R v Chung

[2023] NSWDC 604

District Court

New South Wales

Medium Neutral Citation:

R v Chung [2023] NSWDC 604

Hearing dates:

2 November 2023,
23 November 2023

Decision date:

24 November 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

25% discount for utility of the plea – sentence rounded down by 21 days – no finding of special circumstances.

Sentenced to a total term of imprisonment of 6 years and 9 months comprising a NPP of 5 years to commence on 23 February 2023 to expire on 22 February 2028 and a balance of term of 1 year and 9 months to commence on 23 February 2028 and to expire on 22 November 2029.

Eligible for release to parole on 22 February 2028.

Catchwords:

CRIMINAL - sentence - supply a prohibited drug, more than a large commercial quantity - a significant quantity of methylamphetamine – objective seriousness - findings in re remorse and contrition – “a plea of guilty in itself does not necessarily indicate remorse” - “hierarchy” – role of offender – subjective matters

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Cases Cited:

McLean v R [2020] NSWCCA 344

Category:

Sentence

Parties:

Rex
Chung, Wai Sze

Representation:

Counsel:
Defence: Mr K Averre
Solicitors:
Crown: Ms G Alexander - ODPP
Defence: Ms E Hoile - Kingston Fox Lawyers

File Number(s):

2022/00276584

JUDGMENT

1. Ms Wai Sze Chung appears for sentence in respect of a single offence, being supply a prohibited drug, more than a large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is a term of imprisonment of life, and there is a relevant standard non-parole period of 15 years.

2. The offender was committed for sentence on 31 May 2023 in the Sydney Downing Centre Local Court and is entitled accordingly to a 25% discount for the utility of the plea alone. The date of the offence was 9 June 2022. She was arrested on 15 September 2022 and was in custody until granted bail on 25 January 2023. Her bail was revoked on 6 July 2023, and she has been in custody since that date only in respect of this offence.

3. The facts are agreed as follows:

1. On 11 March 2022, New South Wales Police Force was granted a Controlled Operations Authority, authorising undercover officers to engage in negotiations or agreements related to the supply of prohibited drugs.

2. On 7 June 2022, UCO 1 corresponded with an unknown person via WhatsApp messages and arranged to purchase 1 kilogram of methylamphetamine for $150,000 on 9 June 2022. The unknown person requested that UCO 1 arrange to provide the cash in one location first and then the methylamphetamine would be supplied at a second location. UCO 1 agreed to this arrangement and confirmed he would arrange for one person to deliver the cash and another person to collect the methylamphetamine. The unknown person confirmed via WhatsApp messages that the location for the money exchange would be in Mandemar Avenue, Homebush West, and the location for the exchange of the prohibited drug would be in Cooper Avenue, Moorebank.

9 June 2022 - Offence Date

3. At 2.30pm on 9 June 2022, the unknown person sent UCO 1 a message saying the person collecting the money will be wearing “orange work clothes, workers’ shoes” and “no driving”. The unknown person confirmed that the person delivering the prohibited drugs would be an “Asian woman.”

4. UCO 1 was deployed to Mandemar Avenue to deliver the cash. At 3.30pm an unknown Asian male approached UCO 1’s vehicle and entered the front passenger seat. The unknown Asian male handed UCO 1 two Chinese Yuan banknotes with individual serial numbers. UCO 1 photographed the two banknotes and sent the photos to UCO 2. UCO 1 provided the unknown male with $150,000 cash inside a white and blue bag. The unknown male counted the cash and departed UCO 1’s vehicle. UCO 1 left the location and attended a debriefing.

Sequence 1

5. At around 3.30pm on 9 June 2022, UCO 2 attended Cooper Avenue, Moorebank, to collect the methylamphetamine. UCO 2 parked his vehicle on the street of Cooper Avenue. At 3.39pm the offender was observed driving alone to the location in a grey Honda Jazz. The offender parked her vehicle directly behind UCO 2’s vehicle. The offender was observed exiting her vehicle wearing a white beanie, white jumper, blue jeans and black facemask. UCO 2 observed the offender walk to his car carrying a pink plastic bag with the word “Fancy Life” written on the front. The offender entered the front passenger seat of UCO 2’s car and placed the pink bag in the front passenger footwell of the car. The offender said to UCO 2 “that’s yours”. No other conversation took place between the offender and UCO 2.

