R v Do

[2024] NSWDC 203

District Court

New South Wales

Medium Neutral Citation:

R v DO [2024] NSWDC 203

Hearing dates:

23 February 2024

Date of orders:

5 April 2024

Decision date:

05 April 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

The offender is to serve a non-parole period of five years imprisonment, dating from 30 July 2022, together with the balance of term of three years six months. The entire sentence will have been served on 29 January 2031 and his first date for eligibility to parole will be 29 July 2027

Catchwords:

SENTENCE – supply large commercial quantity methylamphetamine – limited role – prior good character – social disadvantage

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)

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

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571, [2013] HCA at [46]

Chong v R [2020] NSWCCA 235

El Kheir v R [2019] NSWCCA 288 at [47]

Kassoua v R [2017] NSWCCA 307

Kwok v R [2018] NSWCCA 200

Lam v R [2014] NSWCCA 50 at [33]

McLean v R [2020] NSWCCA 344

Melikian v R [2008] NSWCCA 156 at [42]

Muldrock v R [2011] HCA 39

Plaisted v R [2015] NSWCCA 287

R v Dang [2005] NSWCCA 430

R v Irusta (2000) 117 A Crim R 6 at paras [41]-[49]

R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44

R v Taouk [1998] 65 A Crim R 387 at [390] - [391]

R v Tyler (2007) 173 A Crim R 458

Ryan v R [2001] HCA 21, 206 CLR 267 at [29]

Tiew v R [2020] NSWCCA 234

Wan v R [2017] NSWCCA 261

Category:

Sentence

Parties:

Rex (Crown)
William Do (Offender)

Representation:

Counsel:
S Wilkinson (Crown)
A Djemal SC (Offender)

Solicitors:
D Egan (Offender)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2022/00224307

Publication restriction:

none

JUDGMENT

1. Mr Do, who I will refer to in these reasons as the offender, was arrested on 30 July 2022 and charged with an offence of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW). The maximum penalty for this offence is a sentence of life imprisonment and/or a fine of up to 5,000 penalty units. A standard non-parole period of 15 years imprisonment applies.

2. The maximum penalty of life imprisonment signifies the seriousness with which the community, through the legislature, regards this offence. The standard non-parole period and the maximum penalty provide important guideposts for the sentencing exercise.

3. The offender pleaded guilty on 16 August 2023. He is entitled to a discount of 25% on his sentence because of the utilitarian value of his guilty plea.

4. He was 23 years old at the time of this offence and he has no prior criminal record, and he was previously a person of good character.

5. The offender was in the company of Solomon Hagoss at the time of his arrest. Mr Hagoss was also charged with a serious drug supply offence arising from the same incident. Although he has pleaded guilty, the sentencing proceedings in Mr Hagoss’ matter are yet to be finalised and for this reason questions of parity do not arise.

The agreed facts

6. On 24 June 2022 the United States law enforcement seized 75 kilograms of methylamphetamine in Long Beach California. The drugs were analysed, and the purity of the substance was calculated to be 98%. The net weight of the substance was 74.7 kilograms. The drugs were to have been sent to Sydney to an unknown criminal syndicate.

7. Australian authorities were informed of the seizure of the drugs. On 5 July 2022 New South Wales Police were authorised to conduct a controlled operation in relation to the seized methylamphetamine.

8. In the days prior to 30 July 2022, New South Wales police learnt that unidentified persons would be travelling via a car from Victoria to New South Wales to take possession of a large quantity of drugs.

9. Police commenced reconstructing the consignment seized in the United States. 1 kg portions of an inert substance were placed in each of 74 vacuum sealed bags. The bags were then placed in two large black zip up suitcases. In one of the suitcases a Daily Telegraph newspaper date 23 July 2022 was inserted. Both suitcases were then put into the boot of a police undercover motor vehicle.

10. On 30 July 2022, the police took 9 photographs of the two suitcases containing the 74 vacuum sealed bags.

11. The vehicle was then driven by police to the vicinity of Garema Circuit Kingsgrove. After arriving, the police opened the boot and unzipped one of the suitcases, exposing the clear bags with the white inert substance inside. Another photograph was taken, and the suitcases were left in this position.

12. The vehicle was then driven to a carpark nearby, located between 40 and 42 Garema Circuit. The carpark was almost empty. The vehicle was parked nose first against the northern wall of the carpark. The agreed facts contain photographs of the position of the vehicle. The vehicle was left locked and the key to the vehicle was placed on the top of the front driver’s side wheel under the wheel arch.

13. At approximately 11.17am, police attached to the investigation received an encrypted text message from a contact called “the Librarian”, seeking to organise collection of the drugs.

14. What followed was a dialogue by way of text message between the Librarian and the police that continued until 1:09 PM. During the dialogue, police observed a vehicle registration 1FD1EI arrive at the carpark at about 1:00 PM and park beside the undercover police vehicle that contained the two bags in the boot.

15. The offender was seen to get out of the passenger side of his vehicle and try to enter the undercover police vehicle. This proved impossible. He returned to his car. Messages were then exchanged to the effect that the boot would not open.

16. The offender was observed at 1:06 PM to again leave his vehicle by the front passenger side door and try to open the rear door of the covert police vehicle containing the two bags. This again was unsuccessful. He then sought to open the boot. This was also unsuccessful, as was his attempt to open the front passenger side door.

