied to him, he had agreed to the facts at a time when he did not understand that to which he was pleading. Those contentions were not accepted by Flannery SC DCJ, who held that she was not satisfied that he did not enter his pleas of guilty as a result of the exercise of a free choice in what he believed were his best interests at the time. Nor was her Honour satisfied that when he entered his pleas of guilty he did not understand that he was admitting his guilt of the offences to the court.

5. The offender’s learned counsel conceded that, notwithstanding the above submission, the offender was to be sentenced on the agreed facts. They may be summarised as follows.

6. The agreed facts outlined that in October 2015, police investigated a Malaysian controlled syndicate involved in the trafficking of methylamphetamine that was operating in Australia. The operation involved a “civilian participant”. The offender was a Malaysian national who arrived in Australia on 14 March 2015. Upon arrival, he resided at premises at Parramatta with the co-offender Seong.

7. On 10 October 2015, after recently arriving in Australia from Malaysia, the civilian participant received instructions to fly to Sydney from the Gold Coast. He made his way to Burwood where he met with the offender. This meeting had been arranged by the syndicate. The offender explained to the civilian participant the role he was to play in assisting the syndicate and how much he was to be paid. The offender further explained things such as expenditure and accounting procedures and the civilian participant stayed with him at the premises in Parramatta that night. The following day, the offender assisted the civilian participant to find accommodation.

8. On 13 October 2015, the offender and the civilian participant went to an office in Sydney CBD to obtain a student visa. The offender paid $5,700 on the visa application.

9. Between 14 October and 16 October 2015, the civilian participant received a phone call from the offender telling him to look for a house in which drugs could be manufactured. The civilian participant was subsequently given instructions to meet the offender at Fairfield where the offender had found a house. On 18 October 2015 the civilian participant paid the lease money to the agent for the house at Fairfield. Later the same day, the civilian participant contacted police to report the drug syndicate activity.

10. The offender told the civilian participant to obtain items for the house, including items for manufacturing methylamphetamine. On 21 October 2015, the offender handed the civilian participant an envelope containing $7,000 or $8,000. The civilian participant moved into the house at Fairfield on 24 October 2015.

11. On 5 November 2015 police obtained a Controlled Operation Authority to authorise the civilian participant’s involvement in the enterprise. On 11 November 2015, the offender and the civilian participant went to Cabramatta together. The offender told the civilian participant that he was trying to find some Mah-jong paper for “the teacher”. Members of the syndicate referred to the syndicate drug cook as “the teacher”. They were unable to buy the Mah-jong paper but the offender subsequently organised for some to be sent from Malaysia. Around 17 November 2015, the offender asked the civilian participant to pick up the delivery of Mah-jong paper. The offender confirmed to the civilian participant that the delivery was just paper and not drugs. The offender handed the civilian participant a photo identification card with the offender’s photo on it, with the name “Cheong Shis LOON” together with an address in Burwood. On 18 November 2015, the civilian participant and the offender went to DHL premises in Homebush and collected two packages.

12. On 20 November 2015, the offender gave the civilian participant a SIM card and told him, “the Company’s people that will pass you the Blackberry and cash will contact you on this number.” On the same day, the offender and civilian participant went to the offender’s residence in Parramatta, where they met a third person. The offender said words to the effect of, “I will leave you two alone to do what you have to do” and left. The third person then told the civilian participant how to use the Blackberry and told him it is only for texting as the other functions were locked.

13. Later the same night, the civilian participant received a call from the offender who told him, “Why have you got your phone turned off. People in Malaysia are trying to call you.”

14. The civilian participant then rang a Malaysian number and spoke to a person identified as “Senior” who told him, “You must have received the Blackberry by now. I will send you important details. I want you to find a quiet location where there is no CCTV camera… you can do that tomorrow.”

15. On 21 November 2015 with the assistance of NSW Police, the civilian participant found a location with no CCTV coverage at Lansvale. He told “Senior” of that location. Later the same day, “Senior” told the civilian participant to go to the location at Lansvale, where he would meet up with a male who would ask, “Are you Mr Money”. The civilian participant went to the location where he met up with the co-offender, Chi Hui Tiew.

16. On 23 November 2015, the civilian participant again spoke to “Senior” by phone and was told to exchange the current hire car for a pick-up truck. At 11pm on 26 November, the civilian participant received a phone call from “Senior” and was told:

“Check the Blackberry phone. I have sent you details of where to pick up the teacher.”

A message on the Blackberry identified the pickup location to be The Four Seasons Hotel in Sydney. The civilian participant went to The Four Seasons Hotel and met the co-offender Chin Hung Ho, a Hong Kong national who had arrived in Australia earlier that day.

17. On 27 November 2015, the civilian participant met with Tiew at Lansvale, where Tiew transferred two boxes from his vehicle to the civilian participant’s vehicle. Tiew said, “These two boxes are for testing. There will be more the next trip. It should take two trips to transfer the other boxes”.

