R v Chu

[2021] NSWDC 328

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Chu [2021] NSWDC 328

Hearing dates:

7 May 2021

Decision date:

21 May 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Sentenced to a term of 9 years imprisonment with a non-parole period of 6 years

Catchwords:

CRIME — Drug offences — Supply prohibited drug – Possess prohibited drug

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), (2)

Criminal Procedure Act 1986 (NSW) s 166

Poisons and Therapeutic Goods Act 1966 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 3A

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Quoc Toan Chu (Offender)

Representation:

Counsel:
Ms Sawagid (Crown)
Mr Dhanji SC (Offender)

File Number(s):

2020/113017

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender, Mr Chu, stands to be sentenced having pleaded guilty to the following offences; that on 15 April 2020 in Yagoona he supplied an amount of prohibited drug, namely 3,322.50 grams of cocaine being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act and has a maximum penalty of life imprisonment and/or a fine equivalent to 5,000 penalty units and there is an applicable standard non-parole period of 15 years.  That charge was sequence 9 of the charge sequences. 

2. The second offence is that on 15 April 2020 in Yagoona he supplied a prohibited drug, namely 19.16 grams of 3,4-methylenedioxy-methylmphetamine. That is an offence under s 25(1) of the Drug Misuse and Trafficking Act and has a maximum penalty of 15 years’ imprisonment and/or a fine of $200,000 and there is no applicable standard non-parole period.  That charge is sequence 15. 

3. The third charge is that on 15 April 2020 in Yagoona he supplied an amount of prohibited drug namely 7,418.36 grams of methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That too is an offence under s 25(2) of the Drug Misuse and Trafficking Act and has a maximum penalty of life imprisonment and/or a fine equivalent to 5,000 penalty units and there is an applicable standard non-parole period of 15 years and that charge is sequence 22.

4. The fourth charge is that on 15 April 2020 in Yagoona the offender supplied an amount of a prohibited drug namely 2,047 grams of gamma butyrolactone, being an amount which was not less than the commercial quantity applicable to that prohibited drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act and has a maximum penalty of 20 years imprisonment and/or a fine equivalent to 4,200 penalty units and there is an applicable standard non-parole period of ten years. 

Form 1

5. There are three Form 1s.  When sentencing the offender on sequence 9 which is the supply large commercial quantity of cocaine offence, the offender acknowledges his guilt in relation to an offence of deal with property being $10,350 in Australian currency for which there are reasonable grounds to suspect is the proceeds of crime and asks that I take that in to account when imposing sentence on that count.  When sentencing the offender on sequence 22 which is the supply of large commercial quantity of methylamphetamine offence, the offender acknowledges his guilt in relation to two offences of possess prohibited drug and asks that I take those offences into account when imposing sentence on that count.  When sentencing the offender on sequence 15, being the supply of 3,4-methylenedioxy-methylmphetamine offence, the offender acknowledges his guilt in relation to three offences of possess prescribed restricted substance under the Poisons and Therapeutic Goods Act and asks that I take those offences into account when imposing sentence on that count.

6. The nature of all of the offences on the three Form 1s is such that they have a limited impact upon the sentence to be imposed on the offence to which they relate. 

7. The offender is also to be sentenced for eight offences of possess prohibited drug under the Drug Misuse and Trafficking Act which are on a certificate under s 166 of the Criminal Procedure Act.  The Crown accepted the drugs the subject of those charges were not possessed by the offender for the purposes of supply. 

The Facts

8. The facts are agreed and the following is taken from them. As part of an investigation into what is referred to as members of a drug trafficking organisation operating in Sydney, on 14 April 2020 a search warrant was obtained for the premises at 16 Power Street, Yagoona.  This was the residence of the offender at the time.  At 10.07am on Wednesday 15 April 2020 the police executed the search warrant at those premises.  A number of persons were there and they were spoken to.  This offender was present during the search and nominated a bedroom as his.  He indicated nobody else stayed in the room.  When asked if prohibited drugs were in there his reply was “Just search it”.  Within the bedroom indicated to be the offender’s, police located a number of items of interest which are described fully in the facts which I will proceed to outline.