17. Eventually police sent a message that the keys to the vehicle were on the front right tyre. Upon receipt of this information, the offender obtained the keys and was able to electronically open the boot of the vehicle. He removed one of the two black suitcases, carried it to the passenger side of his car and placed it in the car via the rear passenger side door. The agreed facts contain images of this taking place.

18. At 1:08 PM the offender closed the rear passenger side door of his vehicle and walked to the undercover vehicle and retrieved the second black suitcase from the boot. With his right hand he closed the boot, but at this point the contents of the second case spilt to the ground. He knelt down, picked up some of the white bags and put them bag into the second suitcase. The agreed facts contain images of this occurring. The co-offender Mr Hagoss got out of the front driver side door of the offender’s vehicle and helped the offender pick up the remaining bags and also placed them in the suitcase.

19. Both the offenders then picked up the suitcase and carried it to the passenger side door of the vehicle. The offender opened the rear passenger door and placed the suitcase within the vehicle. Mr Hagoss got back into the front driver’s side. The offender closed the rear passenger side door, walked around to the rear of the undercover vehicle, reached under the front wheel arch and returned the keys as he had been requested. He then walked back around the rear of the undercover vehicle and entered his car through the front passenger door.

20. At 1:09 PM, with the offender sitting in the front passenger seat, Mr Hagoss in the driver seat, their vehicle was observed by police to travel through the carpark towards the western exit onto Garema Circuit. The vehicle was intercepted by specialist police from the Tactical Operations Unit at that point and both the offender and Mr Hagoss were arrested.

Pre-sentence custody

21. The offender has remained in custody since that time. His sentence will be backdated to 30 July 2022.

Objective seriousness of the offending

22. In Muldrock v R [2011] HCA 39 (“Muldrock”) at [27], the High Court stated that the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. Crimes (Sentencing Procedure) Act 1999 (NSW) at 54A(2). It is to be determined wholly by reference to the nature of the offending, although if matters relevant to the offender’s mental health were linked to the offending, this may, in some circumstances, be relevant to the assessment of the objective seriousness of an offence.   

23. Relevant factors that may affect the assessment of objective seriousness of drug supply offending include, without being exhaustive:

1. the role of the offender and the level of his or her participation in the offence, R v MacDonnell [2002] NSWCCA 34 at [33]; (2002) 128 A Crim R 44; Melikian v R [2008] NSWCCA 156 at [42];

2. the quantity and purity of the prohibited drugs, though these may not be the principal determinative factor: El Kheir v R [2019] NSWCCA 288 at [47]; R v Dang [2005] NSWCCA 430 (Dang) at [24]; and

3. other factors such as the number of occasions on which the drug was supplied, and the planning involved: Dang at [24].

24. The quantity, type and purity of the prohibited drugs are all significant factors in considering the objective seriousness of this offence. Here the nominal total quantity of methylamphetamine was almost 150 times the threshold for a large commercial quantity. The nominal purity was extremely high. Methylamphetamine is regarded as a particularly pernicious prohibited drug, because of the negative impact it has on users and because of the negative impact it has on society generally.

25. A further important feature in an assessment of the objective seriousness of an offence is to identify the role played by the offender.

26. The offender travelled by car from Melbourne to take possession of what he understood to be a substantial consignment of prohibited drugs. The Crown accepts that it cannot be established that he was aware of the actual quantity, purity, or the precise type of the prohibited drug. The offender intended to transport the drugs back to Melbourne and make the drugs available to those who had retained him to perform this role.

27. As is commonly observed in large scale drug supply cases, persons involved at a high level in such offending routinely take steps to protect themselves from detection by the authorities. Taking delivery of prohibited drugs carries a high risk of detection by the authorities. The same can be said of the task of transporting the drugs from Sydney to Melbourne. Expendable but trusted subordinates are routinely used for tasks such as these. R v Tyler (2007) 173 A Crim R 458.

28. In this matter there is no evidence that the offender was to have participated in the distribution of the consignment, or that he would have had a share in the profits made from the sale of the drugs. There is no evidence that he was to exchange money prior to taking possession of the two suitcases.

29. Although there is no sworn evidence in this case from the offender, and having regard to the caution that needs to be exercised when reading the contents of psychological reports and other un-tested documentary material, the offender provided an explanation of his involvement to Ms Alison Cullen, a forensic psychologist, who prepared a report dated 18 August 2023, in the following terms:

“4.2 Mr Do described his motivation as “very straightforward”, explaining “being addicted to drugs I racked up a drug debt of $20K give or take. I wasn’t paying on time and I had this one chance to clear my debt picking up some bags in Sydney”. Mr Do claimed while he was not drug affected during the commission of the offence it was “likely still in my system” due to his daily use at the time. Accordingly he asserted, “I hold myself accountable. I am well aware” of the conscious decision made to travel to Sydney with the purpose of retrieving bags...”

30. I accept in the balance of probabilities that this explanation provides the basis for his involvement.

31. The offender was a user of methylamphetamine at the relevant time. The material tendered on sentence also suggests he is a reliable worker and a competent person generally. In my view, his personal qualities made him a useful tool to those who stood to profit from the consignment.

