R v DH

[2023] NSWDC 312

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DH [2023] NSWDC 312

Hearing dates:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

1. The offender is convicted of three charges to which the offender pleaded guilty;

2. I sentence the offender to full-time imprisonment for a period of three years and four months, to commence on 5 February 2023 and expire on 4 June 2026;

3. I set a single non-parole period of 20 months, to expire on 4 October 2024.

Catchwords:

SENTENCING — Penalties — Imprisonment – Plea of guilty – Parity – First time in custody – Good character – Mental condition

Legislation Cited:

Criminal Code Act 1995 (Cth)

Category:

Principal judgment

Parties:

Rex (Crown)
DH (Offender)

Representation:

Counsel:
Offender: Detheridge

Solicitors:
Crown: Lewis

File Number(s):

2021/00101536

Publication restriction:

Non-publication order re identity of offender

JUDGMENT

INTRODUCTION

1. The offender appears today to be sentenced in respect of three offences. He was committed for sentence from the Parramatta Local Court on 18 March 2022, following the entering of guilty pleas.

2. I have previously sentenced another offender, MW, in relation to one of the offences, namely sequence 6. In a general sense the question of parity arises as between that offender and this offender in respect of that one matter.

3. Sequence 6 is that on 12 April 2021 he did attempt to possess a commercial quantity of a borderline controlled drug reasonably suspected of having been unlawfully imported, namely 2.4 kilograms of pure methamphetamine. This is an offence pursuant to s 307.8(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty of life imprisonment and/or 7,500 penalty units.

4. Sequence 7 is that on the same day he did deal with money or other property reasonably suspected of being the proceeds of crime, being less than $100,000, namely $9,000. This is an offence under s 400.9(1)(a) of the Criminal Code and carries a maximum penalty of two years imprisonment and/or a fine of 120 penalty units.

5. Finally, sequence 8 is that on the same day he did possess a substance, the substance being a controlled drug, namely 11.87 grams of pure methamphetamine. This is an offence under s 308.1(1) of the Criminal Code and carries a maximum sentence of two years imprisonment and/or 400 penalty units.

6. The maximum penalties prescribed by legislation represents the seriousness with which the community, through parliament, views this offending. There is no doubt that any involvement in the importation of illicit substances is something which calls for a stern sentence reflecting the need for general deterrence and denunciation.

7. The offender has spent one month and seven days in custody, bail refused, in respect of these matters. The commencement date will be backdated accordingly.

AGREED FACTS

8. The following is a summary of the agreed facts which appear in exhibit A.

9. On 2 April 2021, an air cargo consignment bearing the bill of lading number ending 873 arrived in Australia from the United States via the international courier DHL. The consignment was in the form of a rectangular brown cardboard box and contained three printer ink toner cartridges. The consignee was identified as Addy Tuffin of Umina Beach and a phone number ending 219 was referenced. The shipper was PHP Technology Inc of California. The description of the goods was listed as being printer ink cartridges.

10. ABF officers conducted an examination of the consignment. One of the cartridges was deconstructed and officers located four packages containing white granules wrapped in clear plastic and blue tape. The packages were covered in black toner powder. The white granules were tested and returned a presumptive reading for methamphetamine. Forensic testing confirmed that the substance contained in the printer cartridges was methamphetamine, a pure weight of 80.3%. The total quantity of methamphetamine was 2.4 kilograms, which is a commercial quantity.

11. On 7 April 2021, the AFP took possession of the consignment. It was reconstructed using original and substitute material from the consignment to resemble its original condition. A tracking device was placed inside the consignment. In the weeks prior to the delivery of the consignment MW, the co‑offender, was communicating with an unidentified contact, saved in a cypher phone as “Phat 27”. MW provided Phat 27 with updates on the tracking and the delivery of the consignment. Around the same time this offender was communicating with his brother, who resided in Vietnam, using several encrypted instant messaging platforms. It is apparent from some of the messaging that the brother was located overseas.

