R v La

[2020] NSWDC 722

District Court

New South Wales

Medium Neutral Citation:

R v La [2020] NSWDC 722

Hearing dates:

28/8/20, 2/10/20

Date of orders:

2/10/20

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Sentenced to an aggregate term of imprisonment of 3 years 3 months with a NPP of 1 year 10 months.

Catchwords:

Crime – Sentence – Supply prohibited drug – Ongoing supply – MDMA - Cocaine

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Category:

Sentence

Parties:

NSW DPP – Crown
Joshua La - Offender

Representation:

Mr N Angelovski for Crown
Mr D Grippi for Offender

File Number(s):

18/186474

Publication restriction:

None

Judgment

1. The offender, Mr Joshua La, is before the Court for sentence in relation to three offences, firstly, the sequence 2 offence, which is supply prohibited drug, 26.68 grams of MDMA. The maximum penalty for that offence is 15 years imprisonment. The second offence is sequence 4, ongoing supply, of 97.9 grams of cocaine and 5.5 grams of MDMA. The maximum penalty for that offence is 20 years imprisonment. In addition, Mr La requests that in sentencing him for that offence I take into account two matters on a Form 1 document, one being knowingly participate in a criminal group, and the other one being possessing 1.7 grams of cocaine. The third offence for sentence is that of supply prohibited drug, namely 28.3 grams of cocaine and the maximum penalty for that offence is 15 years imprisonment. Of course those maximum penalties are guideposts in the sentencing exercise which I must undertake.

2. The offender pleaded guilty at an early stage and is entitled to a discount of 25% on account of the utilitarian value of that plea of guilty.

FACTS

3. The facts of the matters are agreed, and I summarise them in the following terms. Firstly, in relation to the sequence 2 offence, which is that of supplying 26.68 grams of MDMA on 5 May 2018, the offence was detected as a result of a drug seizure at a music festival called "Midnight Mafia" held at Sydney Olympic Park on 5 May 2018. At about 5pm that day police searched a female by the name of Felicia Leong and found that Ms Leong was concealing in her vaginal cavity a package containing 549 capsules of MDMA. An examination of Ms Leong's phone revealed a number of text messages with a person named "Josh", clearly the offender, which related to methods of concealing drugs in order to smuggle them into the music festival. Ms Leong's phone also contained other text message exchanges with the offender, which were in the following terms:

“LEONG: ‘Ok, 850 plus 10 for 350’.

OFFENDER: ‘Yep, ok, 800 plus 10 for 350’.

LEONG: ‘850 plus 10 for 350’.

OFFENDER: ‘Ok’.

LEONG: ‘850 plus 10 for 350’".

4. In addition there was another message between the two of them which read as follows:

“LEONG: ‘Width yeah I have a few mates, if I push 350 is it still $750 or’.

OFFENDER: ‘So 800 for 350 and 10 caps yeah’.

LEONG: Ok 850 plus 10 caps for 350 caps’".

5. It is an agreed fact that in these messages the offender asked Ms Leong to bring 350 capsules of MDMA, also known as Ecstasy, into the musical festival, which were to be passed on to the offender. The total weight of those capsules was 26.68 grams. It is also agreed that the offender would pay Leong $850 and give her ten of the capsules. It follows from the agreed facts that 350 of the 549 capsules seized from Ms Leong were those that she intended to hand to the offender once inside the festival, and which presumably had earlier been supplied to her by the offender.

6. Turning to the sequence 4 offence, being that of the ongoing supply of drugs, namely cocaine and MDMA between 20 May and 15 June 2018. The agreed facts indicate that between those dates the offender engaged in the supply of a total of 97.9 grams of cocaine and the supply of a total quantity of MDMA of about 5.5 grams. Most of the cocaine supplies, in fact 28 of the 30 occasions, involved the offender supplying to various customers quantities of cocaine between about .5 grams and 3.5 grams, although on one occasion he supplied a female named Abby with 20 grams of cocaine.