9. Within a cooler bag stored in the bottom of the built-in wardrobe, police located one heat-sealed pouch containing one freezer bag containing white powder and one freezer bag with an orange substance.  This substance was analysed ultimately and was identified as 1.33 grams of the prohibited drug ephedrine and 2.7 grams of the prohibited drug cocaine and they are offences which are on a Form 1.  It was also there located one heat-sealed bag containing white powder.  The substance within that bag was ultimately analysed and shown to be 979.3 grams of cocaine. 

10. There was a further one opened heat-sealed bag containing a freezer bag containing white powder.  The substance within that bag was ultimately analysed and was found to contain 708.9 grams of cocaine.  In the same location two freezer bags were apparently tied together containing white powder.  The content of those bags was analysed and identified as being 87 grams of cocaine.  Within the built-in wardrobe police observed a drawer locked by way of a combination-style padlock.  The offender told the police the combination was on a set of keys.  The police ultimately had the offender unlock the padlock himself.  Within the draw the following was found; a plastic resealable bag containing a white hard substance.  The contents of the bag was analysed and was ultimately found to be 255.5 grams of cocaine.  The offender’s DNA profile or a profile matching the offender’s DNA profile was obtained from the seal of the bag.  Heat-sealed bags containing plastic resealable bags each containing white powder were also found.  The contents of those bags were analysed and they were found to contain 1,280.8 grams of cocaine.  A mixed DNA profile was obtained from the seal and the offender could not be excluded as a contributor to the mixture.

11. $10,350 in cash made up of Australian $50 notes were also found and that is the subject of one of the offences on one of the Form 1s which I referred to earlier. 

12. A piece of aluminium foil containing a crystal substance which ultimately was identified as being 12.4 grams of methylamphetamine; a freezer bag containing a tied freezer bag of white substance, three plastic resealable bags containing a white substance and a yellow Post-it note were also found.  The substances within those bags were analysed and found to be 12.86 grams of methylamphetamine. 

13. There was also a freezer bag containing a crystalline substance, or crystal substance.  The substance was analysed and it was found to be 61.6 grams of methylamphetamine.  There were two plastic resealable bags containing a white rock substance; one freezer bag containing white powder.  The substance within that bag was analysed and was found to be 11.9 grams of cocaine.  There was a plastic resealable bag containing a black rock substance, one plastic resealable bag containing a brown rock substance and one freezer bag containing also a brown rock substance.  Those substances were analysed and they were found to be 19.16 grams of 3,4-methylenedioxy-methylmphetamine, MDMA.  There was a specimen jar containing a plastic resealable bag containing several whole rectangular tablets, a plastic resealable bag containing one Valium tablet.  A plastic resealable bag containing a brown rock substance, and a freezer bag containing what is described as white shards.  The substance within one of those bags was found to be 4.9 grams of methylamphetamine upon analysis.  One box of Valium containing six blister packets.  This was analysed and found to contain 10 milligrams of diazepam which is on one of the form 1s.

14. There was a box of Suboxene containing 164 doses.  This substance was analysed and found to contain 6.56 grams of buprenorphine.  That too is on one of the Form 1s.  Two bottles of Kalma tablets which was analysed and found to contain 26.05 grams of alprazolam which is an offence on one of the Form 1s.

15. The police also located a tracking device in that area.  Against one side of the bedroom wall was a TV unit.  Underneath this unit police located a blue coloured insulated shopping bag with an avocado design. It contained the following items.  One transparent resealable plastic bag labelled Hercules which contained a partially compressed white crystalline substance, the substance was analysed and found to be 986 grams of methylamphetamine.  One transparent resealable plastic bag also labelled Hercules which contained a white crystalline substance in clear packaging.  The substance in that bag was analysed and found to be 756.3 grams of methylamphetamine.  One sealed transparent vacuum bag which contained a white crystalline substance.  That substance was ultimately analysed and found to be 996.3 grams of methylamphetamine.  One transparent resealable plastic bag also labelled Hercules which contained a white crystalline substance in clear packaging. The substance was ultimately analysed and found to be 254.3 grams of methylamphetamine.

16. In front of the TV unit police located a brown-coloured cardboard box labelled Rapid Move.  The box contained a white plastic bucket, numerous stained rags or fabric, a stained photo book, fabric shopping bags and the following items.  Six plastic bottles containing residue in liquid and various plastic bags.  Each of those bottles and bags were examined and found to contain traces of methylamphetamine and various other prohibited drugs.  One of the bottles was found to have 277 grams of what is described as a two-phase liquid.  This liquid had been measured as being 237 grams, identified upon analysis as containing 2.5% methylamphetamine, one phenyl, two propanone and N-acetyl methyl amphetamine.  Those substances, as I understand it, relate to sequence 41 on the 166 certificate. 