12. The offender also had a Vietnamese phone number saved in his phone under the contact name “Phat man”. On 8 December 2020 a conversation occurred where the offender told his brother that he was not working due to an injury and was struggling with debt and loan repayments. The relevant portions of those messages are set out in paragraph 11. It is apparent from those messages that this offender’s brother was sending him money and the offender offered to work for the money, whether it was “dirty or proper work”. In evidence the offender agreed the reference “dirty work” was a reference to getting involved “in the drug stuff” and criminal activity.

13. On 28 January 2021, the offender’s brother sent him MW’s St George Bank account details. The message instructed the offender to pay MW $1,300 and to keep $500 for himself. Later that evening the offender confirmed with his brother that the money was in his bank account.

14. On 11 April 2021, the day before the offender met with MW to take possession of the consignment, he had a further conversation with his brother. The text messages appear in paragraph 14. The messaging is confusing. The brother tells the offender to keep count of how many packages he sends. The offender appears to say, “four so far”. Further, he said “received three”.

15. On 12 April 2021, at about 12.05pm, an AFP officer posing as a DHL courier driver delivered the consignment to the consignee address. A person known to the investigators as VB answered the door and advised the named consignee was not at home at the time. VB signed for the consignment. The consignment remained at VB’s house until it was collected by MW around 1.45pm. At around 2.20pm surveillance captured MW in a silver Toyota Camry travelling on the M1 Pacific Motorway at Mooney Mooney towards Canley Heights. Between 3.18 and 3.30pm MW and the offender were surveilled in the vicinity of an intersection in Canley Heights. At that time the offender took possession of the consignment.

16. The offender then immediately returned to his home in Canley Heights. The tracking device confirmed the offender took the consignment to his house. At around 7.05pm AFP officers executed a search warrant on the offender’s house. The occupant failed to open the door. Entry was effected through the side of the house. The officers located the outer box of the consignment in the rear courtyard of the offender’s house, beside the gate. The inner box of the consignment was located inside the offender’s house in the spare bedroom. The consignment had been opened, revealing the printer ink toner cartridges. The offender’s fingerprint was found on the inner flap of one of the white cardboard printer cartridge boxes.

17. The offender was questioned about the consignment and admitted to collecting the consignment under the direction of his brother. The substance of the conversation between the offender and the attending police officers is set out at paragraph 22. He confirmed that his brother asked him to collect the consignment and that he would be paid for doing so. He said that he would be paid 2 or 3 thousand sometimes. The payments were not made by the brother, but somebody would drop cash off at the letterbox.

18. Initially, the offender’s phone could not be located. His wife was requested to call his mobile phone, which led to the discovery of two mobile phones belonging to the offender inside the kitchen pantry. A frequency detector was located in the offender’s bedroom. He told the officer that the purpose of the device was to “look for spy cameras”. He said that he had purchased and collected the device at about 4pm that afternoon, however, none of the surveillance evidence captured the offender leaving his premises other than between 3.26pm and 3.31pm.

19. The following facts relate to sequence 7. The offender told police the cash was concealed underneath a blanket on the top shelf of a cupboard in the bedroom. A total of $9,000 was located in bundles of $100 note denominations. Communications between the offender and his brother demonstrated on several occasions the offender was instructed to drop off or collect cash from various locations.

20. On 28 January 2021, the brother sent the offender a message instructing him to attend a park at a specified time. The offender was instructed to take a photograph of where he had left a plastic bag containing $5,000 to be collected by an unknown person. The offender subsequently sent two photographs depicting the location of the plastic bag hidden in some grass bushes. The brother responded by messaging “Shove it down more so no-one can see”. The conversation, which appears at paragraph 27 of the agreed facts, then followed.

21. On 28 January 2021, the brother sent the offender a photograph of the cardboard box covered with a label displaying Korean hyalographic and a photograph of the box placed underneath a lamp post outside a house. He then gave the offender the instructions set out in paragraph 28 of the agreed facts. He was told to go to a park in Fairfield, to wear a mask and hat, and to deposit $1,800. The remainder of the message is not decipherable in any meaningful sense.

22. The following facts relate to sequence 8, possessing a controlled drug. At the time of searching the house AFP officers were told by the offender that there was methamphetamine in his bedroom. He further stated the drugs were for personal use. Upon searching, AFP officers located a loose crystalline substance in a clip sealed plastic bag in a drawer within the TV entertainment unit. Forensic testing confirmed the net weight of the substance was 16 grams, with a pure weight of 11.87. Those are the agreed facts.