6. UCO 2 showed the offender the agreed token of Chinese currency which had been sent to him by UCO 1 earlier that afternoon. The offender took a photograph of the token and sent the photograph to an unknown person via WhatsApp. Shortly afterwards, the offender left UCO 2’s car, returned to her car and drove to her apartment building in Atkinson Street, Liverpool. UCO 2 looked inside the pink bag and saw that it contained a large plastic resealable bag containing white crystal. UCO 2 then attended a debriefing with UCO 1 and other police officers.

7. The white crystal substance provided to UCO 2 by the offender on 9 June 2022 was submitted for forensic analysis and found to contain 998.3 grams of methylamphetamine with a purity of 80%.

8. The offender is criminally responsible for the offence on the basis that she was aware that there was a significant chance that the substance she supplied to the UCO was a prohibited drug.

Police Investigation and Arrest

9. Police obtained CCTV footage from the lift at the offender’s apartment building in Atkinson Street, Liverpool, on the date of the offence. The CCTV footage shows the offender in the lift for approximately two minutes from 3.28pm to 3.30pm on 9 June 2022 holding the pink Fancy Life plastic bag containing the methylamphetamine and wearing the same outfit that she was wearing at the time of the offence, namely a white beanie and a white hooded jumper.

10. Police executed the search warrant at the offender’s apartment around 10am on 15 September 2022, during which they located the white beanie the offender was wearing during the offence. The offender was not present during execution of the search warrant.

11. At 11.30am on 15 September 2022, the offender was arrested at her workplace. A Mandarin-speaking police officer was present during the arrest and cautioned the offender. She was conveyed to Fairfield Police Station where a Mandarin interpreter was arranged to assist in the charge interview and forensic procedure process. The offender was offered the opportunity to participate in an electronically recorded interview which she accepted.

12. The offender participated in an ERISP at around 3.20pm, during which time she confirmed her address in Atkinson Street, Liverpool, and stated that she lived there alone. The offender declined to answer any questions about the alleged offence as was her right.

4. The threshold for a commercial quantity of methylamphetamine is 500 grams. The offender had 998.3 grams, which is 1.7 grams less than twice the threshold quantity. There is no upper limit to a commercial quantity. Approximately one kilo of methylamphetamine is, however, a substantial or significant quantity. On the facts in this matter, its wholesale price was $150,000 and it would presumably have a more significant value if broken down into smaller supplies. The purity of the drug was analysed as 80% which is a high level of purity for methylamphetamine.

5. The role of the offender, the weight and purity of the drug and its value need to be considered in relation to the objective seriousness of the offence. The legislation covering large commercial quantities distinguishes between drugs only on the basis of weight. One kilo of 80% pure methylamphetamine, being twice the commercial threshold is, as I have said, a significant quantity, and objectively this is a serious offence.

6. In terms of the facts before the Court, there were two persons concerned, or perhaps three in the offence: one person who collected the money at location A, and this offender, who delivered the prohibited drug at the second location. While the facts state that she is criminally responsible for the offence on the basis that she was aware there was a significant chance that the substance she supplied to the UCO is a prohibited drug, it is clear from the facts that she had possession of the drug when she left her apartment and was solely responsible for transmitting it to the pickup location and handing it over. She was recorded carrying the package down in the lift at her apartment building. She must in those circumstances have had a fair idea as to the quantity because she was then carrying it in the pink bag.

7. She was also party to an arrangement whereby the money having been paid over and Chinese currency provided for the purpose of an identity check or security code, photographs taken by UCO 1 had been transmitted either directly or indirectly to her and she was aware when delivering the methylamphetamine to UCO 2 that she was to engage in a not unsophisticated process of checking the code.