17. Within the TV unit police located a transparent rectangular shaped glass dish which was covered in clear cling wrap and contained an opaque orange-maroon coloured liquid that also had orange coloured crystalline chunks throughout. The substance was analysed and ultimately identified as being 448 grams of three substances, cocaine 27.5 %, benzocaine and lidocaine. It too forms an offence or supports an offence on the s 166 certificate. There was a transparent plastic container labelled Colad which contained a clear colourless liquid that filled approximately 40% of the container volume. The liquid was analysed and identified as being 751 grams of methylamphetamine that was less than 1% of that substance and there was another substance which I will not read onto the record. The offender’s fingerprint was found on the side of the container.

18. Within the built-in wardrobe in the same room and on the desk next to the wardrobe police variously located numerous plastic and glass containers each containing various amounts of liquids. There was 32 grams of methylamphetamine and various other drugs which supports a sequence on the 166 certificate, sequence 43. 651 grams of cocaine which was 18.5% and various other drugs that relates to sequence 44 on the s 166 certificate. 231 grams of methylamphetamine as to 41% which as I understand it relates to sequence 45 on the 166 certificate. 4 grams of cocaine as to 42.% and other drugs which relates to sequence 48 which is on a 166 certificate. Also on the desk was an extractor fan set up. The face plate grill area of this fan was swabbed and found to contain methylamphetamine, cocaine and ecgonine methyl ester. On the floor at the end of the bed within the same room police located two plastic containers each contained an amount of liquid. These liquids were analysed and found to contain 213 grams of methylamphetamine and various other drugs; that relates to sequence 46 which is a possess prohibited drug offence on the 166 certificate. 169 grams of cocaine as to, as I understand it, 27%; Benzocaine and lidocaine and various other drugs and that relates to a possess prohibited drug offence which is sequence 47 on the 166 certificate.

19. Against one wall of the bedroom police located a large fish tank.  Within the storage area under this fish tank police located five plastic bottles standing in a transparent rectangular glass dish that was factory labelled Pyrex.  Each of these bottles contained a liquid substance.  The glass dish was examined and a fingerprint impression identical to that of the offender was located on the base of the dish.  The liquids in the bottles were 917.5 grams of methylamphetamine as to 68% purity, 972 grams of methylamphetamine as to 65% purity, 548.2 grams of methylamphetamine as to 50% purity, 922.8 grams of methylamphetamine as to 70.5% purity, and 920.2 grams of methylamphetamine as to 74% purity.  The total weight of methylamphetamine located in those bottles was 4,333.7 grams. 

20. Also within the fish tank police located a white coloured translucent plastic container which had a white coloured lid wrapped with black coloured tape.  GTR was on the outside of it.  Inside the container was a clear yellow liquid that filled approximately 45% of the total container volume.  This liquid when analysed was 2,047 grams of gamma butyrolactone which, of course, relates to one of the principal offences being the supply not less than the commercial quantity of that substance.

21. In total the offender had in his possession for the purposes of supply 3,322.59 grams of cocaine, 7,418.36 grams of methylamphetamine, 19.16 grams of 3,4-methylenedioxy-methylmphetamine, 2,047 grams of gamma butyrolactone.  He was arrested and taken to Bankstown Police Station and declined to participate in a record of interview with the police.

Objective seriousness

22. I turn then to my assessment of the objective seriousness of the offences.  In sentencing for drug supply the quantity of drug involved is a relevant but not determinative factor on sentence.  Here the quantities of drug involved in the offences are significant.  The minimum amount of cocaine that constitutes a large commercial quantity is 1 kilogram.  The amount the subject of the supply large commercial quantity of cocaine offence here is more than three times that amount.  The minimum amount that constitutes the large commercial quantity of methylamphetamine is 500 grams.  The amount of methylamphetamine the subject of the supply large commercial quantity of methylamphetamine offence is over 14 times the minimum amount that constitutes a large commercial quantity.  It is, of course, accepted that there is no upper limit of drugs when one is dealing with a large commercial quantity and frequently this Court sees amounts far in excess of the amounts the subject of these charges.