7. On two occasions, however, the supply was committed when the offender received, for the purposes of supply, 20 grams of cocaine on each occasion from John Nguyen. The acts of supply making up this offence involved the offender supplying cocaine on an almost daily basis over a period slightly in excess of three weeks, although there were a few small gaps of one to three days between some of the supplies. The supplies of MDMA involved a total of 5.5 grams involving 55 capsules over three separate transactions.

8. As I have already mentioned, in sentencing him for the ongoing supply offence the offender asks that I take into account two other offences which have been placed onto a Form 1 document. The first of those offences is an offence of knowingly participate in a criminal group, which carries a maximum penalty of ten years imprisonment. The second offence is one of possessing 1.7 grams of cocaine. The “participate in criminal group” offence occurred between about 20 May and 15 June 2018. In other words, the same dates over which the ongoing supply offence was committed.

9. The agreed facts indicate that between those dates police surveillance identified the offender to be part of a cocaine supply syndicate. Police investigations reveal that the offender would attend the home of John Nguyen and Huy Nguyen where he would be supplied quantities of cocaine which would then be on-supplied to the syndicate's customer base by this offender and by Huy Nguyen. The profits of these sales would then be provided, at least in part, to John Nguyen who was the director of the criminal group.

10. In the course of their investigations police determined that the upline supplier of cocaine to John Nguyen was a man named Jimmy Vilaysack. Police also intercepted a number of telephone conversations between the current offender and John Nguyen, which in summary indicated that the offender would report to Nguyen in relation to sales to the customer base, keeping Mr Nguyen informed about the amounts of money made each night. The intercepted conversations also included discussions of scales and the weighing and preparation of prohibited drugs as well as conversations in which John Nguyen would inform the offender of the contact details of customers and give him instructions as to where to meet them for the purposes of supply. John Nguyen would also restock the offender with more cocaine once his supplies had been depleted or partially depleted.

11. The second offence listed on the Form 1 document is that of possessing 1.7 grams of cocaine. This offence was detected by police when the offender was arrested on 15 June 2018 in a car park in Liverpool shortly after he had purchased 28.3 grams of cocaine from Jimmy Vilaysack. On this occasion the smaller quantity of 1.7 grams of cocaine was found in a resealable plastic bag in the offender's possession.

12. The third offence before the Court for sentence is the supply on 15 June 2018 of 28.3 grams of cocaine. On that date the offender, as I have just mentioned, drove to a car park in Liverpool which shortly afterwards was also attended by Jimmy Vilaysack who was driving a white coloured Audi. Police observed the Audi to park alongside the offender's vehicle after which the offender entered the Audi where he remained for about 20 seconds. Whilst in the Audi the offender spoke with Vilaysack and gave him six and a half thousand dollars in cash in exchange for the 28.3 grams or 1 ounce of cocaine. It was at that point that police arrested the offender and Mr Vilaysack.

13. After his arrest the offender made full admissions to receiving the approximately 28 grams of cocaine from Vilaysack in exchange for $6,500, and that he was knowingly in possession of the 1.7 grams of cocaine found on his person. He also made full admissions to being the sole user of the mobile telephone number which had been used to communicate with Ms Leong, and agreed also that he had attended the Midnight Mafia music festival on 5 May 2018. When asked however about whether he knew Ms Leong, the offender told police that he knew her but claimed not to have seen her in a year. Although he admitted being at the Midnight Mafia music event he denied supplying Ms Leong with the MDMA, although he agreed that no one else would have sent the text messages found on Ms Leong's telephone, to which I have earlier referred. Those are the facts upon which I am required to sentence the offender.

OBJECTIVE SERIOUSNESS

14. It is important that I make an assessment of the objective seriousness of the offences to determine where, on a notional scale of seriousness, they lie when compared with other cases or other theoretical cases.