32. Although I do consider his role in this matter to be a confined one, it was crucial to the enterprise, and it represents very significant criminality.

33. Although I cannot be satisfied beyond reasonable doubt that he was aware of either the type of drug, the very high level of purity or its precise quantity, I am satisfied he was tasked with taking possession of a very substantial quantity of prohibited drugs and driving those drugs back to Melbourne.

34. The offender made a deliberate decision to participate. He must have known that his actions, if successful, were going to result in a very substantial quantity of prohibited drugs becoming available to drug users within the community.

35. By the time he had opened the car boot and removed the first approximately 37 kg suitcase, it would have been obvious to him that the quantity of the prohibited drug he was taking into his possession was very substantial, yet he continued.

36. Given the size and obvious value of the consignment, the offender was trusted by those persons who enlisted him to take on the task. Although senior counsel for the offender submitted that within drug distribution networks ‘everyone is trusted’, I do not think that generalisation applies here, give the magnitude and the value of the consignment.

37. During the sentencing hearing, submissions were made by the Crown that I should find the objective seriousness of the offending to fall within the mid-range. Senior counsel for the offender submitted that because of his limited role and the matters I have outlined, the objective seriousness of the offending was below the mid-range.

38. In my view the objective seriousness of the offender’s conduct does fall, to a limited extent, below the mid-range, if one is to use that categorisation for an offence of this type. My reasons for this conclusion, as set out above, relate to the confined role the offender had, and because he was unaware of the precise nature of the drug, its actual quantity and its very high level of purity. Until he took possession of the first suitcase, he was not aware of the actual magnitude of the consignment. Despite these features, the offender willingly participated in a crucial way in what he believed was a very substantial drug supply offence. His role was integral to the success of the operation.

39. An issue that would have elevated the seriousness of the offender’s offending was if it could have been established that he was ‘the Librarian’; the individual who communicated with the police by text during the day of the attempted possession of the consignment. The Crown concedes that this fact cannot be established beyond reasonable doubt.

40. A submission made by senior counsel for the offender was that because the offence was never going to succeed, given the US authorities had intercepted the drugs, the need to visit ‘retribution’ upon the offender was reduced. Reliance was placed on R v Taouk [1998] 65 A Crim R 387 at [390] - [391] and R v Irusta (2000) 117 A Crim R 6 at paras [41]-[49].

41. This is not a case where the offender was encouraged by the police to participate in a more serious offence than he contemplated. He understood he was taking possession of a large quantity of prohibited drugs and taking them back to Melbourne.

42. That the drugs were not disseminated to the community is of very limited significance, either to retribution as a sentencing purpose, or to the assessment of the objective seriousness of the offending more generally.

The offender’s subjective case

Childhood disadvantage

43. Alison Cullen, a forensic psychologist who prepared a report that was tendered in the proceedings without objection, noted that the offender was the middle of three children and had been born in Vietnam. When he was one year old, he and his sister Jenny and his parents migrated to Footscray, Victoria. His younger brother Kenny was born four years later.

44. They grew up in an area the offender described as being like “a ghetto” that comprised “a lot of junkies”. His parents both worked long hours and there was a period, when the offender was aged between 8 and 10, when his father was incarcerated. He did not know this at the time. The offender denied any exposure to parental substance misuse or exposure to family violence between his parents, although he did recall frequent arguing and instances of his father’s infidelity. He told Ms Cullen of an occasion when he was 14 or 15 when he had to take physical steps to stop his father from committing suicide. He described this as his most traumatic childhood experience.

45. The offender told Ms Cullen that he was the subject of corporal punishment as a child. “I got beat up a lot until I was strong enough to stop them” at about the age of 13. He described inappropriate parenting that included physical assaults with items such as a belt and a chair. He recalled an occasion when he was only 5 or 6 years of age, when he and his sister were threatened by their mother with a knife. He told Ms Cullen that he considered this behaviour to be normal and that he did not know anything different.

46. Jenny Do, the offender’s sister, said in an unchallenged affidavit, in refence to his childhood:

“William and I had a difficult upbringing. Our parents were physically violent when they disciplined us and that culminated in me leaving home for three years between the age of 15 and 18. This meant William was left at home without parents and a younger brother who has autism. I know this couldn’t have been easy on William given the violence we were both subject to.”

47. Ms Do continued in her affidavit:

“unfortunately, as I was unavailable for William during his formative years I think he missed out on proper support. This may have contributed to the complications he has faced in making the right decisions and may have played a role in the difficulties he has encountered. I believe these challenges have taken a toll on my brother’s emotional well-being and I can only imagine the impact it has had on his ability to cope with the pressures of life and make sound decisions.”

48. As detailed in his sister’s affidavit, the offender told Ms Cullen that inadequate supervision and physical abuse at home were the reasons that his sister Jenny ran away for three years. Ms Cullen noted that it was clinically relevant that the knife incident described above precipitated Jenny’s decision to run away. The offender considered that his childhood was normal, but he accepted it had been a struggle. During the interview he told Ms Cullen:

“I appreciate how hard they worked to get stable living conditions despite not being around. I was left alone a lot. I remember crying at the door (inside the home) alone, waiting for them to come home. I’d wake up and no one was at home.”