23. The commercial quantity of gamma butyrolactone under the Drug Misuse and Trafficking Act is 1 kilogram and the large commercial quantity is 4 kilograms.  The amount the subject of the relevant charge here is 2,047 grams, so halfway between the commercial and the large commercial quantity.  The commercial quantity of 3,4-methylenedioxy-methylmphetamine under the Drug Misuse and Trafficking Act is 125 grams.  The amount the subject of the supply charge concerning that drug is many times below the commercial quantity.

24. A more significant factor when sentencing for drug supply offences is the role that an offender has played in an offence.  Here, all of the drugs were found in the offender’s bedroom in the house where he was living with his parents.  Of some significance is the fact that the agreed facts make no reference to any records being found which might be consistent with the offender himself actually selling the drugs.  In that regard, the agreed facts contain no reference to the offender having a mobile phone containing any messaging consistent with the offender being the person who was actually selling drugs to others from those premises. 

25. I also note that the agreed facts do not refer to the offender being in possession of a Blackberry device, something which experience suggests is frequently used by those actively involved in the sale of prohibited drugs believing that law enforcement cannot access such devices in terms of messages that may have occurred when using such a device.  No scales or packaging generally required for wholesale or retail supply was found at the offender’s premises. 

26. I note though, that $10,350 in cash was found in a locked drawer in the offender’s bedroom, in a drawer in which drugs were also found.  While that cash is the subject of a specific offence which is on a Form 1, which does not involve a finding that it was actually the proceeds of crime, I consider that the finding of the cash is relevant to a consideration of the role of the offender in the sense of his motivation for involving himself in the commission of the offences.

27. There is nothing in the agreed facts to contradict the submission that the offender’s role was to store the drugs at his family home at the request of other persons.  In the untested account he gave to the psychiatrist, Dr Nielsen, the offender is recorded as saying that he had been asked by others to hold onto the drugs and that he was trusted by those persons given the quantities involved and that he had stored the drugs for a month prior to his arrest.  It is established on the balance of probabilities that at the relevant time the offender was someone suffering from a drug addiction which is, of course, not a mitigating factor but is relevant to have regard to in considering what his likely role was in this criminal enterprise.

28. It is also important to sentence an offender for what he actually did rather than to ascribe a particular label describing his role in the offences.  I am satisfied beyond reasonable doubt that the offender stored the significant quantities of prohibited drugs the subject of the charges for approximately a month at the request of another person or persons; that he had knowledge that what he was storing were very considerable quantities of different types of drugs and he did so because he was trusted by others involved in the supply of the drugs and that he received payment by way of drugs and/or money which he principally used to purchase drugs to feed his own addiction.

29. I note the Crown did not submit there were any aggravating objective factors under s 21A of the Crimes (Sentencing Procedure) Act present in the offending.

30. Having regard to the offender’s role and the quantities of drugs involved, my assessment of the objective seriousness of each of the offences is as follows.  The supply large commercial quantity of cocaine offence; below the midrange level of objective seriousness but not at the bottom of the range.  The supply large commercial quantity of methylamphetamine offence; below the midrange level of objective seriousness but not at the bottom of the range.  The supply of the commercial quantity of gamma butyrolactone offence; a little below the midrange of objective seriousness.  The supply of 19.16 grams of 3,4-methylenedioxy-methylmphetamine; towards the lower end of objective seriousness.

22. Each of the possess prohibited drug offences on the s 166 certificate relate to the nominated drugs in liquid form. The amounts in terms of grams of the relevant drug the subject of each charge are quite significant. However, in the Crown’s submissions, the Crown accepted that the liquids contained other substances and the drugs were not in the offender’s possession for the purpose of supply. The Crown submitted, however, that the amounts placed the offences towards the “high end of offences of this nature.” The purities of the drugs concerned in the charges on the s 166 certificate were low and the evidence establishes the offender was a drug addict. Given the Crown accepts that the possession of those drugs was not for the purposes of supply, I do not consider that the offences are at the high end of objective seriousness.

The offender’s subjective case

32. Turning then to the offender’s subjective case.  The offender’s date of birth is 5 June 1986 so he is currently 34 years of age and was 33 as at the date of the offences.  The offender has no prior criminal history and as such is entitled to some leniency in his sentencing.  The evidence before me is that the offender is of prior good character.  The Court of Criminal Appeal has ruled, in the context of drug trafficking, that fact is to be given less weight, as often persons are recruited to a criminal enterprise like drug trafficking precisely because they are persons of good character and are less likely to attract suspicion.  I have had regard to those principles in determining what weight I should give to the fact that the offender is a person of good character.