15. The sequence 2 offence of supplying 350 capsules amounting to just over 26 grams of MDMA to Ms Leong involved an intention to smuggle those drugs into a music festival with the obvious intention that the offender would sell them for a profit.

16. In recent years there has been considerable publicity and public concern relating to overdoses, adverse reactions and deaths associated with the consumption of such drugs at music festivals. The actions of this offender clearly demonstrate that he is one of the persons who was prepared to use the music festival drug market for his own personal profit. Clearly this offence must be regarded as a serious one, given the maximum penalty of 15 years, the quantity of drugs involved, and given that there was some degree of planning involved. The objective seriousness of the offence is also marked by the 15 year maximum that attaches to it. I regard this offence as being around the middle level of objective seriousness.

17. Turning to the sequence 4 offence of ongoing supply. It is clear, first of all, based on the maximum penalty of 20 years imprisonment for this type of offence, that the offence is regarded by Parliament as very serious. But of course I must have regard to the particular facts of this case and make an assessment of where this particular example sits on a notional scale of seriousness. The offence created by s 25A of the Drug Misuse and Trafficking Act 1985 is made out upon proof of three or more separate incidents of supply during a period of 30 days. In the current case the offending involved more than 30 such incidents. Whilst most of the supplies involved relatively small quantities of just under or just over 1 gram of cocaine, on one occasion the offender supplied 20 grams to a female named Abby. There is also the fact that on two occasions the offender received quantities of 20 grams of cocaine from John Nguyen, which I am satisfied were examples of Mr Nguyen effectively topping up the stocks of cocaine held by this offender so that he could continue the ongoing supply business.

18. The total quantity of cocaine supplied in the course of the offence was 97.9 grams, which is fairly substantial, and there is also the fact that a total of 5.5 grams of MDMA was also supplied. I am conscious of the importance of not attaching too much weight to quantities, but this remains a relevant factor, along with the number and frequency of the supply activity, which are all matters I must take into account. As the Crown submitted, the offender was, for the purposes of this offence, a street level dealer, mainly of cocaine, which he would receive from his boss, John Nguyen, and distribute to the established customer base. Having taken into account all of these aspects I assess the objective seriousness of this offence as being at about the middle level of seriousness.

19. The objective seriousness of the third offence of supply prohibited drug, 28.3 grams of cocaine, is marked firstly by the maximum penalty of 15 years that attaches to it. This offence effectively involved the offender meeting with John Nguyen's upline supplier, Mr Vilaysack, for the purposes of obtaining further supplies of cocaine to continue the ongoing supply operation. While quantity is not the only factor to take into account, the quantity was fairly substantial, being more than five times the indictable quantity. There is no doubt that the purpose of this supply was to permit the offender and his boss, John Nguyen, to carry on the profit driven business that was being operated. In my opinion this offence lies also at around the middle range of objective seriousness, or perhaps slightly below that range.

SUBJECTIVE MATTERS   

20. The offender's subjective, that is personal, circumstances have been placed before the Court in part through the psychological report of Tim Watson-Munro, the contents of which were affirmed by the offender in evidence. I note, however that this report is based upon an in-person assessment by the psychologist in December 2019 when he was a resident of a drug rehabilitation facility, and the psychologist notes that he cannot comment upon the offender's progress since that time.

21. The offender is currently 24 years of age and he was born in Australia. Although his parents separated when he was quite young, his childhood upbringing was relatively unremarkable. Although the offender completed year 12, this part of his life was difficult due to problems involving a girlfriend said to have been unfaithful to him and, more significantly, the death of a close friend as a result of the actions of a drink driver. The offender is supported by his fiancée Ms Wrigley, who has been in a relationship with the offender since about late 2019, and who in August 2020 gave birth to a baby girl. Ms Wrigley has a responsible job as a disability support worker, and also has a seven year old child from a previous relationship. She met the offender while he was involved in residential rehabilitation in October 2019 and describes him as an honest and good natured person who is very family oriented. She says the offender has expressed to her that drugs have no business in our community and that when in custody he witnessed first hand some of the adverse effects.

