R v Doan, R v Wensor

[2019] NSWDC 399

District Court

New South Wales

Medium Neutral Citation:	R v Doan, R v Wensor [2019] NSWDC 399
Hearing dates:	21 June 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [39] and [40]
Catchwords:	CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity CRIME — Drug offences — Manufacture prohibited drug — Knowingly take part in manufacture CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Possess prohibited drug SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Muldrock v R (2011) 244 CLR 120
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Keith Peter Douglas Wensor (Mr Wensor) Tony Thanh Trung Doan (Mr Doan)
Representation:	Counsel: N Keay (Crown) M Valentin (Mr Wensor) D Roff (Mr Doan)   Solicitors: S Knox (Crown) M Cruz (M Cruz and Associates) (Mr Wensor) L Dao (Oxford Lawyers) (Mr Doan)
File Number(s):	2017/001334292017/00134535

SENTENCE

1. HIS HONOUR: Mr Doan pleaded guilty shortly prior to trial to one count that between 1 May and 3 May 2017 at Quialigo he manufactured a prohibited drug namely methylamphetamine in an amount not less than the large commercial quantity for that drug. That is an offence under s 24(2) of the Drug Misuse and Trafficking Act. It has a maximum penalty of life imprisonment and an applicable standard non-parole period of 15 years. He also pleaded guilty to an offence that on 3 May 2017 at Gundary he supplied a prohibited drug namely methylamphetamine in an amount of 365.1 grams being an amount not less than the commercial quantity for that drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act and has a maximum penalty of 20 years imprisonment. There is an applicable standard non-parole period of 10 years. When sentencing the offender on the supply charge he asks that I take into account on a Form 1 a further offence of supply prohibited drug being methylamphetamine.

2. In relation to the offender Mr Wensor he entered a plea of guilty at the conclusion of the evidence in a trial in relation to a charge that between 1 May 2017 and 3 May 2017 at Quialigo he knowingly took part in the manufacture of a prohibited drug, namely, methylamphetamine in an amount not less than the large commercial quantity applicable to that drug. That is an offence under s 24(2) of the Drug Misuse and Trafficking Act, and has a maximum penalty of life imprisonment and an applicable standard non-parole period of 15 years. There is also on a Section 166 Certificate concerning him an offence of possess prohibited drug.

Facts

3. The facts in relation to Mr Doan were agreed and the following is taken from those facts. The facts for the supply on the form 1 are as follows. Detectives lawfully intercepted a mobile phone used by Mr Doan during the investigation. They established he used the term “food” to refer to the prohibited drug methylamphetamine. At 10.30am on 7 March 2017 he flew to Perth. While in Perth he made arrangements for a package to be sent to an address in Bonnyrigg. He provided a false name for the package. On 13 March 2017 he looked up the particular sender organisation of the package on the internet on his mobile phone. On 17 March he returned to Sydney from Perth. On 18 March he again checked on the consignment over the internet. On 19 March he received a text message which read “Fingers crossed have food tomorrow”. Forty minutes later he logged onto another package-tracker website on the internet.

4. On Tuesday 21 March 2017 detectives from the Drug Squad and the State Crime Command intercepted the package at the TNT at Botany. They searched it and they located a shirt, screw drivers, a cocktail set and a Gucci brand baseball cap which linked back to some closed circuit television footage of the offender in Perth on 7 March. DNA from the hat and shirt matched the DNA of the offender. On 21 March he made a number of phone calls to enquire about the whereabouts of the package and he was told the package had been seized by police. Later that day he sent a text message which said “Hey, I’m in trouble, I need a hideout soon”. He made a phone call later saying, “If anything happens take care of Mum, I might go holiday for a long time”. Ultimately 82 grams of methylamphetamine was found in the package.

5. In terms of the manufacture offence, in early April 2017 investigators became aware that the offender was making regular trips to the home address of the co-offender Mr Wensor in Quialigo. That is a rural farm located about 25 minutes outside of Goulburn. It contains a single storey dwelling and a number of sheds. At 4.51pm on 2 April investigators intercepted a call between Mr Doan and an unknown male during which Mr Doan discussed going down “there” and a box and a container arriving in an unknown location. During the call Mr Doan discussed preparing things and dropping off “the machines” to the same location and taking some “food” down to it. He also discussed cleaning. As a result of that conversation the investigators conducted surveillance of the property on 5 April 2017. They observed a shipping container about 50 metres to the rear of the dwelling house. That shipping container was purchased by the co-offender Mr Wensor on 4 April 2017.