8. That she was aware that there was a significant chance that the substance she supplied was a prohibited drug should be interpreted as being a very highly significant chance, in the circumstances of what she did as part of this arrangement. She may not have known what the actual drug was, but she was being asked to perform a task, if asked by anyone else to do so, in circumstances of some sophistication.

9. In my view the offender’s role in supplying a prohibited drug of this quantity in these circumstances indicates that the offending was objectively serious, and as it has become recognised that methylamphetamine is a drug that has become available at all places in New South Wales and at all levels of society in New South Wales, and its adverse effects on those who use it and collateral adverse effects on others in the community, it is a drug which is very destructive of social order in New South Wales.

10. As to the subjective matters before me, there is a criminal history which indicates that she has no history of criminal offending in New South Wales and there is no suggestion that she has a criminal history anywhere else. In those circumstances she can be regarded as a first offender. As to subjective matters, there is a Sentencing Assessment Report under the hand of Jodie McMann, dated 1 November 2023, a psychological report from Kris North, dated 25 October 2023, an affidavit of Ms Hoile, the offender’s solicitor, dated 27 October 2023, a character reference from Evangelos Gregoriou, the offender’s boyfriend or partner, dated 26 October 2023, and a further character reference from Keti Gregoriou, the mother of the offender’s partner, dated 25 October 2023. Subjective matters are drawn from that material.

11. She is now 28 years of age. She was born in Hong Kong as the youngest of two children to her parents who were in a stable marriage and who continue to reside in Hong Kong. Her sibling is an older brother who resides in Australia, and while in custody she has maintained regular contact with her parents and brother who are supportive of her.

12. Although said to have been subjected to harsh physical discipline as a child, she identified that as being normal within her culture. She has shared a close relationship with her parents since that time. She struggled academically and was a below average student, repeating one year in High School before leaving at 17 years of age to work. She also worked part time while at High School.

13. She travelled to Australia in 2014 at the age of 19 on a working visa and worked in hospitality and retail before obtaining a student visa and studying English, marketing and accounting as well as cooking. She was in part time employment while engaging in study and worked at a marble factory for approximately four years prior to entering custody.

14. She has been in a relationship with her boyfriend for approximately three years and when released on bail she resided with him and his parents and the references from each of them indicate that they are supportive and intend to continue to be supportive of her.

15. She has said to have never been formally assessed or diagnosed with any mental health issues. When first she went into custody on arrest, she experienced mild symptoms of depression and anxiety, but since returning to custody, her current anxiety is generated by the fact that her sentence has been outstanding, and there is no indication of any serious mental health issues. She denies any history of self-harming behaviours or suicidal ideation.

16. While in custody, she is said not to be a user of prohibited drugs, and there is no indication in the material before me that she has an addiction to either alcohol or prohibited drugs.

17. While on remand, she has completed a short course in computer skills as well as participating in a remand addictions program. It is encouraging that she has sought to obtain skills which might assist her later in life, although in the absence of having an addiction to either alcohol and/or drugs I find it difficult to see how participation by her in the remand addictions program will have been of any particular utility. Hopefully, it will assist her not to later develop an addiction to alcohol or prohibited drugs.

18. She was not assessed as meeting the criteria for any mental health or substance use issues, and according to the psychologist, she presented with nil criminogenic risk factors, and there were no recommendations for treatment as a result of that assessment. I note the solicitor’s affidavit indicates that while in custody she has been employed assembling and sorting Qantas in-flight earphones and had some trouble when initially entering custody in being able to contact her parents in Hong Kong because of the cost of the calls.

19. Her boyfriend is said to have visited her each weekend and her brother has visited her on at least one occasion. She is able to communicate with her family in Hong Kong about twice a week utilising an iPad.

20. Prior to her arrest and while on bail she was employed at LMG Stone Proprietary Limited, a firm which supplies stone kitchen benchtops. There is a letter before the Court from her employer, Mr Gwo, which simply refers to her as being a good girl and a good worker who he would be happy to support and give fulltime employment to in the future.