18. It was apparent that Tiew had a means of being contacted by those in authority in the syndicate in Malaysia. Prior to the delivery, police surveillance revealed that the co-offender Bannister exited Tiew’s vehicle less than 100m from the location and then returned to the vehicle within about one minute of the civilian participant leaving the location in his car. The civilian participant brought the boxes to the premises at Fairfield, where the teacher and the civilian participant were residing. Upon arrival, the teacher opened one of the cardboard boxes and removed a rectangular shaped laminated wooden shelf. Inside the frame of the shelves were wax blocks which contained the methylamphetamine.

19. On 1 December 2015, during a lawful search of the premises, police located a total of 5.904 kilograms of methylamphetamine that had been extracted from the wax blocks. The purity of the amounts extracted varied between 70.5% and 77.0%. A further amount of methylamphetamine detected at the Fairfield property was of low purity and was regarded as waste product. Police also seized wax blocks which had yet to be processed and upon expert analysis were found to contain a combined total of 1.448 kilograms of pure methylamphetamine.

20. On the same day, a lawful search of premises at Burwood, the residence of Tiew and Bannister, revealed 12 boxes of the same appearance as the 2 boxes located at Fairfield. Expert analysis of the shelves located at Burwood revealed they contained a combined total of 60.125 kilograms of pure methylamphetamine.

21. The agreed facts noted there was insufficient evidence for the Crown to prove beyond reasonable doubt that the offender knew that methylamphetamine was being stored at the Burwood premises or the quantity that was being stored there.

22. On 1 December 2015, police arrested the offender and co-offender Seong at Parramatta and executed a search warrant at their premises. During the search, police found 42.207 kilograms of methylamphetamine in approximately 1 kilogram amounts in snap lock bags. They also located a number of mobile phones and $12400 AUD with documentation in the offender’s name in Bedroom 2 and $3400 AUD in Bedroom 1 with documentation in Seong’s name.

23. The offender participated in an ERISP, in which he admitted living in the premises at Parramatta but denied any knowledge of the drugs found at the unit. He denied having assisted in renting any other premises and denied knowing the address of the premises at Fairfield. When pressed about that, he told police that he helped a friend rent that place but had no idea of the details. He explained that a lease for the premises at Fairfield which was found in his unit was left there by his friend. He told police he helped to pay the rent for the premises at Fairfield but it was “just a formality” and he used the friend’s money. The friend was a “friend of a friend… in Malaysia” by the name of Lin. The person in Malaysia was named “Ho” and the offender agreed that he had been receiving instructions from Ho by phone “to help him look for, for houses and units and places, addresses.” He had no idea what the purpose of looking for these places was.

24. The offender denied receiving any parcels or packages from overseas and indicated he had never been to DHL at Homebush.

25. The offender told police he had purchased Mah-jong paper which someone had mailed and he picked up. When asked where it was now, he answered, “it was taken by, take by the other person, so it was taken away. He took it… so, so that’s what I think it must have been taken by that person…”, referring to Lin. When asked why the Mah-jong paper sent from Malaysia was taken by Lin, he replied, “They were just using my name. I thought it was harmless, it’s just Mah-jong paper. I had no idea what it was for… I thought it was harmless, I thought it was something for a simple, it’s just for, for playing Mah-jong or, I had no idea what it was for.”

26. It was put to the offender that the Mah-jong paper was located at the premises at Fairfield and was used in the extraction process of a large amount of drugs. When asked whether he could tell police anything about that he answered, “No”.

27. The offender confirmed that on 11 November 2015, he attended a restaurant in Burwood with Lin. He also agreed that he purchased about 30 SIM cards from the city, “just as a way of making money”.

28. The offender denied having sold any prohibited drugs since he had been in Australia, he denied knowing the premises at Fairfield were used to store drugs and stated that he did not buy anything for those premises, “just the Mah-jong paper”. He further denied hiring any vehicles recently stating that he did not have a license.

29. On 1 December 2015 the police executed a search warrant at premises at Burwood being a location where the offender and co-offender Hoh met on 17 November 2015 for the civilian participant to hand the offender a car key. At that address, police located $70,360 AUD.

30. The agreed facts further state that the offender knew he was part of a criminal group consisting of at least himself, Hoh, Chong, Seong, Ho (the teacher) and Malaysian “Senior’s”, the civilian participant and others that were engaged in trafficking methylamphetamine. He knew that in carrying out instructions from the criminal group and directing others in relation to:

• Renting premises for the storage and supply of methylamphetamine,

• Obtaining equipment to be used in extracting the methylamphetamine from the shelving,

• Ensuring the quality of the methylamphetamine,

• Handling money and making financial arrangements,

• Hiring vehicles,

• Arranging safe means of communication between participants,

This contributed to the trafficking of methylamphetamine by the syndicate for commercial gain.

31. Telephone intercepts of the phones used by syndicate members revealed that each participant was paid a daily allowance of $30, amounting to $210 per week. The syndicate also covered all fixed living expenses. Calls between the offender and Seong show that the offender was directing drug handling and supply activity by Seong. Further, calls made by Chong reveal that the offender was aware that methylamphetamine was being moved from Perth to Sydney inside a number of vehicles.