33. Documentary material

34. In terms of documentary material, I have before me a Sentencing Assessment Report dated 27 April 2021; a medical record from the offender’s GP including a mental health care plan dated 31 March 2021; a report from Dr Olav Nielssen, psychiatrist; a character reference from the offender’s ex-wife dated 18 March 2021; and a further character reference from the offender’s elder brother dated 31 March 2021. The offender did not give evidence on sentence and I have had regard to that fact in determining what weight I should give to the content of the subjective material, in particular, in so far as the offender has provided to third parties an untested account of his involvement in the offences.

Family background

35. Turning to his family background, according to the psychiatric report the offender was born in Indonesia where his parents were then living as refugees with his two older siblings.  The offender’s parents were from Saigon and were Catholics and he attended church every Sunday while he was growing up.  The offender said that his father was a mechanic with his own workshop and his mother would sew piece work at home when he was young.  According to the Sentencing Assessment Report, the offender enjoys a close relationship with his parents with whom he resided in the Yagoona area in New South Wales prior to the offending.  The offender notes, however, that due to the impact of his incarceration, associated stresses, and offending behaviours he has had limited contact with his parents since then.  The offender told Dr Nielssen that he understands his early physical and social development was normal.  He did not report any learning or serious conduct problems at school. 

36. The offender is one of four children. He has two older sisters, and a younger sister who sadly died in a car accident in 2005 when she was sixteen years of age. The offender told Dr Nielssen that he was very close to that sister, and was severely affected by her death. The offender stated that he visited her grave in Lidcombe as often as four times a week.

37. The offender had a marriage which ended in 2016, after 11 years. The offender has no children. The evidence before me is that the relationship dissolved, in part, as his wife at the time fell pregnant and terminated the pregnancy as she did not want a family. The offender was deeply upset by this. The offender had a second relationship which ended soon after his arrest.

38. The offender told Dr Nielssen that his main hobbies were caring for his fish, collecting models of classic cars “and using drugs I suppose”.

Education and employment history

39. Turning to the offender’s education and employment history, the evidence before me is that the offender grew up in the Bankstown area and attended St Felix’s School for primary school, then de la Salle College at Bankstown, where he completed the Higher School Certificate with a low score.

40. Since leaving school the offender has reportedly completed a TAFE course in hospitality, then work experience at a café and with a youth outreach service, with a plan to open his own café business. The offender worked for his father for several years prior to his arrest. According to the offender’s sister, he also had intermittent jobs until his divorce in 2016, including installing surveillance cameras for O’Rian Integration, working as a courier for Allied express, and as a warehouse packer for Coca Cola.

41. After his divorce, the offender’s sister noted that the offender worked as an Uber driver for a short time, and then for a friend at Beaumont Tiles in Blacktown for a few months. His sister noted that his depression made it difficult for him to keep up his employment. I will discuss the offender’s mental health a little later in these remarks.

42. At the time of the offender’s arrest, the offender told Dr Nielssen that he was working for a panel beater, where his jobs included ordering and collecting parts, helping rub down cars and “anything else that needed doing”. The offender told Dr Nielssen that he had been employed since entering custody.  He also told Dr Nielssen he hoped to eventually train as an electrician in order to start work with his former brother-in-law.

Substance use

43. The material before me establishes that the offender has a long history of substance use this is closely related to the current offences. The offender told Dr Nielssen, “Because I was using drugs for a certain amount of time… the guys who I was getting it off asked me to hold in to it for them.” The offender told the author of the Sentencing Assessment Report that he committed the offences to support his drug habit.

44. The offender told the author of the psychiatric report that he smoked a small amount of cannabis for a period of time around the age of 15 and 16. He further reported the use of MDMA from the time of his divorce, to “get away from the shattered feeling”. The offender said that he later switched to the use of methamphetamine which became his drug of choice, and that his addiction increased in the four years since his divorce. The offender stated to Dr Nielssen “in the end I was smoking ice from when I got up in the morning… I would smoke through the day… 1.5 gram a day roughly…” The offender said that he felt severely depressed whenever he stopped using.