49. Educationally, the offender told Ms Cullen that neither of his parents were proficient in English and he only began to learn English after he commenced primary school. He experienced verbal and physical bullying from an older student and this made him hate school. He completed Years 7 to 12 at a Catholic College and “kept my head down and tried to be studious”. He did well at school and felt increased pressure and responsibility from his parents because “I was the only one in the family to help out and be the provider for the future.”

50. Ms Cullen also took a collateral history from Jenny Do, who verified that Footscray had been well known as a community of drug users, that their parents worked long hours, and this had resulted in loneliness and inadequate supervision. There were frequent arguments between their parents, often regarding their father’s infidelity and the children were often subjected to physical abuse as a form of discipline, including the occasion when their mother threatened them with a knife.

49. The period of two years in which the offender’s father had been incarcerated coincided with the time when she had run away from home. Ms Do told Ms Cullen that she only returned when she was 18, at a time when she knew her mother would not be able to control and hit her. During the time she was away she lost contact with her family, including with the offender. She noted that she was eight years older than him and had felt significant pressure to assist in the care of him and had resented him for this when she was growing up. Ms Cullen noted that Jennifer told her:

“I used to tell him that no one cared about him because he is only a little child. We can laugh about it now, but he grew up believing that no one cared about him”.

52. Ms Do said that during the offender’s adolescent years she considered that he was depressed:

“He was isolated and alone with our parents being away. Essentially, I raised him. I was helping to parent him and I went away when he was only 7 years of age. He was calling every single day to look for me.”

53. Ms Cullen concluded, relevant to the offender’s childhood:

“Psychological assessment has revealed an emotionally and socially deprived childhood characterised by: first generation immigrant parents who were required to work excessive hours thereby resulting in protracted periods of separation, social isolation, inadequate supervision and loneliness, being raised in a low-socio demographic community whereby exposure to drugs was commonplace, thereby resulting in a normalisation of same. Increased responsibility and pressure to aid his family culturally, linguistically and ultimately financially as well as exposure to frequent family arguments, including being subjected to physical abuse.”

54. Ms Cullen continued:

“Additionally, this assessment has revealed that Mr Do abruptly changed schools at which time he was subject to bullying during his formative years. This, coupled with the isolation and loneliness he experienced in the home environment, most probably contributed to the development of an introverted and withdrawn interpersonal style as well as a negative self-concept, as evidenced on his PAI, which in turn predisposed him to depressive episodes from an early adolescence.”

55. Based on the above evidence, which I accept, I consider that the offender’s childhood involved substantial disadvantage. This feature, together with the offender’s early introduction into substance abuse and his prior good character which I will also address shortly, mean that the weight ordinarily would be given to personal and general deterrence can be moderated to an extent in favour of rehabilitation, see Bugmy v The Queen (2013) 249 CLR 571, [2013] HCA at [46].

The offender’s drug use

56. Ms Cullen noted the offender said that he first tried alcohol when he was 15 to 16 years of age. Thereafter he engaged in weekly social binge drinking. He first tried marijuana at the age of 14. He began smoking methylamphetamine when he was 19. He told Ms Cullen that the drug had helped him work long hours as a bar manager and to also undertake tertiary studies.

57. Mr Do described how his dependence increased over the four years before his arrest and how in the preceding two years he had been consuming methylamphetamine daily. He considered himself to be a functioning addict. He described being unable to eat and sweating in the period following his arrest. He maintained he had not used drugs during his time in custody. There is no evidence to suggest that he has, and I accept that this is so. As I will note shortly, he has been a model prisoner.

58. Ms Cullen considered that at the time of the offence the offender satisfied the diagnostic criteria for a Moderate Stimulant Disorder.

The Offender’s mental health

59. Ms Cullen considered him to be polite, cooperative, friendly, articulate, coherent and forthcoming at the time of her assessment. His thought pattern was logical and there was no evidence of hallucinations or delusions.

60. Ms Cullen considered he displayed affective and physiological signs of depression. His account together with the collateral history provided by his sister, was that he had suffered from depressive episodes from early adolescence. Ms Cullen opined:

“It’s likely that the onset of Mr Do’s drug use was thereby precipitated by his interpersonal style and depressed mood, which coincided with the dissolution of his first significant relationship.

It’s likely that the interpersonal conflict Mr Do endured, in the four-months leading up to the commission of the offence, whereby he was trying to navigate living with his ex-partner whilst simultaneously managing the demands associated with working and studying full-time, culminated in increased stress, depressed mood and in turn both perpetuated and compounded his polysubstance misuse. Moreover, Mr Do’s drug misuse most probably perpetuated his depressed mood. As supported by the positive correlation and his disclosures of suicidal ideation during this time. He also acknowledged that his choice of drugs enabled him to stay awake and therefore uphold his multiple responsibilities at that time. Mr Do disclosed that his drug addiction ultimately resulted in a drug debt, which in turn motivated his offending conduct. This assessment has revealed that Mr Do values his (cultural) obligation of academic progression and financial responsibility which likely extends to being debt adverse.”

61. Ms Cullen considered that the time of the offending Mr Do satisfied the diagnostic criteria for a moderate recurrent major depressive disorder. She considered that her assessment had identified a direct nexus between his mental health impairments (his depressed mood), his corresponding drug use and the index offence. I accept the analysis of Ms Cullen in these areas. I note that the Crown did not dispute that there was a nexus between the offender’s mental health and drug abuse and the subject offence.