32. Exhibit A also included a report from NSW Police which showed the offender had no criminal convictions. His custodial history revealed that in 2019 he had two infractions and in 2020 he had one infraction. Exhibit A also included a statement of Detective Sergeant Michael Van Eyk, a police officer experienced in investigation of offences involving supplying large commercial quantities of prohibited drugs, together with the manufacture of prohibited drugs in New South Wales. He set out a price guide for methylamphetamine in New South Wales for the year 2015, for the various quantities. The range for one kilogram was between $120,000 to $200,000.

33. Exhibit B was a co-offender bundle which included, in relation to each of the co-offenders, the charge sheets or Indictment, agreed facts and remarks on sentence. For the purpose of applying principles of parity, these are referred to below.

34. Exhibit C is the judgment of her Honour Flannery SC DCJ on the offender’s traversal application dated 23 April 2021.

The offender’s evidence

35. The offender tendered a report from Mr A D Diment, Consultant Psychologist, dated 26 July 2021. Mr Diment interviewed the offender via AVL on 21 July 2021 for approximately two hours with the benefit of an accredited Mandarin interpreter. By letter dated 19 July 2021 from the offender’s solicitors, Mr Diment was qualified with the documents in Exhibit A, including the agreed statement of facts. He noted that the offender was co-operative throughout the interview and gave short responses to his questions. He was described by the interpreter as having difficulty understanding some fairly basic words in Mandarin and knowing little of Cantonese. The author described him as “uneducated” and “naïve”.

36. Mr Diment noted no evidence of severe psychopathology and stated that his cognitive systems were intact. He estimated the offender’s intellectual capacity to be in the “low average range”, meaning an IQ between 80 and 90.

37. Mr Diment recorded the offender’s family history. He was born in Malaysia and was the middle of three children. His parents were unaware of his current whereabouts. He attended school in Malaysia until age 13 and described himself as a very poor student. When he left school he started work at a cement factory. He was thirty two years of age when he arrived in Australia in March 2015. The offender had no medical issues, but described experiencing hardship in custody as his English was not good, he could not get work and he found the food unpalatable. He told Mr Diment that he hadn’t had any breaches in gaol.

38. With respect to his involvement in the offences, the offender told Mr Diment the following:

“After I came to Australia I didn’t find work. I was asked to help people find a place to rent and the basic situation was that I didn’t know about the drugs. I was shocked about that. My first lawyers wanted me to plead guilty but they used Cantonese interpreters and I didn’t really know what was happening. I still maintain that I had no knowledge of drugs and that is why I wanted to say I wasn’t guilty at all.”

He went on to say, “I do regret what happened but I still did not know about the drugs and I am not guilty about that (sic). I realise that can’t be changed now and that has been a problem for me.”

39. On psychological assessment for mood, the offender was assessed as suffering severe depression, extremely severe anxiety and severe stress. On personality assessment he was assessed as being at “marked” risk of having significant problems with depression, anxiety, tension, worry and feeling demoralised.

40. Mr Diment opined that the offender was assessed as being above-average for clinical anxiety and depression. His symptoms were consistent with suffering a persistent depressive disorder with anxiety, which he required an appropriate continual medical and psychological assessment, monitoring and treatment of his anxiety/depression.

41. In terms of his prospects for rehabilitation, the author opined that the offender expressed, without prompting, regret as to his involvement in a criminal group stating that he was “against drugs” and that he had supportive parents and family living in Malaysia and his main goal is to get back to his family as soon as possible.

39. Mr Diment was required for cross-examination on his report. He was challenged as to his finding that the complainant was below-average intelligence based on his understanding of the offender’s knowledge of the Mandarin and Cantonese languages. Regarding his assessment of the offender’s IQ of 80-90 (an estimate in the low-average range) Mr Diment agreed that if in fact the offender had a high-level of use of the Mandarin language that it would affect that estimate. However, Mr Diment opined that the IQ range was an estimate based on the offender’s educational achievement, occupational achievement and the quality of his responses on interview.

40. Mr Diment was also challenged as to his opinion that the account given by the offender was truthful and consistent. In relation to the offender telling him he hadn’t had any breaches in gaol, he was asked whether if in fact he had three breaches, that would change his view. Further, he was asked whether if the offender in fact spoke Cantonese and not Mandarin, that would have any effect on his view, to which Mr Diment replied, “I don’t know how to answer that”.

41. It was further put to Mr Diment that his conclusion that the offender was an unsophisticated person was not consistent with the agreed facts of him directing a criminal group, with which the witness agreed. He also agreed that whilst he regretted his involvement in the criminal group the offender maintains that he was not guilty in that he had no knowledge of the drugs.

42. In re-examination, Mr Diment clarified that it was the offender’s position that he had signed the agreed facts but there were still things in it that he challenged. Mr Diment still adhered to the opinions he had expressed in his report.