22. She says that she has noticed a significant change in the offender since his recent possession charges, to which I will refer in a moment, and believes that he now knows how much hurt he has caused to his family by his drug offending. Ms Wrigley confirms that the offender, after completing his six months rehabilitation, commenced work as a roofer and more recently has started his own business doing subcontract work for a roofing company. The offender's case is also supported by a letter from the director of Niagara Lodge, the facility on the Central Coast where the offender engaged in a drug rehabilitation program for nine months from March 2019.

23. The director, Mr Shepherd, stated in his letter of December 2019 that the offender had made major changes in attitude and had confronted his addiction, and that workers were very pleased with his progress. Mr Shepherd asserts that the offender is a positive example of what happens when a man sees the error his life has taken and embraces a new and positive lifestyle. He stated further in his letter of December 2019 that the offender is a good example of what rehabilitation can be. Regrettably those opinions must now be put into the context of more recent events, to which I will refer later in these remarks.

24. The offender has a reasonably longstanding drug habit, having commenced using cannabis at about age 14 and cocaine from about age 15. He reported an escalation in his drug use from about 2017 when at times he was using up to 4 grams of cocaine per day as well as various other drugs. The offender has a prior history of drug offending. On 14 October 2015 he was arrested at another dance party called "Genesis Black" which was being held at the Hordern Pavilion in Sydney. On that occasion the offender was found to be in possession of 13 capsules containing a total of 1.13 grams of MDMA of 75.5% purity. However, the offender also made frank admissions to police at that time that he had already supplied earlier that night 20 capsules to a group of friends, and sold a further 40 capsules to another group of people for $25 per capsule. He was also found to be in possession of $2,150 cash.

25. After pleading guilty to an offence of supply prohibited drug, the offender was on 19 September 2016 sentenced by a judge of this Court to a term of imprisonment of 18 months to be served by means of an Intensive Correction Order. That order expired on 18 March 2018, which was about seven weeks before the course of offending which brings him before the Court today. It is relevant to note that, for the purposes of his sentencing in September 2016, the offender provided a letter of apology to the Court in which he expressed deep remorse and told the Court that he had learned a valuable lesson and would definitely not be reoffending. Regrettably the offences before the Court today tell a different story.

26. A Sentencing Assessment Report placed before the Court indicates that the offender is a low risk of reoffending. However, that report was prepared in early April 2020 and now needs to be considered in light of the fact that on 24 April 2020, and while on bail on the current charges, the offender was charged with another drug related offence. He is presently awaiting sentence in the Local Court after entering a plea of guilty to that offence.

27. The offender gave evidence on sentence in which he indicated that he had, around the time of the various offences that are before the Court today been subject to a considerable drug habit and that he was also in a situation where he was in debt. He indicated in his evidence on sentence that part of his motivation for being involved in these offences was so as to repay that debt. I accept that the offender did have at the relevant time a drug habit. However, of course, this does not mitigate his offending behaviour, although I accept that it does provide some context. It is not however an excuse in any form whatsoever, nor is the claim by the offender that he had a debt to repay.

REMORSE/FUTURE RISK

28. There have been expressions of remorse made by the offender including to the psychologist, to the author of the Sentencing Assessment Report, and also in his evidence in this Court. However it is difficult to place much weight on these claims of remorse because the offender has a history of saying similar things, but then going on to commit yet more offences of the same kind. Given his history, I am of the view that any feelings of genuine remorse are minimal. In terms of his future risk of offending, the offender relies in part on some changes in his life circumstances that are of fairly recent origin. Most significant among these is, first, that he now has a full time job. Secondly, that he has moved out of the Sydney metropolitan area where his previous offences were committed. Thirdly, that he apparently is in a good relationship and has a new baby. These are all positive changes that do provide some support for the conclusion that he will not offend in the future.