62. That this connection can be made out is relevant to the assessment of the offender’s moral culpability. In my view, his moral culpability is reduced to an extent because of these factors.

63. A further matter relevant to the offender’s mental health arises because of the circumstances of his arrest. He suffered a head injury after being tasered by arresting police. Medical records about this event were tendered in the sentence hearing.

64. Ms Cullen commented on this in her report:

“1.5.1 Mr Do described an unremarkable physical history until the time of his arrest. He explained that “the tactical police rammed into the car” before they assaulted and tasered him. He reported that his injuries required medical attention, as corroborated by the Concord Hospital and Justice Health records provided. The ED discharge referral form notes “Patient brought by police (in custody) with injuries from interaction with tactical unit including electroshock weapon injury to left side of head. Reports mainly head injuries... Patient cannot recall the exact details of the incident, thinks may have lost consciousness for unspecified period of time... CT brain shows no acute injury... Sutures for removal in 1 week.”

2.2.3.4 Mr Do indicates that he is experiencing specific fears or anxiety surrounding some situations. The pattern of responses reveals that he is likely to display significant symptoms related to traumatic stress. He has likely experienced a disturbing traumatic event in the past - an event that continues to distress him and produce recurrent episodes of anxiety.

2.2.4 PTSD checklist for DSM-5 (PCL-5)

2.2.4.1 … Mr Do responded to items on this screener with respect to the trauma he experienced in relation to the assault on him during his arrest. Mr Do’s score significantly exceeds the cut-off, thereby suggesting that he is exhibiting terms commensurate with PTSD which would benefit from treatment.

5.9 Following the index offence, Mr Do reports ongoing symptoms consistent with F43.10 Posttraumatic Stress Disorder, (PTSD). As PTSD is a significant factor influencing risk of relapse it is highly recommended Mr Do is able to access psychotherapy to resolve such symptomatology. It is likely that Mr Do’s current PTSD symptomatology, specifically his ongoing perceived need for hypervigilance/fear of safety, contributes to the pervasiveness of this disorder and his time in custody thereby being more onerous.”

65. I note that the circumstances of the offender’s arrest were not part of the material on sentence, and I make no finding about whether or not he was assaulted by police, as that word is used in the report, and medical record when he was arrested. I accept that the experience of the arrest was traumatic.

No criminal history/prior good character/model prisoner

66. As noted, the offender has no prior criminal history. Prior to his arrest he was working as a bar manager at the Marrakesh Bar in Melbourne 30 to 32 hours per week throughout the four years following his completion of year 12 and whilst he was studying for a Bachelor of Project Management at RMIT. In the years after finishing school, he has also been in two long term relationships.

67. Shaun Valentic deposed in an unchallenged affidavit that he had known the offender since he was a teenager and had employed him when he was 18 years of age.

Mr Valentic observed:

“over the years, I’ve witnessed him grow into a reliable, punctual, and exceptionally hardworking individual. William consistently embodied qualities that extend beyond the professional environment, making him a genuine role model in both character and work ethic. His commitment to excellence is further reflected in his academic endeavours. William was actively pursuing a Bachelor of Project Management RMIT, demonstrating a commendable dedication to his education and career.”

68. The Court received a transcript of the offender’s academic record from RMIT that commenced in 2017 and continued until 2021. It is notable in the period from 2019 onwards, that the offender either failed or withdrew from four of 13 subjects.

69. Mr Valentic expressed the opinion that despite the current circumstances he continued to consider the offender to be a person of good character. In his view, the offending conduct “appeared to be a deviation from an otherwise commendable track record.”

70. A similar opinion was expressed by Jennifer Do, who said in her affidavit:

“My brother’s dedication to his work, his pursuit of higher education, and his genuine concern for the wellbeing of those around him are all indicative of his positive character and his potential to contribute to society in a meaningful way.”

71. Ms Do also expressed the opinion:

“This situation does not define who he is as a person, and I firmly believe that this is an isolated incident.”

72. Also tendered in the sentencing hearing were Correctional records of his activities and conduct in the period of remand between 3 August 2022 and 4 January 2024, a substantial period. Those records are uniformly positive. The offender’s work ethic, his attitude and his relationship with both other inmates and staff were all the subject of praise.

73. The records indicate that he has been employed in various jobs throughout his time awaiting the sentencing hearing. He has also engaged as a volunteer in a new program in which working inmates were trained to train mentally ill inmates in physical exercise. He is recorded as having been actively involved in both developing and implementing this program. On 15 August 2023 case notes recorded:

“While working with the inmates with mental illness he shows the characteristics of a compassionate person. The mental health inmates he has come in contact with self-esteem has increased and there seems to be a sense of connection between himself and inmates he is training.” [as written]

74. On 29 September 2023 another note recorded:

“Inmate Do continues to volunteer as a trainer in the exercise program involving mental health inmates. This is a biweekly program in which he is part of a team that prepares and conducts the exercise sessions. He always undertakes his duties with the utmost diligence, and I am finding him to be a very motivated and dependable inmate. He is approachable and has a friendly demeanour.”