Psychological/psychiatric history

45. Turning then to the offender’s psychological history. Whilst there is no evidence of mental illness in the family, the offender and his whole family were very affected by the death of his younger sister in a car accident in 2005.

46. The evidence before me is that the offender was, and continues to be, very emotionally affected by his divorce. The offender told Dr Nielssen that he had suicidal thoughts after his divorce. He told the doctor, “I was pretty broken…I don’t think I have recovered... I have nothing to live for…” As I mentioned earlier, the key motivation behind substance abuse seems to be the breakdown of his marriage.

47. The offender has only had brief contact with the mental health care system. In 2016, the offender was diagnosed with depression by his general practitioner, and referred to a psychologist under a Mental Health Care Plan. Dr Nielssen noted that the records of Campsie Medical and Dental Centre in August 2016 recorded that the offender was depressed and had “relational trauma on a background of childhood trauma” and there had been “increased substance use and gambling.” 

48. The offender told Dr Nielssen that he was interviewed by a psychiatric nurse at the time of his reception to prison, but was not referred for further care and had not had any kind of mental health care during the year during the year he had spent in prison, despite feeling very depressed. The offender told Dr Nielssen that he believed he was still depressed, and said “I feel useless… lost and confused”. The offender said he often woke in the middle of the night unable to get back to sleep. The offender said he felt anxious for no clear reason, and worried a lot.

49. Dr Nielssen, in his psychiatric assessment of the offender, offered a formal diagnosis of substance use disorder. This was made on the basis of the history of cannabis use as a teenager, episodes of hazardous alcohol intake, his reported use of MDMA and the regular use of methamphetamine. Dr Nielssen noted that the offender’s substance use contributed to him becoming severely depressed, addicted to methamphetamine, and induced transient paranoia. This disorder is described as being in remission on the basis of the offender’s detention in a comparatively drug free setting, and his reported intention not to return to drug use.

50. Dr Nielssen offered a further diagnosis of a depressive illness, based on the offender’s account of symptoms amounting to the syndrome of depression, the diagnosis made by the offender’s general practitioner and psychologist in 2016, the observations made by his sister to Dr Nielssen and his presentation during the assessment. Dr Nielssen concluded that the triggers of the offender’s illness appear to be the death of his younger sister, to whom he was very attached, and the breakdown of his marriage.

Response to supervision

51. The offender has never previously been supervised by Community Corrections, however the evidence before me is that the offender had been employed from the time he came to prison, starting with clerical and support services in the reception area during his six months at Parklea, and in the textile workshop at Kempsey sewing prison greens. I note in his custodial history it is reported that he has had no reports of misconduct and has had good work reports while in custody.

Attitude to the offence

52. Turning to the offender’s attitude to the offending. The offender has expressed somewhat limited insight into the damaging consequences of drugs on the wider community, although this has reportedly improved since entering custody. According to the Sentencing Assessment Report, the offender did not easily identify, and struggled to express, the impact his offending would have on the community, except to say the community would be “disappointed”. According to the same report, since entering custody the offender commented on the number of inmates in custody as a result of illicit drugs, noting the negative impact this would have on the greater community.

53. The offender’s remorse is more confined to the impact upon himself and his family. The offender told the author of the Sentencing Assessment Report that his offending behaviour was his “biggest regret, not worth it and selfish” due to the loss of time with his family and his freedom.

The future and risk of re-offending

54. In terms of the future and risk of re-offending, the author of the Sentencing Assessment Report assessed the offender has having a low to medium risk of re-offending.

55. Nielssen opines that the offender’s prognosis is directly linked to the future course of his substance use disorder.  Unsurprisingly, Dr Nielssen considered that if the offender was able to remain drug free he would have good prospects for rehabilitation.  The offender is recorded in the Sentencing Assessment Report as willing to undertake interventions in relation to his drug use such as by way of counselling and attending programs.

Imposition of sentence

56. The offender entered pleas of guilty to the offences in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his pleas. 

57. While the evidence before me suggests that the offender has little by way of insight into the terrible effects prohibited drugs are having in our community, his early plea of guilty and his behaviour in custody suggest that he does have some genuine remorse for his offending. 

58. I consider the offender has good prospects for rehabilitation given his lack of a criminal record, his family support, his low to medium risk of reoffending as assessed by Community Corrections, and the progress he has made in custody in relation to his rehabilitation.  Obviously much will depend upon his ability to leave his drug past behind him. 