29. However, I must balance this evidence against the fact that the offender has previously vowed not to reoffend, and has previously taken significant positive steps towards rehabilitation, the most significant being his lengthy period of residential rehabilitation. Yet despite these matters he reoffended within about a month of being granted bail for these matters by committing yet another drug offence. There is also the fact that he has already spent over eight months in prison, bail refused on these offences, and claims to have learnt lessons from this. Taking all these matters into account, as well as the rest of the evidence, I conclude that, while there are some prospects that he will not reoffend, I cannot be confident about that matter. His prospects of avoiding future offences are best described as, in my view, uncertain.

IMPACT ON FAMILY

30. There is evidence in this case that the offender's partner has very recently given birth to a baby and also has another child who the offender relates to as a stepson. In this regard I accept that a sentence of full time imprisonment is likely to impact adversely on each of them, and is likely to involve significant hardship to them. However, imprisonment almost always has such an effect on family members and, as the Courts have said many times, it is only where that hardship is exceptional that it can be taken into account so as to reduce an otherwise appropriate sentence. It has not been argued in this case that any hardship to others falls into the category of exceptional circumstances. Hardship to the offender's family, however, is a matter that I have taken into account as part of the general mix of circumstances in determining the appropriate sentence.

DELAY

31. As the offender was arrested more than two years ago, there has been some delay, during which he has had these matters hanging over his head. There is also the fact that since being released on bail on 7 March 2019 he has been subject to reasonably strict bail conditions. I have taken each of these matters into account in his favour, although they are not matters that can reduce the appropriate penalty to any significant degree.

PARITY

32. An important part of this sentencing exercise is the issue of parity. In other words, that I must take into account in sentencing this offender the penalties imposed on others for relevantly related offences. It is important that I do my best to avoid unfairness or the appearance of unfairness. As is usually said, the penalty imposed on this offender should not be such that when compared with sentences imposed on co-offenders it might create a "justifiable sense of grievance" by being out of step with those other sentences. However, in taking into account what has been done in other cases, I must have regard not only to any similarities but also any differences.

33. To my knowledge there are four others who have been sentenced in relation to offences associated to some degree with the current offender's matters. Mr Huy Nguyen, who was another of John Nguyen's drug runners, was sentenced in the Local Court to a 12 month Community Correction Order for an offence of participate in a criminal group. Ms Leong was sentenced by Judge Bennett SC on 19 July 2019 for an offence of supply prohibited drug to a term of one year ten months to be served in the community by Intensive Correction Order. Jimmy Vilaysack was sentenced by Judge Woodburne SC for two offences of supply to a period of two years nine months, to be served by Intensive Correction Order in the community. John Nguyen was sentenced by myself to a full time term of three years, with a non-parole period of one year nine months for his offence of ongoing supply, although with an offence of direct criminal group taken into account on a Form 1 document.

34. Of these various sentences I consider that the penalties imposed on Ms Leong, Mr Vilaysack and John Nguyen are of relevance for parity purposes, and I have taken them into account to the extent that they share similarities, but having regard also to relevant differences. Of these sentences it seems to me that the sentence imposed on John Nguyen is of most relevance given the close involvement between Mr Nguyen and the current offender, who acted as one of Mr Nguyen's runners and street dealers. The offence for which Mr Nguyen was sentenced was the same type of offence, which is the sequence 4 offence of ongoing supply for which this offender is to be sentenced. Also, the facts on which Mr Nguyen's offence was based were fairly similar, and extended over the same period of time except that in Mr Nguyen's case the total quantity of cocaine was slightly less than in Mr La's case, and Mr La's offence additionally includes the supply of 5.5 grams of MDMA.