The Crown submissions

46. The Crown relied on a detailed written outline of submissions. In assessing the objective serious of the offending in Count 1, it was noted that the offender pleaded guilty to supplying nearly 50 kilograms of methylamphetamine, an amount 99 times the large commercial quantity threshold. Whilst not the sole, or principal, determinant in assessing objective seriousness, the Crown submitted there was “a gradation in seriousness related to quantity reflected by the penalties involving commercial or large commercial quantities of prohibited drugs”, referring to R v Macdonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34. It was submitted the role of each offender is of paramount importance in assessing the objective seriousness, and that deterrent sentences are necessary, referring to R v Shi [2004] NSWCCA 135. The Crown submitted that the offender was one of two key organisers in Australia for each of the drug supply operations, just below the syndicate members in Malaysia. It was noted the offender was not charged in relation to the operation involving the transportation of methylamphetamine from Perth to Sydney. He did, however, play a significant role in the operation involving extraction of methylamphetamine from wax blocks.

47. The Crown submitted that the offender was the first to arrive in Australia and did a large amount of coordination and organising of other members on behalf of the syndicate. This included setting up meetings, arranging SIM cards and directing others as to what to do. It was further submitted the offender was liable for both the methylamphetamine found at the Fairfield premises (i.e., what had been delivered and was in the process of extraction) and the large amount of methylamphetamine found at the Parramatta residence where he resided. On the basis of the evidence of Detective Sergeant Van Eyk, the methylampthetamine under the offender’s control had a value of between $5.9 and $9.9 million dollars. The Crown thus submitted that the objective seriousness of the offending was well above the mid-range.

48. In respect of Count 2, the Crown submitted the offender’s role in directing the criminal group was relevant to an assessment of objective seriousness in Count 1 and therefore this charge does not have a significant role to play in the sentencing exercise. Any penalty imposed could be concurrent. The Crown conceded that whilst the offender was directing the criminal group, he was not the principal, and was receiving instructions from Malaysia.

49. In respect of the offender’s failed application to traverse his plea entered to an amended Indictment after negotiations on 26 April 2018, the Crown submitted that the offender is not to be punished for his application. However, the court would take into account in assessing the utilitarian value of the plea that the traversal application involved eleven adjournment applications and four court days to hear and determine. An application to withdraw a plea has been identified as relevant to the utilitarian value of the plea – see R v Daley [2003] NSWCCA 109 at [14]. The Crown submitted the utilitarian value of the late plea in these circumstances warrants a discount of 5%.

50. With respect to the offender’s subjective case, the Crown submitted the offender had not demonstrated remorse for his offending. Further, his prospects of rehabilitation must be uncertain and a finding could not be made that he is unlikely to reoffend.

51. The Crown submitted that whilst the offender does not have a criminal history in Australia, he came to Australia for the purpose of committing the offences for which he is being sentenced. His lack of a criminal history should therefore not carry much weight in the sentencing process.

52. The Crown accepted that the offender does not speak English and this may impact upon his time in custody. That factor alone would not justify a finding of special circumstances.

53. The Crown submitted that both general and specific deterrence have a key role to play in the sentencing exercise, relying on Parente v R [2017] NSWCCA 284.

54. With respect to the application of the principle of parity, the Crown outlined significant sentencing aspects in respect of each of the six co-offenders and submitted that parity would be achieved by the offender receiving a longer sentence than those imposed on each of the six co-offenders, whilst noting that his case was most similar to that of Chong.

55. In her oral submissions, the Crown rehearsed her submission that the offender was at the higher end of the hierarchy of co-offenders. In response to the offender’s submissions, the Crown submitted there should be no leniency in sentencing based on the delay caused by the offender’s traversal application relying on R v Hathaway [2005] NSWCCA 368. The offender had been arrested and charged while still involved in the drug supply operation on 1 December 2015. The matter had then proceeded routinely through the court system until April 2018, when the Crown was ready to proceed to sentence. The delay in hearing of the traversal application was substantially contributed to by numerous applications for adjournment on the part of the offender. Once the application was dismissed, it was promptly listed for sentence. The Crown submitted that in that process the offender was not left in a state of suspense or uncertainty nor did he progress his rehabilitation, and he was not being sentenced for a stale crime.

56. On the question of hardship whilst in custody, the Crown submitted that the onus was on the offender to establish that such hardship was exceptional, relying on R v Shortland [2018] NSWCCA 34. The fact that the offender had limited English and no ties in the community did not amount to hardship but may be taken into account in the assessment of special circumstances.

57. In relation to the offender’s subjective case based on the report of Mr Diment, the Crown submitted his conclusions were based on the self-reporting of the offender. Any anxiety and depression he suffered was not unusual for persons in custody and there was no causal nexus between those conditions and his offending. Further, the fact that he would be deported is not a relevant matter on sentence.

58. The Crown submitted that it was open to the court to reject the opinions expressed by Mr Diment as they were based on incorrect statements of fact. The court would, in any event, treat with caution his conclusions as to the intellectual capacity of the offender. The principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 had no application here.