21. The letter from her partner and his mother simply indicate that they hold her in good regard and are prepared to be supportive of her when released. As to anything contained in either of their character references as to why she participated in this matter, I do not intend to take it into account on the basis that hearsay statements through third parties, whether they be psychologists, boyfriends, or mothers of boyfriends, are of little weight as they cannot be tested.

22. In relation to this offender in particular, I note that when arrested, other than confirming her address she was not prepared to provide any information in relation to this matter, not that she was required to, but in addition to that she has not given evidence on sentence, so any statement by her is incapable of being tested by cross-examination.

23. The psychologist refers to her as having accepted responsibility for and expressed regret for her behaviour. She has of course accepted responsibility by pleading guilty, but a plea of guilty in itself does not necessarily indicate remorse, and regret is not remorse. Regret really is frequently only a personal acknowledgment of having been caught out and having to suffer the consequences.

24. The offender did not give evidence on sentence and there is nothing in the material from her employer, her partner or her partner’s mother which indicates that she has ever expressed remorse to them. A plea of guilty was entered in circumstances where there was a very strong Crown case against her which would have been available from the evidence of UCO 2 and the CCTV recording of her in the lift as she left her residence in order to make the delivery.

25. I am unable in the circumstances to find that the plea of guilty itself is capable of reflecting remorse rather than simply being the acknowledgment of the strength of the Crown case.

26. I would have taken a different view if, in the circumstances of this matter, the offender had done one of a number of things: that is, actually confessed when first spoken to, rather than simply acknowledging where she lived, had she provided information as to anyone else that was involved in this matter, if there was anyone else other than the person who collected the money, or indeed who that person was. As I understand it, from what I have been informed of during the sentencing hearing, the person who collected the $150,000 has not been arrested, and the $150,000 has not been recovered.

27. Because of the way communications operated, there may have been a third person involved in terms of the original WhatsApp messages, but there is no indication that any person has been arrested or charged with any offence other than this offender. The offence is one of supply a prohibited drug. On the evidence before the Court, there are only two persons involved, that is, the person who collected the $150,000, and this offender who delivered the prohibited drug. As referred to previously there is potentially a third offender who made the arrangements with UCO 1, if not one of the two persons known to be involved.

28. Mr Averre on behalf of the offender has submitted more than once during the course of the sentence hearing that the offender should be regarded as being low in the hierarchy, to which I note I have responded on each occasion, “What hierarchy?” There is no evidence of a hierarchy beyond the two who were involved with UCO 1 and UCO 2.

29. This matter has some similarity with the constant stream of cases that come before the Court in relation to the enhanced cultivation of marijuana by way of hydroponic cropping. The persons who are most frequently detected are not those who have financed or set up the operation or supplied the necessarily expensive equipment to grow large crops but those who have been hired for the purpose of cultivating the crop, that is, watering it, fertilising it, matters of that nature.

30. Invariably they are detected by surveillance of the premises and recorded as being there on a number of occasions. They are frequently from the Vietnamese community, have no criminal history, or at least any relevant criminal history, come from very poor economic circumstances, and there is usually little evidence as to any reward they are expecting other than what they might assert, which is normally insignificant in relation to the crops being cultivated.

31. That is designed to be a cut-off point where they will get the benefit of their lack of criminal history on sentence. It is probable that those who have families have been assured that they will be looked after if they serve a period of imprisonment, and that their legal fees in relation to pleading guilty, which most inevitably do when caught red-handed, will be looked after by the principals, providing that they do not provide any assistance to the authorities.

32. Those matters may have some similarity with this matter, but in terms of an offence of supply, and in this case, there is no evidence of any higher level in the hierarchy. This offender was the one who supplied the one kilogram of methylamphetamine in circumstances where common sense can inform one that she would not have been trusted to do so if there was a hierarchy unless anyone above her in the hierarchy was entirely confident that she would take the course that she has taken, that is, to reveal no information about anyone else that may have been concerned.