35. While factually there is little to distinguish the offences, there are some important differences in relation to each offender's role, and in relation to their subjective circumstances. Most important is the fact that Mr Nguyen was the principal and effectively in charge of the criminal group in which this offender was a runner and street dealer. Mr Nguyen therefore had a significantly more senior role. On the other hand, Mr Nguyen had no criminal history and was being sentenced for only the one offence, whereas this offender has a prior drug conviction and is also to be sentenced for two additional offences. While this offender's role in the ongoing supply was at a lower level in the hierarchy, he does not have the benefit of a clean prior history like Mr Nguyen did. Furthermore, this offender's role was a crucial one in the operation of the drug business being conducted by Mr Nguyen.

36. The sentence to be imposed on this offender for the ongoing supply offence should reflect all of these matters, and in particular his more junior role when compared with Mr Nguyen. The sentence must also take into account the two matters on the Form 1 document, and the need for personal deterrence and retribution. This should be reflected by some increase in the indicative sentence and the overall aggregate sentence that I impose on this offender. However, any increase on account of those factors need not be large, in my opinion, given the considerable overlap involved in the "participate in criminal group" offence, and given that the possession offence on the Form 1 involved a relatively small quantity which I am satisfied was likely for personal use.

37. The sentence imposed on Mr Vilaysack, and more particularly the indicative sentence of one year nine months for the supply of 28.3 grams of cocaine, is also of relevance for parity purposes, given that it involved the same cocaine which was received by this offender, Mr La, from Mr Vilaysack for the purposes of supply on 15 June 2018. The sentence imposed by Judge Bennett SC on Ms Leong is also of some relevance given that it related to a quantity of drugs, most of which she was attempting to smuggle into the Midnight Mafia festival on behalf of this offender. As to the penalty imposed on Mr Huy Nguyen, another runner for Mr John Nguyen, I do not regard this as of real relevance for parity purposes, given that it was dealt with summarily in the Local Court. Neither party in their submissions treated this sentence as relevant to parity considerations.

CORONAVIRUS RESTRICTIONS

38. I have taken into account also the fact that any sentence that I impose will be served during the current Coronavirus pandemic with the added restrictions that this involves, and in particular the restrictions on family contact.

DETERMINATION

39. I am satisfied that a term of full time custody is required in this case. In reaching that conclusion I have had regard to the purposes of sentencing and s 3A of the Crimes (Sentencing Procedure) Act 1999. Of particular relevance in this case is the need for personal and general deterrence, given the prevalence of these types of offence and given the offender's history.

40. I intend to impose an aggregate sentence. Had I not done so, then the indicative sentences that I would have imposed are as follows. For the sequence 2 offence of supply, a term of imprisonment of two years. For the sequence 4 offence of ongoing supply, taking into account the matters on the Form 1 document, an indicative sentence of two years four months. For the sequence 7 offence of supply, an indicative sentence of one year three months.

41. I make a finding of special circumstances based on this being the offender's first period in custody, and for the need for a lengthy period of supervision upon his release to parole.

42. I have had regard to the principle of totality and in particular the fact that, in my view, there is a considerable level of overlap between the offence in sequence 4 and the offence in sequence 7, given that, in my view, the sequence 7 offence was carried out by this offender on behalf of Mr John Nguyen, and was really a part of the ongoing supply activity.

43. Therefore, in my view, any sentences imposed for those two matters, that is sequence 4 and sequence 7, should be concurrent to a considerable degree. However, the sequence 2 offence of supply, that involving the Midnight Mafia event, stands alone as a discrete piece of offending and requires some degree of accumulation.

44. In setting the ultimate sentence of course I have had regard, as I have said, to the principle of totality and the need to avoid setting a sentence that might be described as crushing on the offender.

45. The offender is convicted. I impose an aggregate term of three years three months and a non-parole period of one year ten months. Those will date from 10 January 2020, giving the offender the benefit of the period of time that has already been served. The head sentence will expire on 9 April 2023 and the non-parole period on 9 November 2021.

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Decision last updated: 23 November 2020