6. About 9am on 24 April 2017 investigators conducted surveillance again at the property where a white Toyota Hi Ace van was observed parked next to the shipping container. Investigators observed the offender Mr Doan walk from the rear of the dwelling house over to the driver’s side door and open the driver’s side door and then walk back towards the dwelling house. On 3 May 2017 the investigators conducted further surveillance where the Hi Ace van was observed parked in the vicinity of the shipping container. They observed the offender Mr Doan spend about four hours in the shipping container wearing latex gloves and going into and coming out of that container. The police lawfully intercepted a number of phone calls between Mr Wensor and a person referred to as Phu in the intercepts. On 3 May 2017 Phu makes numerous enquiries about the whereabouts of Mr Doan and whether he had left to attend Sydney and Mr Wensor informed him, that is Phu, that Doan was still in the “box”.

7. About 8.40pm on 3 May 2017 the offender Mr Doan left the property, drove the Hi Ace van and was stopped shortly thereafter by police. They conducted a search and they located a clear Cryer Vac bag within one of the driver’s side panels containing 365.1 grams of methylamphetamine with a purity of 78% and Mr Doan was arrested. There were then some follow up calls between the person Phu and Mr Wensor and to the extent that Mr Wensor is referred to in the agreed facts that evidence was led before the jury and I will come back to that in due course.

8. The police executed a crime scene warrant at the property and they searched the shipping container where they located an extraction fan ending in a plastic pipe that extended outside the rear wall of the shipping container. There were buckets containing brown liquid and a bin containing disposable gloves. On the bench were two plastic colanders containing filter paper and a white crystalline solid, a white plastic tray containing white solid residue, various other items clearly used in the manufacturing process. There were precursors also located within the container. Located in the shipping container were a number of substances containing methylamphetamine. The total weight of the liquids and solids in which that substance was detected was 17.31 kilograms, the pure amount of methylamphetamine found was 1.679 kilograms.

9. During the search of the shipping container police located a number of used gloves, an empty Fanta can and a cigarette butt and DNA samples matching the DNA of Mr Doan. Similarly, fingerprints of his were found on the exterior of a glass beaker, the exterior of a 10 litre glass flask and the exterior of a 500 millilitre glass Pyrex measure jug. Clothing items of the offender were also found to contain methylamphetamine as was the keys located upon his arrest which opened the padlock to the shipping container. In essence the agreed facts for Mr Doan were effectively made out during the trial of Mr Wensor insofar as Mr Wensor’s involvement is concerned.

10. The Crown case against Mr Wensor was that he made available his property for the purpose of the manufacture of the methylamphetamine. There was evidence in the trial that he purchased the container in which the manufacturing occurred in early April 2017, and that the container was parked within approximately 50 to 100 metres of the rear of Mr Wensor’s residence on the rural property. There was evidence that Mr Doan was a friend of Mr Wensor and during the period of the manufacture Mr Doan from time to time resided at Mr Wensor’s home.

11. The evidence led in the trial was that on 11 April 2017 Mr Wensor had attended a Bunnings outlet with Mr Doan and purchased items that the police ultimately located inside the container and that had clearly been used in the manufacturing process. The telephone intercept material in the trial commenced on 29 April 2017. There is a third man recorded on some of those calls who clearly was aware of what was happening on Mr Wensor’s property. The content of those calls and words said by Mr Wensor make it clear that he knew very well what was occurring in the container on his premises. Mr Wensor in those calls informs the other man of Doan’s whereabouts and what he was doing from time to time and at times the third man appears to speak to Mr Wensor in some type of code. The calls on 3 and 4 May are particularly probative of the offender Mr Wensor having full knowledge of what was occurring from an early time in the venture. I am satisfied beyond reasonable doubt that from the time of the purchase of the container he was aware of the fact that the drug was to be manufactured in the container by Mr Doan and that he was aware sometime in early May that more than the large commercial quantity had been manufactured.

12. His evidence before the jury that he only knew of what was occurring after a conversation with Doan on the afternoon of 3 May 2017 I consider in the circumstances of this case to be simply fanciful and I reject it.

