R v Lee; R v Ooi

[2019] NSWDC 476

District Court

New South Wales

Medium Neutral Citation:

R v Lee; R v Ooi [2019] NSWDC 476

Hearing dates:

26 April 2019

Date of orders:

26 April 2019

Decision date:

26 April 2019

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Lee: A term of imprisonment of 2 years, 3 months with a non-parole period of 18 months: at [22].
Ooi: A term of imprisonment of 18 months with a non-parole period of 13 months: at [22].

Catchwords:

SENTENCING — Aggravating factors — Breach of conditional liberty
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse
SENTENCING — Relevant factors on sentence — Circumstances of offence— Co-offenders — Joint criminal enterprise — Form 1 offences — Parole period
SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

McDowall v R [2019] NSWCCA 29
Parente v R [2017] NWSCCA 284

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

 

John Lee (Offender)

  Huey Ooi (Offender)

Representation:

Ms James (Crown)

 

Ms Towagi (Offender – Lee)

  Mr Scragg (Offender – Ooi)

File Number(s):

2018/163729; 2018/163730

Judgment

1. John Lee, aged 29, and Huey Li Ooi, aged 34, were partners in life and partners in crime and it leads to them both pleading guilty to a charge of supply a prohibited drug on an ongoing basis, under s 25A(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years imprisonment with no standard non‑parole period. This penalty is, of course, a yardstick to be used in the sentencing process, which has to be carried out in accordance with the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999.

2. Ms Ooi is also to be dealt with on Form 1, for an offence of knowingly take part in the supply of a prohibited drug, under s 25(1). That matter will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters.

3. It is common ground that the agreed facts are relevantly the same for both offenders, and they are summarised in a table of drug supplies. In short, a Police strike force was set up in September 2017 to investigate the supply of drugs in the Redfern area. The first of supply occurred on 7 May 2018 and the last on 24 May 2018. There were 11 incidents involved over that time; seven of which involved Lee handing over drugs, four of which involved Ooi handing over drugs, and the first one, which involved Lee handing over the drugs, also involved Ooi providing a phone number, and that is the basis of the Form 1 matter, so it is clearly encompassed in the overall criminal episode.

4. The modus operandi was to sell drugs to a person that they did not know was an authorised person, obviously, working at the behest of the task force. Lee first came to notice when this authorised person went to a laundromat in Waterloo and spoke to Ooi, asking for speed. Lee came out of the rear of the premises, he was asked for 100 of “I”, or ice. Lee went to the back of the premises, returned and supplied a bag for $100, which was analysed and found to contain .15 grams of ice of an 81% purity. As I have said, these episodes continued over the next few weeks, and it is unnecessary to set out the precise amount of the purity, where found, and the amounts involved, suffice it to say that the amounts range from $100 to $750 for the supplies of between .15 grams and up to a maximum of 3.41 grams for $750.

5. The fifth, seventh, eighth and tenth supplies were carried out by Ooi handing over drugs to an authorised person in the laneway in Waterloo. As I have indicated, the balance of the supplies were carried out by Lee.

6. Both of them have been in custody since they were arrested on 24 May. Both of them declined to participate in an interview. Contrary to what was stated in the Crown bundle, it seems that Mr Lee was serving a balance of parole for one month and nine days between 24 May and 2 July 2018, as Ms Tawagi puts on his behalf. The commencement date of imprisonment, which she concedes is mandated in this case, is a discretionary matter and, given the relatively short time, I propose, in the exercise of my discretion, to commence the term of imprisonment on 24 May, the day that he went into custody on this matter. Notwithstanding that he served just over a month as the balance of parole, it being fairly clear, in the absence of evidence to the contrary, that the balance of parole was served only as a result of his arrest on this matter.

7. Both offenders have pleaded guilty at the earliest opportunity and it is common ground that a 25% discount for the utilitarian value of the plea should be allowed.

8. Mr Lee has a criminal record, commencing with assault with intent, being armed with an offensive weapon, dealt with in the Children's Court in 2005, which led to him being on probation. He had a section 9 bond for common assault in 2012, further section 9 bonds in 2016 for goods in custody and failing to appear. He had a fine for custody of a knife in a public place. In the time‑honoured fashion, the non‑chronological criminal records then take us back to 2011, with an offence of assault occasioning actual bodily harm, dealt with by a section 9 bonds, shoplifting in 2012; supply prohibited drug in 2013 leading to a section 12 suspended sentence for a year, which, for some unexplained reason, was converted to a 12‑month term of imprisonment, with a six‑month non‑parole period in 2017, and again varied two months later, in this Court, to 12 months' imprisonment, with two months non‑parole period, on condition that he undergoes drug‑addiction counselling. There was a term of 12 months imprisonment, with six months non‑parole, for assault occasioning and larceny in September 2015, which seems to coincide with the 12 months and two months non‑parole period to which I earlier referred, as finally varied. He has a record which does not entitle him to leniency, as is conceded by Ms Tawagi.

9. There is a lengthy history set out in a report of a psychologist, which was adopted by the offender and subject to challenge by the Crown today, which paints a picture of his significant efforts at rehabilitation and engagement in programs, including breaking the cycle of reoffending, the RUSH program, health survival program, and the Crystal Meth Anonymous program. He has also undertaken some studies at TAFE while he has been in custody.

10. He was born in the inner suburbs of Sydney and raised by his mother primarily until his parents separated, when he was five. He said his mother was aggressive and violent towards him. She stabbed him with a kitchen knife when he was 14 and that led to DOCS becoming involved. He was placed into a youth refuge, where life was, understandably difficult. He was there for about two years, before going back to live with his mother. He has been in a relationship for about three years with his co‑offender. He went to school until the end of year 10, then enrolled at TAFE for a while and then was working casually in the retail industry. He lost his job and he was introduced to the use of ice. He has been in receipt of Centrelink benefits since he was 20 years old.