SUBJECTIVE CASE

Report by Anthony Diment, Psychologist

23. Exhibit 1 comprises all the subject material, including medical documents and character references. The offender was interviewed by Anthony Diment on 29 November 2021 for the purpose of preparing a report. On 2 January 2022, the offender’s GP referred him to the psychologist under a mental health plan for treatment of depression, anxiety, and substance abuse. Pursuant to that plan, the offender has consulted with the psychologist on ten occasions between 4 January 2022 and 18 July 2022.

24. The offender reported an unremarkable childhood, enjoying the support of both parents. Although he completed year 12, he had already commenced an apprenticeship as a motor mechanic, after which he worked in that trade for about 11 years or so.

25. The offender met his wife about four years ago, later marrying and having a daughter. His wife is a childcare worker. He described their relationship as okay. His medical history was also unremarkable, reporting no known current medical conditions.

26. The offender told the psychologist that he started drinking when he was about 14 years of age, starting using cannabis in his late teens and smoking methamphetamine in his early 20s. He reported that during an argument with his wife in October 2020 he stabbed himself in the abdomen and required surgery at Westmead Hospital. He obtained an abdominal laceration of some 7 centimetres and a traverse wound ranging up to 5 centimetres deep. Following this, his GP suggested a mental health care plan. He said that he consulted with a psychologist but could not remember her name. At the time of the offending, he was using drugs regularly.

27. The psychologist undertook a number of tests and assessments. Over time his anxiety ranged between severe and extremely severe. His stress levels have generally been moderate. When last tested by the psychologist on 18 July 2022 he was normal in relation to depression, anxiety, and stress, indicating that his overall mood had improved in a positive direction. Nevertheless, the psychologist considered him to be at risk of declining mental health. There was evidence of longstanding depressive episodes and anxiety relating to his heavy use of cannabis, methamphetamine, and alcohol.

28. The psychologist diagnosed a persistent depressive disorder with anxiety and substance use disorder. He stated:

“Both depression and anxiety have the strong potential to significantly impair an individual’s usual rational thought process and decision-making capacity, especially in the situation of his argument with the girlfriend of heightened emotional arousal and chronic depression/anxiety at the time of his offending. This was also likely exacerbated by a degree of paranoid thinking due to cannabis effects and the above provides a causal link to his offending, which he told me he regrets.”

29. It is unclear whether the psychologist was attempting to discern a material link between the offender’s psychological conditions and the offending. It is also unclear the extent to which the use of cannabis and other drugs contributed to the offending. Of course, self-intoxication is not a mitigating factor. I shall return to the question of mental impairment when dealing with the submissions advanced on behalf of the parties.

30. The psychologist considered that the offender had prospects for rehabilitation and a low risk of reoffending given his family support, his expression of regret and the abstinence from the use of illicit drugs.

31. A second report, dated 18 November 2022, was prepared by Dr Diment. He confirmed that further improvement in the offender’s overall mood had occurred and recommended a treatment plan which would significantly lower the risk of reoffending.

32. Documents produced by Westmead Hospital confirmed the offender’s admission in October 2020 for the self-inflicted abdominal stab wound. A report by the offender’s wife’s GP confirmed the matter reported to the psychologist that on the day after the arrest of the offender she suffered a miscarriage at just seven weeks.

Character References

33. I have read the six character references relied upon by the offender. As might be expected, they generally speak highly of the offender and refer to his expressions of remorse. There were also several references to the hardship suffered in custody and how the offender has changed since that time.

Evidence of Offender

34. In his evidence, the offender confirmed that he was using ice at the time of the subject offending and suffering from mental health problems. He agreed that he got involved in doing jobs for his brother, which he understood were criminal in nature, in order to make money. Whilst he accepted that he opened the outer box of the consignment, he denied opening the inner box. He also denied that he had a frequency detector in order to test the consignment for a tracking device. He accepted what he did was wrong and acknowledged the harm caused to his family, himself, and the community.