59. I consider the offender’s rehabilitation has commenced while in custody however it is not yet complete.  Clearly he will need assistance with his drug issues upon his ultimate release from custody.  I note the offender is a first-time offender and I am sentencing him during the COVID-19 pandemic, although fortunately the disease has not entered the prison population in New South Wales at this point in time.  He has been in custody since 16 April 2020 and for almost the rest of 2020 from that date there were no in-person visits in gaols in New South Wales.  For all of those reasons I will make a finding of special circumstances when fixing the non-parole period.

60. As I noted earlier, the offender has been in custody since his arrest on 16 April 2020 and I will backdate his sentence to commence from that date. 

61. While there are a number of offences that I am to sentence the offender for, all of the offences occurred at the same time and essentially involved the offender operating in the same way, that is, as someone prepared to store large quantities of prohibited drugs for others in exchange for drugs or money to fund his drug addiction.  I will utilise the aggregate sentencing provisions.  If I had not done so there would have been a somewhat limited degree of accumulation of sentences noting the number of drugs that are involved. 

62. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim, in this instance the community, and rehabilitation of the offender.

63. Prohibited drugs are causing much damage in our community, destroying lives, families and the very fabric of our society.  Those who involve themselves in the supply of large commercial or commercial quantities of such drugs must expect to receive significant sentences in order to deter the offender, but also to deter others in our community who might be tempted to involve themselves in such offending. 

64. The maximum penalties and, where applicable, the standard non-parole periods, have been taken into account as legislative guideposts. 

65. I have considered the cases to which counsel have referred me to.  No two cases are ever the same.  I do not consider that those cases establish a range of sentence for this type of offending.  It needs to be remembered that sentencing remains an instinctive synthesis in accordance with defined legal principle.  It will be seen that I have departed from the standard non-parole periods due to my assessment of the objective seriousness of the offences to which they relate and my finding of special circumstances.

66. I will firstly record the indicative sentences and where there is an applicable standard non-parole period, an indicative non-parole period.  In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier. 

67. The sentences Mr Chu will hear me first announce are what are called indicative sentences.  He will then hear me announce an aggregate sentence which is the sentence and the non-parole period that he will serve.  It is not arrived at by simply adding up all of the indicative sentences.

68. When announcing the aggregate sentence, I will tell him the date it starts from, the date it ends and the date when he is first eligible for parole.

69. On the supply large commercial quantity of cocaine offence and having regard to the offence on the Form 1, I record an indicative sentence of six years’ imprisonment with an indicative non-parole period of four years.

70. On the supply large commercial quantity of methylamphetamine offence, having regard to the offence on the relevant Form 1, I record an indicative sentence of six years’ imprisonment with an indicative non-parole period of four years.

71. On the supply commercial quantity of gamma butyrolactone offence I record an indicative sentence of four years’ imprisonment with an indicative non-parole period of two years and eight months.

72. On the supply 19.6 grams of 3,4-methylenedioxy-methylmphetamine and having regard to the offence on the Form 1, I record an indicative sentence of two years’ imprisonment.

73. In relation to each offence on the s 166 certificate I record the following indicative sentences. Charge sequence 41, two months imprisonment: Charge sequence 42, two months imprisonment; Charge sequence 43, three months imprisonment; Charge sequence 44, six months imprisonment; Charge sequence 45, three months imprisonment; Charge sequence 46, four months imprisonment; Charge sequence 47, two months imprisonment; Charge sequence 48, one month imprisonment.

74. I impose an aggregate sentence of nine years’ imprisonment and an aggregate non-parole period of six years’ imprisonment.  The sentence commences on 16 April 2020 and expires on 15 April 2029.  The non-parole period expires on 15 April 2026.  The earliest date you are eligible to be released to parole, Mr Chu, is the date of the expiry of the non-parole period which is 15 April 2026.  Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

Orders

1. The offender is convicted of the offences to which he pleaded guilty.

2. Impose an aggregate sentence of 9 years imprisonment and an aggregate non-parole period of 6 years. The sentence commences on 16 April 2020 and expires on 15 April 2029. The non-parole period expires on 15 April 2026.

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Amendments

27 July 2021 - Amended counsel's name

Decision last updated: 27 July 2021