59. Finally, in applying the principle of parity, the Crown rehearsed her submissions in respect of the offender being at the highest level in the hierarchy.

The offender’s submissions

60. The offender also relied on a detailed written outline of submissions. With respect to the almost six years in which he has been in custody since 1 December 2015, it was submitted that such an inordinate delay was not of his doing. In Exhibit 1, he had been described as “uncultured” and by the interpreter as being “uneducated” and “naïve”. His level of Mandarin and what little Cantonese he speaks was poor and the difference between the languages in Malaysia by comparison to that spoken in Hong Kong and mainland China may have explained his misunderstanding as to the plea. It was submitted that the delay was a combination of his lawyer’s conduct amounting to him not being afforded the level of legal representation to which he was entitled. The delay was therefore relevant to his sentencing and may entitle the offender to leniency.

61. The offender submitted that he had been assessed as having an IQ of 80-90, in the low-average range. This generated hardship in that in his mind he was being sentenced for a matter that he wished to defend and in which he has a justifiable sense of grievance, in that he was not legally represented to the extent expected and that he was entitled to.

62. It was submitted that he suffers further hardship from being a foreign national, with limited English and no family in Australia.

63. The offender placed reliance on not having the best of legal representation. He submitted:

“A barrister that breached the rules by taking on a direct access brief without putting in writing or orally on the account of the offender those things that the rules require be disclosed in writing. A solicitor that was reversed briefed one month before the trial and on her own admissions took no steps to read the full brief of evidence.”

64. The offender submitted the court would take into account that he had no criminal history in Australia and there was nothing to suggest he had any in Malaysia. He came before the court as a person of good fame and character and the risk of reoffending was “unlikely on the material”. He was a person of limited education and intelligence and had clinical anxiety and depression for which, given his language barrier, it would be almost impossible for him to obtain any real help whilst in custody.

65. Notwithstanding his misgivings about the facts, the offender conceded that he is to be sentenced on the agreed facts.

66. It was noted that the offender was not being sentenced for the drugs at Burwood, namely 60.125 kilograms of methylamphetamine. With respect to the drugs found at Parramatta, Seong in the record of interview had taken responsibility for the drugs that were found in his room. It was submitted that in respect of the drugs found at Fairfield, there was no evidence that the offender could in fact exercise any control over those drugs, “but for assisting in locating that address, he had no other real connection with that address”. In those circumstances, the court could not be satisfied beyond reasonable doubt that the offender was at the level in the hierarchy as submitted by the Crown. Rather, he had a lesser role, namely arranging locations, putting others in a position to take instructions directly and otherwise was never trusted with possession or control of the drugs.

67. It was submitted that the offender’s reward was nominal, comprising a daily fee to cover expenses. There was no evidence to suggest that he was to share in any reward from the drug operation.

68. It was further submitted the court would not be satisfied that he was the “Australian observer”. He had limited functions, which gave rise to the question as to whether he was fully appreciative of the full extent of the quantities involved. It was submitted, “there is no evidence to suggest other than assist the civilian participant secure the Fairfield location and secure Mahjong paper using his own identity he never returned to deal with the activities and or inspect the product.” Further there was no evidence that he directly took part in extracting the substance. In those circumstances, the court could not be satisfied beyond reasonable doubt that the offender was fully apprised of all aspects of the operation and at the level in the hierarchy as submitted by the Crown.

69. It was submitted that the offender’s association with the drug operation was based on the claim of the civilian participant which the offender had been deprived of any opportunity to challenge. It was submitted:

“It is not uncommon for individuals to be provided with limited information, knowing it is about drugs but not being fully apprised of the nature of the drug and the true quantities involved.”

70. It was submitted the offender’s level was less than the others as he was not entrusted with extracting it or storing it and there was nothing to suggest that his role was elevated above the others in dictating what occurred with the drugs.

71. It was submitted that there should be no reduction in discount for the utilitarian value of the offender’s plea given the circumstances of the traversal application.

72. In assessing the objective seriousness of the offending, it was submitted that his conduct was consistent with following instructions as to finding locations for others to use and not being trusted with dealing with the drugs or having possession or control of them. In assessing his role, there were periods of time when he was not involved at all and he was “just not trusted with the valuable drugs”. Further, he had used his own name to secure the Mah-jong paper. It was submitted that whilst an inference may arise that he had an understanding of what was occurring, that understanding was limited and directed by the people providing him instructions on the limited role he had.

73. Whilst a common sense inference could be drawn that the offender was involved in the operation for profit, there was no evidence of any amount received or to be received by him other than having his expenses paid.

74. It was submitted that this was not the worst case warranting the maximum penalty, by reference to the offender’s role.

75. It was submitted that his application to traverse his plea should not subtract from the utilitarian value of the plea and that should be assessed at 10-15%. He also acknowledged some contrition on his part, to the psychologist Mr Diment.

76. It was submitted the offender’s prior good character was of significance and should be given substantial weight.

77. It was submitted that on the material there was no apparent concern that this offender was likely to reoffend. His limited to non-existent English prevented him from undertaking meaningful courses and to progress his rehabilitation.