35. He accepted that his brother and Phat were business partners, but denied ever meeting Phat. He also denied that he was unpacking the drugs to arrange for them to be ready to be collected from his home. He was asked whether he noticed the package came from the United States, he did not accept that he had, as he was not paying attention to that.

OFFENDER’S SUBMISSIONS

36. The written submissions prepared by counsel for the offender, MFI 4, address the s 16A(2) factors. Regarding the circumstances and nature of the offence, it was submitted the evidence is insufficient to permit a finding to the requisite degree that the offending commenced at a time prior to 11 April 2021. Whilst there is evidence in the agreed facts of the offender’s involvement with his brother prior to that date, I accept that in respect of the subject offending the evidence does not rise to a level sufficient to draw a conclusion that the offending commenced earlier than the day before the subject offending. Accordingly, the offender will be sentenced on the basis that the offending was temporally narrow in compass.

37. Further, I accept that the submission that the offending was limited to the following:

1. receiving instructions to collect the package from MW;

2. leaving his house at about 3.26pm and driving to a nearby location to collect the package at about 3.30pm; and

3. taking the package back to his home at about 3.31pm, and sometime between 3.31pm and when the police arrived at 7.05pm removing the inner box from the outer box and touching the inner flap of one of the boxes.

38. I accept the submissions by counsel for the offender and decline to draw any inference adverse to the offender concerning his possession of the frequency detector. Further, I accept the submission of counsel for the offender that it can be inferred that the offender was at least reckless as to the fact that the package contained a prohibited drug. Such a finding is permitted pursuant to s 307.83, which identifies the fault element as recklessness.

39. Further, I accept the submission that the role performed by this offender was less significant than that played by MW. I also accept the submission that the offending was motivated by financial gain in the context of addiction to methamphetamine. Whilst the addiction, of course, is not a mitigating factor, it is a relevant factor in considering the state of mind and capacity of the offender. Coupled with this is the fact that the offender was suffering from psychiatric conditions, reflected by the fact that at about six months prior to the offending he self-inflicted a serious wound.

40. Having regard to the totality of the subjective evidence, I accept the submission that the offender has demonstrated remorse and contrition.

41. I have also had regard to the fact the offender pleaded guilty at an early stage, albeit, in the face of a very strong Crown case. This entitles the offender to a discount on sentence of 25%, representing the utilitarian value of the plea and the facilitation of the administration of justice.

42. This offender has cooperated with law enforcement agencies. Not only did he make full admissions in relation to the subject offending, he also provided confidential assistance in unrelated matters. It was agreed that the assistance provided was valuable, entitling the offender to a further discount on sentence. Together with the discount of 25% for the guilty plea, I intend to apply an overall discount of 40% to reflect the assistance which has been provided to authorities.

43. The offender did not have a criminal history prior to the subject offending and has not committed offences since. He is entitled to a finding of good character which warrants some degree of leniency.

44. He is almost 32 years of age, is married with a young child and suffers from the mental conditions to which reference has already been made. I am satisfied that the sentence to be imposed is one which is adequate having regard to all of the circumstances.

45. The prospects of the offender’s successful rehabilitation are tied to his abstinence from illicit substances. I am mindful of the prognosis described by the expert at page 12 of his report. Should the offender adhere to the treatment plan at page 13 of the report, his risk of reoffending would be considered low.

46. Finally, it was submitted for the offender that should a prison sentence be imposed, then the sentence for the more serious charge could adequately represent the criminality of the two less serious charges, warranting a sentence which is wholly concurrent. I will consider the question of totality below.

CROWN SUBMISSIONS

47. The Crown submitted that a full‑time sentence of imprisonment with a non‑parole period is the only appropriate way to dispose of this matter. I acknowledge again my obligation to impose a sentence that is of a severity appropriate in all of the circumstances, taking into account the matters specified in s 16A(2) and other matters known to the Court. Further, I accept the submission that general deterrence and denunciation are important sentencing considerations for Federal drug offences.

48. The offending of this type is difficult to detect and the influx of drugs into the community has a deleterious and significant impact. Ordinarily stern punishment is warranted in the case of this type of offending. I also accept the Crown’s submission that good character is not an unusual characteristic of people involved in drug importation.