13. I am unable to determine precisely what either offender was to make out of the manufacture of the drug. Clearly they involved themselves in it for financial gain. Mr Wensor gave evidence before the jury that for staying at the premises Mr Doan was to do some work on his home. Whether that was what he expected to receive from allowing his premises to be used to manufacture this drug I cannot determine.

Assessment of objective seriousness

14. I turn then to my assessment of the objective seriousness of the offence. The amount of the drug manufactured is one factor to consider but it is not determinative. Here it was 17.31 kilograms gross being 1.679 kilograms pure. The large commercial quantity is 500 grams so the amount of drug produced was far in excess of the large commercial quantity. Mr Doan was clearly the person primarily involved in the manufacture. The intercepted phone calls suggest that he was to distribute the drug through others but in terms of the manufacture he, in my view, should be seen as the principal player. Mr Wensor’s role was one of permitting his property to be used for the purpose of the manufacture and is a considerably lesser role than that of the offender Mr Doan’s.

15. I consider Mr Wensor’s offence to be considerably less than a notional mid-range offence but not at the bottom of the range.

16. The offender Mr Doan’s offence, in my opinion, is within the mid-range for the offence given the quantity produced and his role. The supply offence to which Mr Doan pleaded guilty is a significant one given the amount of 365.1 grams although the substance did not enter the user market and it was clearly derived from the manufacture. I assess it as a little below the mid-range of objective seriousness.

Mr Doan’s subjective case

17. I turn then to the subjective cases. I will deal with Mr Doan’s first. He is 34 years of age. He has a criminal history which disentitles him to leniency here. In particular he was sentenced on 21 October 2010 to a term of imprisonment for an offence of enhanced cultivation of cannabis for a commercial purpose. As I say his record disentitles him to leniency but it is not an aggravating factor. He has been in custody since his arrest on 3 May 2017 and I will backdate the sentence to that date.

18. There is in relation to Mr Doan a Sentence Assessment Report, a psychologist report from a Mr Borenstein, a letter from the offender, a testimonial from the offender’s brother and some material from the offender’s Justice Health and Corrective Services file. In terms of his family background that material indicates that he was born in Vietnam and is the youngest of five children. He arrived in Australia in 1995 aged 10, with his older brother, and was reunited with his mother and his sisters and brother. There is no suggestion that his upbringing was deprived in any way. His mother has passed away but he receives visits in gaol from his aunt and his brother.

19. In terms of his education, he left school in Year 9 and began factory type work. He told the psychiatrist that his involvement in the cultivation offence on his record was due to financial issues arising from gambling. In terms of his substance use he claimed to the psychologist that he returned to Vietnam in his early 30s where he was introduced to the drug ice and has battled with that drug since then.

20. In terms of his psychological/psychiatric history, the psychologist considered he had low average intelligence. There was no suggestion of any serious psychiatric disorder, his mood was depressed but that is understandable given he is awaiting sentence on such a serious offence.

21. When previously supervised by Community Corrections he is recorded in the Sentence Assessment Report as having responded satisfactorily.

22. In terms of his attitude to the offence, the Sentence Assessment Report does record him saying that he is sorry for what he did and that he acted as he did to support his own habit. There are similar sentiments in the offender’s letter and in the psychologist’s report.

23. He was assessed in the Sentence Assessment Report as having a medium risk of reoffending. The material in the Sentence Assessment Report and in the extracts from his Corrective Services file suggests that he is putting his time in custody to good use. He is considered to be a good worker in the gaol system. He has not incurred any gaol infringements.

24. His plea of guilty was a late plea and I propose to allow him a 10% discount of his sentence for the utilitarian value of it.

25. I think on balance there is limited evidence of remorse in relation to Mr Doan.

26. Given his prior record for drug offending, I consider his prospects of rehabilitation are no better than guarded.

27. In relation to Mr Doan I do not consider there is any basis for a finding of special circumstances.

28. The sentence will be backdated to the day he was arrested when he entered custody.

29. In relation to Mr Doan the drug that is the subject of the supply was clearly manufactured in the manufacture that Mr Doan was engaged in and for which he faces sentence. The amount was not taken into account in the amount of drug relied upon for the facts concerning the manufacture. I think though the criminality for that offence can be seen as being encompassed to a significant degree in the sentence for the manufacture offence. For that reason I propose that there be a limited accumulation of those sentences. I have had regard to the Form 1 matter on the supply sentence which must have some impact on that sentence given it is a supply not related to the manufacture.