75. On 10 December 2023 a further note records:

“Do takes directions positively and his behaviour and attitude is very encouraging. The author has observed his progress during his time at MRRC that Do has voluntarily increased his level of responsibility in many aspects from being a general hand, leading hand and teaching the new workers the various roles, this includes leading by example to create a positive environment for other inmates. Do applies himself to the task and is not easily discouraged or distracted, as well as showing competence and working independently and is well trusted within the workplace. Do also volunteers his time after work as a trainer mentor in an exercise program every two weeks that involves inmates with mental health. Do has undertaken this role with the utmost diligence. The author gives Do the highest recommendation for employment during his remaining time whilst incarcerated.”

76. The Court also received a letter from Dwayne Billings, an overseer within the MRRC, who wrote that the offender was a trusted, capable worker and was promoted to the position of leading hand in January 2023.”

77. A letter was received from Martin Robinson, the Chaplain at the MRRC, who wrote that he had always found the offender to be a welcoming, helpful and encouraging inmate and a regular and enthusiastic attendee of chapel services. Mr Robinson noted that he was trusted inmate with a positive relationship with staff and others. He noted that the offender had spoken to him about his charges and his desire for a positive future. The offender had engaged deeply with the Positive Lifestyle Program and the staff were impressed with his work on all eight PLP sessions completed: self-awareness, anger, depression and loneliness, stress, loss and grief, assertiveness, self-esteem and future directions.

78. Mr Robinson concluded:

“William showed rare insight into his life and behaviour during the PLP sessions. It is a privilege to do the PLP program with men who engaged to their utmost ability and I believe that William has done just that.”

79. Also tendered on sentence were certificates documenting the offender’s attendance at a variety of courses and his completion of a certificate in hospitality, a positive lifestyle program run by the Salvation Army, a safe work program run by Corrective Services Industry.

80. These matters support several conclusions. Firstly, that prior to the commission of this offence, the offender was a person of good character. Although as I have noted the offending must be regarded as very serious, it is the case that the evidence supports the conclusion that his offending conduct was an aberration.

81. A person of prior good character can be extended a measure of leniency when contrasted with an offender with an extensive criminal record. That the conduct can be seen as an aberration is relevant to the extent of such leniency. See Ryan v R [2001] HCA 21, 206 CLR 267 at [29].

82. The need for the sentence to specifically deter the offender from further offending can also be seen to be reduced in this context, although regarding the importance of general deterrence, less weight can be given to prior good character in a serious drug supply case, see Lam v R [2014] NSWCCA 50 at [33].

83. Further, the offender’s prior work history and engagement with tertiary education, together with his very impressive and plainly genuine efforts during the lengthy remand period following his arrest, in employment, engagement with others and education, all point very positively to the conclusion he is unlikely to reoffend.

84. Relatedly, given his prior good character, conduct whilst on remand and the presence of supportive figures in the community such as his sister, I have reached the conclusion that his prospects of rehabilitation are good.

85. Rehabilitation of this still young offender is an important sentencing objective, especially because the evidence supports the conclusion that he has the capacity to lead a productive law-abiding life.

Remorse

86. The Crown accepts the guilty plea is some evidence of remorse. Additionally, the material on sentence supports the conclusion that he is remorseful. In her affidavit Jenny Do observed:

“Whilst he was upset and overwhelmed when he first entered custody, I can see how his attitude has changed and how he wants to improve his life once he is released from custody. He constantly speaks about the regret of his choices and how he wishes he sought help, but he doesn’t let that overwhelm him like he did when he first went into custody. I think he is using his regret over his actions to move towards a more positive future.”

87. In a letter to the Court, the offender wrote that he acknowledged his wronging and took full responsibility for his actions. He described his conduct as selfish and irresponsible. He accepted that his part in the process could have contributed to the ongoing cycle of addition that could ruin the lives of other people and he wrote:

“my time being incarcerated has given me the opportunity to reflect on my actions and understand the consequences as a result. Being among other inmates as well as training inmates who suffer from severe mental health issues due to drugs has sobered me up to the reality of how drugs can affect people’s mental, physical and social health and I am ashamed that my actions could have potentially contributed to these factors.”

88. In my view, the above matters, together with his lengthy demonstrated constructive behaviour while he has been in custody, supports the conclusion that he is remorseful and has taken responsibility for his conduct.

Reasons not to impose Standard Non-Parole Period

89. The standard non-parole period for this offence is 15 years imprisonment. I have reached the conclusion that a lesser sentence is warranted given all the matters that I have referred to up to this point.

Comparable cases

90. The Crown provided a schedule of comparative cases, and I am not going to read them out in their entirety, but I have considered each one. I just wanted to quickly go through some of the features of those matters.

91. McLean v R [2020] NSWCCA 344, involved the same offence, supplying a large commercial quantity of methylamphetamine. In that instance the quantity was 18.85 kilograms. Mr McLean had pleaded guilty but late. His sentence was reduced by 10%. The brief facts were that 9 kilograms of the drug were found in a car and the further amount was located in a storage unit rented by the offender. The drugs had a purity of 77-79%. He was found to occupy a subordinate but trusted position. He was not a mere courier but was responsible for picking up, storing and delivering the drugs. It was considered the objective seriousness of the matter was slightly above the mid-range. He had reasonable prospects of rehabilitation. There was evidence of remorse. He had a prior criminal record involving violence but not drugs. That record included a conviction for reckless wounding, and it was considered that that disentitled him to leniency.