49. In relation to the offender’s role, the Crown made the following submissions:

1. the offender communicated with his brother, who was in Vietnam, about the delivery status of the consignment;

2. he collected the consignment from MW;

3. he partially opened and checked the contents of the consignment. The Crown submits, and I accept, that this demonstrates that he was a trusted person in the operation;

4. the Crown submitted that he was in possession of equipment that could be used to scan for surveillance devices and that he took considered steps to avoid detection, indicating that he knew the contents of the consignment, that they were something illegal and may be subject to detection and monitoring by authorities. Whilst I accept that the offender knew that the consignment was something illegal, I declined to find that he used the frequency detector on the consignment.

50. The quantity of the drug is also relevant, but not determinative. The offender attempted to possess 2.4 kilograms of methamphetamine, which is more than three times the threshold for a commercial quantity. There is no evidence the offender was aware of the precise quantity of the drug. I accept the Crown’s submission that the fact that the offender engaged in this offending for financial reward is relevant to the assessment of objective seriousness.

51. In terms of parity with MW, the Crown identified that this offender had been charged under a different section, but that it carries the same maximum penalty as the offence provision under which MW was sentenced. MW was sentenced for his involvement in the importation of two consignments containing drugs. He received a total effective sentence of eight years imprisonment, with a single non‑parole period of four years. The indicative term for the like offence in this matter was seven years imprisonment.

52. It was submitted from the Crown that both this offender and MW had a role in moving the consignment. MW’s role was more extensive in that he moved the consignment from the Central Coast to western Sydney and this offender travelled from his home a short distance to collect it from MW. Nevertheless, it was submitted for the Crown that the offending of this offender was more significant than that of MW due to the fact that he knew those responsible for arranging the importation.

53. Other matters arose during the course of the sentence hearing on 12 December 2022. By comparing the offence provision in the present matter to the provision in the matter of MW, it was submitted that as the fact of unlawful importation gives rise to absolutely liability, there is no difference in the moral culpability attributable to the two offences.

54. Of course, the objective seriousness is a matter to be determined having regard to the facts of the individual cases. It was submitted for the offender that the evidence does not establish that the drugs were imported into the country. This is another point of difference with MW, who was aware of that fact. The Crown conceded that if I am not satisfied the offender knew the drugs had come from overseas, then it is a matter which would reduce the offender’s moral culpability.

55. There was an attempt to obtain a concession in cross‑examination as to that fact, by reference to the offender inspecting the package, which would have included the bill of lading, however, the offender denied that he had done that, saying he was not paying attention to it.

56. The Crown submitted that there was an irresistible inference that the offender knew his brother was arranging the importation from overseas and submitted that the offender knew everything was coming from overseas. I do not accept those submissions. Whilst, plainly, that conclusion is an inference available on the facts, to prefer it over any other inference would involve reasoning by speculation. There is no evidence which would satisfy me to the requisite standard that the offender was aware of the fact that the substance had been imported. This then moderates his moral culpability.

57. Regarding the mental health of the offender, it was not put that it caused him to commit the offence but rather there was a connection in that his decision-making processes were impaired. I accept that submission and will have regard to the mental health of the offender as part of the surrounding circumstances of the offending.

58. The Crown submitted that I would have regard to the conduct of the offender on occasions prior to the day before the subject offending in making a determination as to the offender’s role. I am not prepared to do so. Whilst contextually those facts may be informative, it would in my view be an error to have regard to what occurred as long ago as December 2020 in determining the objective seriousness of the offending which took place on 12 April 2021.

FORMULATION

59. Pursuant to s 17A and having considered all other available sentences I am satisfied that no sentence other than one of imprisonment is appropriate in all of the circumstances of this case.

Objective Seriousness

60. In determining the objective seriousness of the primary offence, I have had regard to the quantity of the drug, the role of the offender, which I accept was accurately described by counsel for the offender, and the fact that the offending was committed for financial gain. I find the objective seriousness in relation to sequence 6 to be just below midrange.