78. The offender set out well-established principles relating to the application of parity in sentencing. It was submitted that any sentence that would see the offender spend more time in custody than his co-offenders would give rise to a disparity. It was submitted that on the facts here, the level of criminality of the offender was lower than the co-offenders and that his time spent in custody would reflect adequate punishment for the level of offending involved. It was submitted his role was clearly lower than that of the others as he was not dealing with the drugs directly and had no first-hand account of the quantities involved. Rather, he was tasked with indirect activities away from the drugs themselves.

79. In his oral submissions, learned counsel for the offender rehearsed his submissions that any delay in sentencing should not lie at the feet of the offender. Exhibit 1 established that the offender was of a low education and that the language barrier was a contributing factor to any misunderstanding concerning the agreed facts.

80. It was acknowledged that the offender had made no progress in his rehabilitation whilst on remand as he was not eligible for any courses. Further, the court would accept Mr Diment’s findings as to his low intellect and hardship in custody which would establish special circumstances.

81. Learned counsel rehearsed his submissions concerning the offender’s prior good character and his role in the operation. It was submitted that there was very little evidence upon which to conclude beyond reasonable doubt that the offender was at the top level of the hierarchy in Australia. He was not fully apprised of all aspects of the operation but rather his role was limited to the premises at Fairfield and obtaining the Mah-jong paper. Thus his apparent function was identifying locations and communicating with people.

82. Counsel further rehearsed his submissions as to the offender not being entitled to any substantial reward from the operation and that there was nothing to suggest any ongoing risk of offending.

Determination

83. Section 3A of the Crime (Sentencing Procedure) Act 1999 (“CSPA”) sets out the purposes of sentencing as follows:

“3A    The purposes for which a Court may impose a sentence on an offender are as follows:

(a)    To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)    To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

84. An assessment of the objective seriousness of the offending in Count 1 is principally determined by the role of the offender in the drug supply operation together with the quantity of prohibited drugs involved, in this case 49.559 kilograms of methylamphetamine which is more than 99 times the prescribed large commercial quantity. In characterising the role of the offender, it must be borne in mind that the drug supply operation was controlled from Malaysia with numerous operatives or functionaries in Australia with differing roles and levels of participation. As in many like cases, the full nature and extent of the enterprise is not known to the court.

85. In assessing the offender’s role here, I have regard to the following matters. First, the offender arrived in Australia on 14 March 2015 for the purpose of committing the offences with which he is charged. He thereafter resided at the premises in Parramatta with the co-offender Seong, where a large proportion of the drugs were located. On 10 October 2015, he met the civilian participant and explained to him the role he was to play in assisting the syndicate, including expenditure and accounting procedures and how much the civilian participant was to be paid. Subsequently, he went with the civilian participant to the Sydney CBD to obtain a student visa and paid the fee of $5700 on that application.

86. Between 14 and 16 October 2015, the offender had located premises at Fairfield for the civilian participant to rent and subsequently paid the civilian participant either $7000 or $8000 for expenses in relation to that property.

87. In November 2015, the offender organised for the purchase of Mah-jong paper to be sent from Malaysia and arranged for the civilian participant to pick up the delivery, confirming that it was “just paper and not drugs”. The offender provided the civilian participant with a photo identification card in the offender’s name for the purpose of collection of the goods at DHL premises on 18 November 2015.

88. On 20 November 2015, the offender gave the civilian participant a SIM card and told him he would be given a Blackberry for those in charge of the operation to contact him on. On the same day, the offender and civilian participant went to the offender’s residence in Parramatta where they met a third person who provided the Blackberry to the civilian participant. Later that night, the offender contacted the civilian participant to tell him that people in Malaysia were trying to call him.

84. Thereafter, the agreed facts do not establish that the offender was involved in the drug supply operation that took place at the Burwood premises and I am not satisfied that the offender knew that a total of 60.125 kilograms of pure methylamphetamine were being stored there. I am however satisfied that the offender was well aware of the 42.207 kilograms of methylamphetamine located at the premises he shared with Seong at Parramatta, together with the mobile phones and cash found on the premises. Following his arrest, I am satisfied that the offender was less than frank about his knowledge of the premises at Fairfield, his denial of receiving any parcel from overseas or having been to the DHL premises at Homebush, his explanation for the purchase of the Mah-jong paper and his purpose for purchasing thirty SIM cards. He also lied when denying that he had hired any vehicles. The offender’s role was therefore one of organising others’ participation in the drug supply operation. Whilst that role cannot be characterised with precision in terms of the hierarchy, it was clearly towards the top of the hierarchy in Australia and was an important component of the operation. It is also clear that the offender received instructions from those controlling the operation in Malaysia and had access to large amounts of money in cash at times. Together with the large quantity of prohibited drugs involved, the objective seriousness of the offending was well above the mid-range for an offence pursuant to s 25(2) of the DMTA.