92. In terms of objective seriousness of the offending the Court found that his role was significantly greater than this case. There was a degree planning and packaging and concealing the drugs. He was not a mere courier but was in a trusted position. He rented a garage space to store the drugs. He was in possession of six mobile phones, a money counter, resealable plastic bags. The drugs were worth between 1.4 and 2 million dollars. He was not a principal, but he played a subordinate but integral role. In my view his role was greater to quite an extent than this matter. He was sentenced at first instance to 12 years seven months imprisonment with a non-parole period of eight years seven months. The severity appeal that he lodged was dismissed.

90. The second matter was a case of Tiew v R [2020] NSWCCA 234. This involved the same offence. Again, it involved methylamphetamine, this time 67.477 kilograms. The offender pleaded late; his sentence was discounted by 10%. Mr Tiew was part of an international syndicate importing drugs from Malaysia. His role was that of an interface between the syndicate and customers. He had been recruited to the syndicate in Malaysia and came to Australia to serve the purposes of the syndicate in the importation of methylamphetamine. He registered a business name, established a bank account, leased a warehouse to receive flatpack furniture and boxes of shelving which contained the drugs; the 67 kilograms of methylamphetamine was located in the facility. He had been promised $1,000 in Malaysian currency for every kilogram of the product transacted and the syndicate was paying for his rent. In my view his role was much greater than the role of this offender.

91. Subjectively Mr Tiew had a strong subjective case but there was not any evidence of him being a person of prior good character. He was 32 at the time, so much older, and 36 when he was sentenced. He had spent four years on remand. He came from a semi-rural life in Malaysia with limited education. He had accrued a gambling debt and had been in assaulted in Malaysia because of the debt and coerced into coming to Australia to work in this syndicate. There was no previous history of criminal activity. He was considered to be remorseful, but there was no positive evidence of good character. It was considered that because of his problems with English and absence of visitors, his time in custody would be more difficult than normal.

92. It was confirmed by the Court of Criminal Appeal that the objective seriousness of the matter was above the mid-range and that he occupied an essential and highly responsible role of storeman and a high-risk delivery man. He was sentenced at first instance to fourteen and a half years imprisonment with a non-parole period of ten years ten months. His appeal was unsuccessful. In my assessment his role was greater, and his subjective case was not as compelling.

93. The case of Chong v R [2020] NSWCCA 235, involved the same offence, also methylamphetamine, a quantity of 30 kilograms. He was considered to have a significant role as the Sydney coordinator of a trans-continental drug syndicate that was importing drugs from Malaysia. He had been recruited in Malaysia, flown to Hong Kong for training about how to conceal methylamphetamine in the tyres of a spare wheel to a motor vehicle and then sent to Australia. He received directions from Malaysia, sought out premises to receive vehicles transporting the drugs in 10 kilogram quantities from Perth and assisted and directed two vehicles to interim premises on direction from Malaysia.

94. Mr Chong was 34 at the time. He was poor, and grew up in a rural area. He completed secondary school. He had engaged in low skill factory work. He had not been able to marry because of his limited finances and had turned to gambling and methamphetamine use. He attended church in custody and was drug free. It was considered that he was remorseful. In his appeal the Court found the sentencing Judge had erred by making no express finding about remorse, and that he had no prior criminal history. The Court found that the objective seriousness of the matter was above mid-range and that his role was a significant one. He was sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years. In my assessment the objective seriousness of his offending was significantly more serious than in this matter, and his subjective case was not as compelling.

95. In Kwok v R [2018] NSWCCA 200, the offender was charged with manufacture and also supply large commercial quantity of methylamphetamine, an amount of 15.9 kilograms. This offender had pleaded guilty early and received a discount of 25%, as happened here. He and another offender named Wan were involved in the importation of methylamphetamine into Australia in wax blocks. He had sourced items for manufacture to remove the drug from the wax and had supervised the cooking process. He liaised with others to inform them when the drug was ready for supply. He had come from China, and he had been involved in preparing the methylamphetamine with a co-offender Wan in Beverly Hills premises.

96. Mr Kwok was arrested in a taxi in Beverly Hills in possession of two bags containing 16 kilograms of methamphetamine. There were three falsely subscribed phones and quantities of cash. The Beverly Hills premises were searched, and the police found a total of 144 kilograms of methamphetamine, as well as manufacturing equipment to remove the substance from wax. The 144 kilograms was the subject of a manufacturing offence. This offender had a criminal record in Hong Kong including theft and fraud. He had incurred gambling debts. He had also been convicted of blackmail and administering a drug with intent to commit and indictable offence. He had served a sentence of 10 years imprisonment in Hong Kong and was 58 years old. He had been born into a poor family and had attended primary school but not high school. He had worked in low paid jobs and had also worked at a local correctional centre and a casino.

97. It was held that the objective seriousness of his offending was in the upper range. The planning and organising was over and above that which would normally be found in even large manufacturing and supply cases. The offending was committed for financial gain. His prior record disentitled him to leniency and without his involvement, the enterprise in Australia would not have become operational. He was sentenced to 15 years imprisonment with a non-parole period of 11 years three months. On my assessment this is a matter is far more serious objectively and the offender’s subjective case was not nearly as compelling as in this instance.