61. In relation to sequence 7, being deal with money suspected of being proceeds of crime, the offence provision contemplates an amount up to $100,000. Given the amount in question was just $9,000, I find the objective seriousness of that offending falls at the low range.

62. In relation to the possession charge, having regard to the quantity of the drug, namely 11.87 grams of methamphetamine, I find that the objective seriousness falls at the low range.

Parity

63. Turning again to the question of parity, I consider the offending by MW to be more serious than this offender given the period of time MW was engaged in the offending and the events leading to it, compared with the relative short period of time in which this offender was involved. In addition, MW arranged for others to assist in the offending and for their payment. MW was obviously a necessary link in the chain of possession or attempted possession. It follows that this offender ought to be sentenced to a lesser penalty than MW.

Indicative Terms

64. I intend to impose an aggregate sentence. Before doing so I am required to provide an indicative term in relation to the three offences. I do so as follows.

65. For sequence 6, that is attempting to possess a commercial quantity, I provide the indicative term before any discount of five years, and, after a discount of 40%, of three years.

66. For sequence 7, deal with money reasonably suspected as being the proceeds of crime, I provide an indicative term before any discount of five months imprisonment, and, after a discount of 40%, of three months.

67. In relation to sequence 8, that is the possess offence, I provide an indicative term before discount of 12 months, and, after a discount of 40%, of seven months.

Parity (Continued)

68. I accept the submission advanced on behalf of the offender that there should be a high degree of concurrency in relation to the sentences for the convictions. The relevant sentencing principle to consider is whether the sentence of one conviction can reflect the criminality of the other. If so, then the sentence should be concurrent, otherwise there should be some degree of accumulation. In my opinion a very modest degree of accumulation is justified in the circumstances given the different type of offending.

SENTENCE

69. You are convicted of three charges to which you have previously pleaded guilty, that is, attempt to possess a commercial quantity of a border controlled drug, namely 2.4 kilograms of methamphetamine. You are further convicted of dealing with money reasonably suspected of being the proceeds of crime, namely $9,000. Finally, you are convicted of possessing a substance being a controlled drug, namely 11.87 grams of methamphetamine.

70. For those convictions I sentence you to full‑time imprisonment for a period of three years and four months. I set a single non‑parole period of 20 months, allowing for the one month and seven days in custody before being granted bail. The commencement date for the sentence will be 5 February 2023. The head sentence will expire 4 June 2026 and the earliest date for release is 4 October 2024. I would ask the parties to agree upon those calculations.

71. In fixing the non‑parole period I have had regard to the fact that this is the offender’s first time in custody following conviction, the finding of good character and the fact that by reason of his mental condition serving a term of imprisonment will be harsher than for a prisoner not suffering those conditions.

Explanation to Offender

72. DH, do you understand the sentence?

OFFENDER: Yes, your Honour.

73. HIS HONOUR: So, the sentence entails a term of imprisonment of not less than a non‑parole period, followed by a period on parole in the community, which may be subject to conditions such as being of good behaviour and if you breach those conditions the parole may be revoked, and you could be sent back to prison. The earliest release date for you is 4 October next year.

Parity (Continued)

74. For the abundance of clarity on the question of parity, I note there is a significant difference between the sentence imposed on MW, a head sentence of eight years and a non‑parole period of four years and the sentence for the current offender. This ought not give rise to any sense of grievance on the part of MW as he was sentenced in respect of the additional conviction of attempting to possess a commercial quantity of cocaine.

75. Further, the cooperation and information provided by the current offender was far more valuable to law enforcement agencies than that provided by MW. The other considerations of parity have been discussed elsewhere in these remarks.

76. Yes, you will be taken into custody.

77. HIS HONOUR: Okay. So, the Corrective officers, they’re just outside the door, they will escort you into the cells. Do you have any questions?

OFFENDER: No.

HIS HONOUR: Do the parties agree with the dates?

LEWIS: Yes, I’ve checked them.

DETHERIDGE: Yes, your Honour.

HIS HONOUR: Yes, I’ll adjourn.

**********

Amendments

16 August 2023 - Changed location of heading titled: Parity (Continued).

Decision last updated: 16 August 2023