Mr Wensor’s subjective case

30. I turn then to Mr Wensor’s subjective case. His date of birth is November 1960 so he is 59 later this year. He has little by way of a criminal record and his lack of any significant criminal record entitles him to leniency here as his lack of criminal record did not facilitate the commission of the offence.

31. There is a Sentence Assessment Report. He lives on the rural property where the offence occurred with his three daughters and his granddaughter. Two of his daughters are now young adults. I have had regard to the impact of his incarceration upon them in the general mix of factors that I need to consider when imposing sentence.

32. He has in the past worked for a considerable time at Fairfield Council until a workplace accident resulted in him receiving a Work Cover payout. He lived off that payment together with a small income from a grazing partnership with a neighbour.

33. He has no remorse for the offence and essentially repeated to the sentence assessment report author what he told the jury in terms of his knowledge of what was occurring at his premises. He does not receive a discount of his sentence for his plea of guilty given its timing.

34. He was assessed as having a low risk of reoffending and given his lack of a significant record and his age I consider he has good prospects of rehabilitation.

35. In Mr Wensor’s case I propose to make a finding of special circumstances when fixing the non-parole period given his age, his first time in custody and his prospects of rehabilitation.

36. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. The manufacture of this type of drug in such a large quantity is a very serious offence, hence Parliament has provided that life imprisonment is the maximum penalty. All prohibited drugs but this particular drug, in my view, are causing enormous damage in our community and society. Those who involve themselves in the large scale manufacture of it must receive significant sentences to deter them and others from engaging in such offending. It is clear that the only appropriate sentence is one of imprisonment. The maximum penalty and the standard non-parole period have been taken into account as legislative guideposts as explained by the High Court in Muldrock v R (2011) 244 CLR 120.

37. I have departed from the standard non-parole period in Mr Doan’s case because of his plea of guilty and in Mr Wensor’s case because of my assessment of the objective seriousness of his offence and my finding of special circumstances. In relation to Mr Doan I will impose an aggregate sentence and I will initially indicate the indicative sentences and then the overall aggregate sentence.

38. Mr Doan please stand up. Mr Doan, you are convicted of the two offences to which you have pleaded guilty. In relation to the manufacture not less than the large commercial quantity offence there is an indicative sentence of 11 years imprisonment with a non-parole period of eight years and three months. On the supply offence there is an indicative sentence of five years imprisonment with an indicative non-parole period of three years and nine months. There is a total aggregate sentence of 12 years with a non-parole period of nine years imprisonment. The sentence commences on 3 May 2017 and expires on 2 May 2029. The non-parole period expires on 2 May 2026. Whether you are released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison. Have a seat.

39. Mr Wensor would you please stand. You are convicted of knowingly take part in the manufacture of a large commercial quantity of methylamphetamine offence. You are sentenced to a term of imprisonment consisting of a non‑parole period of four and a half years and a balance of term of two and a half years imprisonment. That is a total sentence of seven years imprisonment. It commences today and expires on 20 June 2026. The non‑parole period expires on 20 December 2023. The earliest date you may be released to parole is the date of the expiry of the non-parole period which is 20 December 2023. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison. On the possess offence on the s 166 certificate I simply record a conviction, no further penalty.

Orders

40. The following orders are made in relation to Mr Doan:

1. Convicted of the two offences to which the offender pleaded guilty.

2. In relation to the manufacture not less than the large commercial quantity offence there is an indicative sentence of 11 years imprisonment with a non-parole period of eight years and three months.

3. On the supply offence there is an indicative sentence of five years imprisonment with an indicative non-parole period of three years and nine months.

4. There is a total aggregate sentence of 12 years with a non-parole period of nine years imprisonment. The sentence commences on 3 May 2017 and expires on 2 May 2029. The non-parole period expires on 2 May 2026.

41. The following orders are made in relation to Mr Wensor:

1. Convicted of knowingly take part in the manufacture of a large commercial quantity of methylamphetamine offence.

2. Sentenced to a term of imprisonment consisting of a non‑parole period of four and a half years and a balance of term of two and a half years imprisonment commencing 21 June 2019 and expiring on 20 June 2026. The non‑parole period expires on 20 December 2023.

3. On the possess offence on the s 166 certificate a conviction is recorded with no further penalty.

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Decision last updated: 08 August 2019