11. He started using cannabis, MDMA and cocaine during his adolescence and was using up to a gram of ice daily at the time of the offending. He undertook the MERIT program in 2015 for about three months, and then he went to Odyssey House for about six appointments, just before going into custody on these matters. I accept his expressions of remorse and regret about involvement in the ice trade and ice use.

12. He was diagnosed by Mr Borkowski with a major depressive disorder and an amphetamine‑type substance use disorder, and a number of community‑based treatment options are set out which clearly support a finding, as urged by Ms Tawagi, of special circumstances.

13. Ms Ooi did not give evidence. Her subjective case is contained in a report of a psychologist dated 8 March 2019, which was not the subject of any adverse submissions by the Crown Prosecutor. It suggests that she was born in Penang, in Malaysia, her father being a fisherman and her mother a tailor. She came to Australia on a student visa, with the intention of studying English, at the age of 23. She had a poor record at school, from age 13. She worked for about three years as a seamstress in Malaysia and then got involved in the sex industry, working in a brothel, after arriving in Australia. She began to abuse ice at the age of 23 or 24. Her only offence on the record is a possess prohibited drug, dealt with by way of a section 10 bond in 2012, which she says led to a six‑month period of abstinence.

14. She expressed remorse about the offending and an intention to maintain abstinence from illicit substances and obtain legitimate employment. No doubt her time in custody has been a salutary lesson for her. Her mental health functioning is reported as being stable. The psychologist, understandably, recommends formalised treatment on release, in particular, individualised treatment facilitated by an interpreter or a Mandarin‑speaking treatment provider.

15. Ms Tawagi accurately summarises Mr Lee's case as involving someone whose upbringing left him ill‑equipped to deal with the emotional issues in being exposed to the drug culture at an impressionable age. He resorted to the use of ice at age 20 and, at the age of 29, became a user/dealer. The evidence to which I have referred supports the submission that he has reasonable prospects of rehabilitating himself, given the efforts that he has made while on remand.

16. As to objective seriousness, it is clear that there were a total of 11 supplies involving the two in a joint criminal enterprise between 7 and 24 May., Mr Lee was able to source large amounts of methyl-amphetamine, on request, with a high purity. The system was not particularly sophisticated but purchasers were able to readily contact Lee by telephone and then he sourced small amounts, progressing to larger amounts. It is, as the Crown puts, a serious episode of drug‑dealing over a relatively confined time. As the Court has confirmed in recent cases such as McDowall v R [2019] NSWCCA 29, it is unnecessary for the assessment to place the matter in a range or a scale of objective seriousness; it is more important to note the particular factors bearing on the assessment, namely, the role of each offender, along with other matters, such as the quantity of the drug and the purity, and the motive for the conduct. In each case, the motive appears to be feed a habit. It is conceded that, by way of aggravating factors, one must take into account that he was on parole at the time of the offences and his record does not entitle him to leniency.

17. In terms of mitigating factors, I have referred to the pleas of guilty, the expression of remorse, the prospects of rehabilitation and I take into account, to a limited extent, the evidence of social deprivation, which slightly lessens moral culpability and the consequent need for the emphasis of specific deterrence.

18. I take account of the principles in relation to the sentencing for drug suppliers recently reviewed in Parente v R [2017] NWSCCA 284, which point, as Ms Tawagi concedes, to a term of fulltime imprisonment for Mr Lee in this case, but subject to a reduction in the statutory period for special circumstances, for the reasons to which I have referred.

19. Mr Scragg's submissions on behalf of Ms Ooi commenced with the topic of parity and, without contest, he put that the role of his client was significantly less than Lee and that the ultimate sentence should be significantly less, given her level of objective involvement and her subjective case, including the absence of a record, other than the one minor matter to which I have referred. Balanced against that is the caution that has to be exercised in dealing with the history set out in the untested psychological report, but it does seem to be a reasonable basis upon which to proceed.

20. Mr Scragg's ultimate submission is that the matter should be dealt with by way of an intensive corrections order, bearing in mind the period of 11 months and one day that has already been served. It is clear that the objective seriousness of her offending was somewhat less than Mr Lee but they were still part of a joint criminal enterprise involving drug supply over several weeks.

21. The problem with acceding to Mr Scragg's ultimate submission is highlighted at [43] of the psychologist's report tendered in his case, where it is suggested that a formal assessment of the proposed release plan should be undertaken by New South Wales Parole to determine whether her partner and his mother are protective influences or pose ongoing risks to her chance of relapsing to substance abuse and other forms of offending, and she would also benefit from a period of substance‑testing to support her through a period of reintegration, given her tendency to relapse to substances during times of stress. When that was drawn to Mr Scragg's attention, he did not have any submission to the contrary that this should be accommodated by a further period in custody to enable such assessment to be undertaken. Otherwise she would be at risk of being released into the community and, as he put it, setting herself up for failure.

22. In those circumstances, the orders that I will make are that:

John Lee

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of two years and three months, commencing 24 May 2018.

3. I impose a non‑parole period of 18 months, expiring 23 November 2019.

4. I find special circumstances.

5. I make a drug‑destruction order.

Huey Ooi

1. The offender is convicted of the offence.

2. Taking into account the Form 1 offence, I impose a sentence of imprisonment of 18 months, commencing 24 May 2018.

3. I impose a non‑parole period of 13 months, expiring 23 June 2019.

4. I find special circumstances.

5. I make a drug‑destruction order.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 09 September 2019