85. In assessing the objective seriousness of the offending in Count 2, the agreed facts state that the offender knew he was part of a criminal group that was engaged in trafficking methylamphetamine. His role was to carry out instructions and to direct others in relation to the renting of premises for the storage and supply of methylamphetamine, obtaining equipment to be used in the extraction process, handling money and making financial arrangements, hiring vehicles and arranging means of communication between participants by provision of SIM cards and arranging for Blackberry phones. All of this contributed to the trafficking of methylamphetamine by the syndicate for commercial gain. Whilst the objective seriousness of the offending was within the mid-range for an offence pursuant to s 93T(4A), I accept the Crown’s submission that all of those matters were relevant to the assessment of objective seriousness of the offending in Count 1 and therefore Count 2 does not have a significant role to play in sentencing the offender, and any penalty imposed will be concurrent with that imposed for Count 1.

86. It is well established that general deterrence is important in sentencing for drug supply offences. A clear message must be sent to like-minded members of the community that Parliament had prescribed severe maximum penalties and that the courts will impose condign punishment in appropriate cases. The maximum penalty prescribed for Count 1 is life imprisonment and there is a standard non-parole period applicable of 15 years imprisonment. The maximum penalty prescribed for Count 2 is 15 years imprisonment. The maximum penalties prescribed, together with the standard non-parole period of 15 years imprisonment for Count 1, indicate the seriousness with which Parliament views these criminal offences and are guideposts in the sentencing process.

87. Specific deterrence is also important as the offender must understand that if he was to reoffend he would be subjected to increasingly lengthy periods of imprisonment. It is a reasonable inference that the offender was motivated by the prospect of considerable financial gain to engage in this criminal activity.

88. The offender is entitled to a utilitarian discount for his plea of guilty. The Crown submits that the discount should be 5% on sentence whereas the offender has submitted a range of between 10-15%. Two issues arise in respect of the offender’s plea. The first is the impact upon the utilitarian discount caused by the offender’s traversal application. The second relates to whether the plea necessarily leads to a finding of contrition and remorse on his behalf. A subsequent matter involves whether the delay in sentence caused by the traversal application should lead to any leniency on sentence.

89. First, the offender was entitled to apply to traverse his plea, which application was refused by Flannery SC DCJ. Notwithstanding that he now concedes that he is to be sentenced in accordance with the agreed facts, he adheres to his contention that he had no knowledge of the drugs the subject of the offences. In those circumstances, I find that his plea of guilty has facilitated the course of justice, thereby avoiding a lengthy trial, but it does not evidence any great contrition or remorse for his offending. I am not persuaded in the circumstances that his expression of remorse to Mr Diment, namely, “I do regret what happened but I still do not know about the drugs and I am not guilty about that” provides the basis for a finding of remorse as a mitigating factor. In all the circumstances, I find that he is entitled to a utilitarian discount of 10% on sentence.

90. Counsel for the offender has advocated that there should be some leniency in the sentencing process as a result of the delay in sentencing. The relevant principles are well-established. Namely, delay may result in leniency in sentencing:

1. Where the delay leads the offender being left in a state of suspense or uncertainty;

2. Where the offender has demonstrated progress towards rehabilitation during the delay;

3. If the sentence is for a stale crime, it calls for a measure of flexibility of approach – see R v Todd [1982] 2 NSWLR 517 at [519]; Mill v The Queen (1988) 166 CLR 59 at 64-66; Blanco v R [1999] NSWCCA 121; and Ozan v R [2021] NSWCCA 231.

Here, the offender was not left in a position of suspense or uncertainty during the period following which he pleaded guilty on 26 April 2018 until the finalisation of his application to traverse his plea on 23 April 2021. I accept the Crown submission that much of the procedural delay in the intervening period occurred as a result of successive applications by the offender to adjourn the hearing of the application. I have also had regard to the dispositive reasoning of her Honour Flannery SC DCJ in refusing the application and I do not accept the submission made on behalf of the offender that he misunderstood the plea he entered as a result of the use of a Cantonese interpreter and that he did not have “the best of legal representation” and was pressured into entering his plea. Each of those submissions are refuted by her Honour’s findings, which I am bound by and accept.

96. Secondly, the offender conceded by his counsel that he had made no progress towards rehabilitation during the period of any delay. Thirdly, the offender is not being sentenced here for a “stale crime” which would call for a measure of understanding and flexibility of approach. I have therefore not taken the delay caused by the offender’s traversal application into account as a mitigating factor on sentence.

97. I have taken into account that the offender has no criminal history and would otherwise be regarded as a person of good character. It is well settled that prior good character of a person involved in a drug supply offence is generally to be given less weight as a mitigating factor on sentence. Given the level of planning and quantity of prohibited drugs involved here the financial gain was potentially very significant to both the offender and other syndicate members.