33. She has left herself in the position where she is one of two significant offenders, where neither of them can point to any more significant hierarchy on the evidence before the Court in respect of what I have referred to as an objectively very serious offence of supply prohibited drug.

4. In this matter it appears, although not the offender’s fault, but it appears that the New South Wales authorities have lost $150,000 of taxpayers’ money in order to acquire almost one kilo of methylamphetamine, which has no value to the authorities and would of necessity simply be destroyed in due course.

5. While I appreciate that the New South Wales Police Force endeavours to mount programs designed to assist in uncovering criminal behaviour - and criminal behaviour of a serious nature - I am stunned to learn that the person who collected the $150,000 was apparently unidentified and has not been arrested or charged. Not being charged sometimes occurs in circumstances where the authorities seek to have the person continue to operate so that they can identify others involved, but this was an offence in June 2022. One would have expected the operation to have concluded before now.

6. I have taken all those matters into account. I have also taken into account what is contained in the offender’s solicitor’s affidavit as to the impact of COVID on the offender while she has been in custody. That is a relevant matter to take into account in terms of the sentence to be imposed. It has of course been the case for all prisoners that COVID-19 has made serving a sentence, whether it be after conviction or on remand, more difficult or onerous than it would normally be, and certainly in periods that the offender has been in custody solely in relation to this matter, she has been adversely impacted by that factor.

7. I also note that there is a large question mark over the future in relation to custody and COVID. There is currently, as I understand it from the press, a resurgence in COVID in the community and I would anticipate that it is entirely likely that that is going to cause ongoing problems for persons in custody in terms of lockdowns, access to courses and access to community and friends. I take that into account. However, offending of this nature is serious and there is a need for any sentence to be imposed to reflect both general and specific deterrence.

8. There are no factors in this matter which would diminish the need for the sentence to reflect both specific and general deterrence. Despite what I have just said, considering the offender’s lack of past criminal offending, the need for the sentence to reflect specific deterrence is somewhat less important than it would otherwise be, but the need for the sentence to reflect general deterrence is high because offences of this nature, where sophisticated plans are put in place, are difficult to detect and to obtain evidence of despite the best efforts of the New South Wales Police Force.

9. Mr Averre, on behalf of the offender, submitted that this matter fell at the very bottom of the range of objective seriousness for the offence. A submission with which I disagree strongly.

10. As to the risk of reoffending, I note the report of Jodie McMann indicates that she was assessed as a low risk of reoffending, which appears to me to be a reasonably accurate assessment in the circumstances of her past history. I should note that in relation to what is contained in the Sentence Assessment Report by way of hearsay statements from the offender as to what she did, and why, I am not prepared to accept those untested statements and have not done so as being untested and self-serving, I also note that In McLean v R [2020] NSWCCA 344 at 50 it was said:

“...it should be noted that the absence of factors relevant to the offender’s participation that would otherwise elevate the assessment of objective seriousness should not render the offence less serious than it in fact is.”

41. Taking all of those matters into account, including that the maximum penalty provided is a term of imprisonment for life, being a term of natural life, and the guidepost of a standard non-parole period of 15 years, I have determined that the sentence would be of nine years’ imprisonment to which I have applied a 25% discount for the plea, giving a term of sentence of six years, nine months, and I would set a non-parole period, having not found special circumstances, of five years. I have reduced the non-parole period only by a number of days to round it down to five years.

42. So, the term of sentence is six years, nine months, commencing on 23 February 2023 to take into account the period of past custody. The balance of term is one year, nine months. The six years, nine months term of imprisonment will expire on 22 November 2029. The offender will be first eligible for parole on 22 February 2028.

43. What I haven’t said, Mr Crown, is that one of the purposes of special circumstances is to allow for rehabilitation and on what is before me the accused does not have a drug or alcohol problem and there is no need for any extended period of rehabilitation, nor in that sense is she a recidivist criminal offender. It’s perhaps a shame that she didn’t take a different course of action.

SPEAKER: That’s the case, thank you, your Honour.

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Decision last updated: 20 February 2024