98. Mr Kwok’s co-offender, Mr Wan, was considered by the Court of Criminal Appeal as well, Wan v R [2017] NSWCCA 261. The same charges, the same drugs, with an early plea and a 25% discount. The facts were similar in relation to the methamphetamine coming into Australia in wax blocks. The consignment was stored in a warehouse at St Peters and then a drug laboratory at Beverly Hills. Mr Wan had come to Sydney from Hong Kong to assist in the extraction and to arrange supply. He had a significant and trusted role and had a prior criminal record in Hong Kong. He did not have a conviction previously for an offence of such seriousness. The objective seriousness of his involvement was in the upper range, and it was considered that he was part of a sophisticated system of trafficking prohibited drugs. The indicative sentence that he received for the supply matter was 12 years with a non-parole period of nine years.

99. Kassoua v R [2017] NSWCCA 307 involved the supply of a large commercial quantity of methylamphetamine. The quantity was less, 8.8 kilograms. He also pleaded guilty early, and the sentence was discounted by a 25%. The drugs were located in a vehicle during an undercover police operation. Mr Kassoua had accompanied a co-offender, who made arrangements with an undercover officer to supply a kilogram of the substance for $200,000. After the transaction, police searched his apartment and a vehicle allocated to his apartment and found two large bags containing 8.8 kilograms of methamphetamine in the boot. Mr Kassoua denied it was his car. Forensic examination identified 10 fingerprints that matched his. He claimed he was going to receive no financial reward and had been storing the bags as a favour. He then changed his story and said that an associate had brought the methylamphetamine and he did not know how much it was. The account that he gave on sentence was rejected.

100. The objective seriousness of the matter was in the upper end of the mid-range of objective seriousness. It was considered that he had participated in an organised criminal activity with his eyes wide open. He was not simply performing a limited role and was actively involved in a serious criminal enterprise. His sentence was 10 years with a non-parole period of seven years and six months.

101. There are number of other matters referred to in this table. Perhaps the only other one I might refer to, given the time of day, is a matter of Plaisted v R [2015] NSWCCA 287. He pleaded guilty to a charge of knowingly being involved in the supply of a large commercial quantity of methylamphetamine, 21.8 kilograms. He also pleaded guilty to another supply offence involving a kilogram of heroin. He was an employee of a transport company, and he was part of a syndicate that sourced drugs from Sydney, arranged for them to be transported to Perth and for cash to be transported back to Sydney. He was an employee of Watson’s Express Transport, and he arranged the transportation.

102. In the subject offending Mr Plaisted had transported a case to the Yagoona Railway Yard in a truck with other contents. It was loaded onto a train bound for Perth. The case contained 6 kilograms of methylamphetamine. He separately took another bag to Tas Freight Depot where it was transported to Melbourne. He arranged for a co-offender to be transported by a truck driver to Perth with the bag. That bag contained 6 kilograms of methylamphetamine and the kilogram of heroin I have referred to.

103. On request from the principal of the syndicate, Mr Plaisted had arranged for a truck to pick up two suitcases from Bondi. This truck was stopped, and the suitcases were confiscated and 11.4 kilograms of methylamphetamine was seized. It was accepted that he did not know the weights of each parcel but that he knew that each exceeded 1 kilogram.

104. This case involved a course of conduct. It was not an isolated matter and his involvement was substantial. He had a minor criminal record in three Australian States but no matters of the same magnitude as this. He was born in 1981 and this was much older. He had had difficult upbringing. He had started using drugs as a teenager and had been both a heavy drinker and a gambler. The objective seriousness of the offending was limited to transporting the drugs, an essential but not a substantial role in the syndicate itself. Mr Plaisted was sentenced to 11 years imprisonment with a non-parole period of seven years. In my view whilst the quantity of drug was not so great, the offender was repeatedly involved, in high level drug supply. The offending was more serious than in this matter. He had a very limited subjective case.

105. I have read each of the other cases referred to by the Crown. In my view, and this was a submission that was made on the offender’s behalf in the sentencing hearing, these cases all, represent more serious offending than is apparent in this matter. None of these cases involved an offender with a powerful subjective case, as Mr Do has.

Special circumstances

109. I find that there are special circumstances that warrant an adjustment to the non-parole period required to be served by the offender.

110. The reasons for my conclusion in this regard are his relative youth at the time of his arrest, the absence of any prior criminal history and his prior good character, the very positive progress he has made to date in custody, the evidence that his treatment by police at his time of his arrest has brought about symptoms consistent with post-traumatic stress disorder, making it likely that his time in custody will be more onerous, and the need he will have for extended supervision and support upon his release into the community.

Sentence

111. Both the Crown and Senior Counsel for the offender accepted that the only available disposition was a sentence of fulltime imprisonment. I have sought to arrive at an appropriate sentence by having regard to the various purposes of sentencing, particularly in this case the contrasting purposes of general deterrence and rehabilitation. The offence is particularly serious and yet the offender is still young. He possesses qualities that will assist him to live a lawful productive life in the future.

112. I order that the offender is to serve a non-parole period of five years imprisonment, dating from 30 July 2022, together with the balance of term of three years six months. The entire sentence will have been served on 29 January 2031 and his first date for eligibility to parole will be 29 July 2027.

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Decision last updated: 05 June 2024