98. The opinions expressed by Mr Diment in Exhibit 1 must be approached with some circumspection, based as they are on the self-reporting of the offender who has not given evidence. It is clear that the offender had not been entirely frank with Mr Diment, both as to his knowledge of the Mandarin and Cantonese languages and whether he had any infractions whilst in custody. I accept however that the offender had a low level of education and was generally an unsophisticated person. Whilst he may have clinical signs of depression and anxiety, they result from his current incarceration and there is no evidence to establish they were causative of his involvement in the offences.

99. I am satisfied that the offender’s lack of knowledge of the English language and the absence of his family amount to exceptional circumstances warranting a finding of hardship in custody. They also amount to special circumstances pursuant to s 44(2) of the CSPA and I therefore intend to vary the ratio between any head sentence and his non-parole period.

100. As outlined above, the application of the principle of parity looms large in the sentencing process here. Parity is a principle of equal justice. Like cases are to be treated alike and material differences may be taken into account. Of the six co-offender’s sentences, those of Yoke and Bannister may be disregarded in terms of parity. The offender here was born on 15 January 1983 and was 32 years of age at the time of the offending. He is now 38 years of age. He is being sentenced in respect of Count 1 of suppling 49.559 kilograms of methylamphetamine, a similar amount to Seong (a total of 45 kilograms), a greater amount than Chong (30 kilograms with an expectation of 40 more kilograms) and less than Tiew (67.477 kilograms). Each of the co-offenders had different roles to play in the drug supply operation, different motivations for offending and subjective circumstances to take into account. Also, each of the co-offenders had varying discounts taken into account. The parity principle allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances – see Lai v R [2021] NSWCCA 217 at [67].

101. The co-offender Ho was charged in relation to much smaller amounts of methylamphetamine. He was 59 years of age and had hoped to expunge a drug debt of $200,000. The quantity of methylamphetamine was held to be not significantly into the large commercial category, however as the cook he was “a trusted and key player in the syndicate”. He was also entitled to a 25% discount on sentence and a finding of special circumstances was made. It was further held that his custody would be onerous due to his age, poor health and language barrier. He was sentenced to a head sentence of 13 years and 6 months and a non-parole period of 10 years imprisonment.

102. The co-offender Seong was 35 years of age and had hoped to expunge a gambling debt of $10,000, he had been diagnosed with a gambling disorder and was sentenced in respect of two counts of supply with one Form 1 matter. He was found to suffer hardship in custody and was entitled to a 25% discount on sentence. He had no criminal record and had given minor assistance to authorities. The sentencing judge found special circumstances and he was sentenced to a head sentence of 11 years with a non-parole period of 7 years and 10 months.

103. The offender Chong was found to have had an addiction to methylamphetamine and a gambling debt which led to his involvement in the operation. I further found that he would suffer hardship in custody and he was entitled to a 10% discount on sentence. On the similar offence pursuant to s 25(2) of the DMTA, he was sentenced to a head sentence of 15 years imprisonment and a non-parole period of 10 years. On the offence pursuant to s 93T(4A) of the Crimes Act 1900, he was sentenced to a fixed term of 5 years imprisonment to be served concurrently. There was one further charge on a section 166 certificate, in respect of which a conviction was entered with no further penalty.

104. I am satisfied, having regard to the objective seriousness of the offending in Count 1, that no sentence other than imprisonment is appropriate. The appropriate starting point is a sentence of 16 years imprisonment with a discount of 10% and the appropriate head sentence is 14 years and 5 months imprisonment. Having found special circumstances, I intend to vary the statutory ratio between head sentence and non-parole period and order a non-parole period of nine years and five months imprisonment. The sentence will commence on 1 December 2015.

105. In respect of Count 2, having regard to the objective seriousness of the offending, I intend to impose a fixed term of five years imprisonment, to be served wholly concurrently with the sentence for Count 1.

Orders

106. I hereby order as follows.

1. You are convicted of the offence in Count 1, that between 10 November 2015 and 2 December 2015, in Parramatta and other diverse places in the State of New South Wales, you did supply an amount of a prohibited drug, namely, methylamphetamine in the amount of more than 1 kilogram being an amount not less than the large commercial quantity applied to that prohibited drug.

2. I sentence you to a non-parole period of 9 years and 5 months to commence on 1 December 2015 and to terminate on 30 April 2025.

3. The balance of term will be a period of 5 years to terminate on 30 April 2030.

4. You are convicted of the offence in Count 2, that between 9 November 2015 and 2 December 2015 in Burwood and other diverse places in the State of New South Wales, you participated in a criminal group whose activities are organised and ongoing by directing activities of the group, knowing that it was a criminal group and knowing that the participation contributes to the occurrence of criminal activity, namely, the supply of a large commercial quantity of a prohibited drug, pursuant to s 93T(4A) of the Crimes Act 1900.

5. I sentence you to a fixed term of imprisonment of five years to commence on 1 December 2015 and terminating on 31 November 2020.

6. I order pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, that cash in the approximate sum of $1240.00 found at 61/35 Campbell Street, Parramatta on 1 December 2015 be forfeited to the State.

7. I give leave pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989 that the property forfeited herein be disposed of forthwith.

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Decision last updated: 15 October 2021