R v Leung

[2022] NSWDC 555

District Court

New South Wales

Medium Neutral Citation:

R v Leung [2022] NSWDC 555

Hearing dates:

5-8, 11-14, 19-22, 28-29 April 2022, 9-10 May 2022

Date of orders:

10 May 2022

Decision date:

10 May 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [13] and [17].

Catchwords:

CRIME – SENTENCE – DRUG OFFENCES – Section 166 Certificate – The Defendant already served a term of imprisonment and has dealt with the ongoing prosecution on indictment for several years – The inexpediency of further punishment – Favourable antecedents and personal considerations of the Defendant.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Leung; R v Webster(No. 1) [2022] NSWDC 137

R v Leung; R v Webster (No. 2) [2022] NSWDC 138

R v Leung; R v Webster (No. 3) [2022] NSWDC 139

R v Leung; R v Webster (No. 4) [2022] NSWDC 553

Texts Cited:

Nil.

Category:

Sentence

Parties:

R – Crown
Defendant – Canny Leung

Representation:

Counsel:
Crown – Nightingale, K.
Defendant – Boe, A. with O’Neill, C.
Solicitors:
Crown – Office of the Director of Public Prosecutions
Defendant – Nyman Gibson Miralis Defence Lawyers and Advisors

File Number(s):

2019/276597

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: For further background of this case, see my decisions in R v Leung; R v Webster(No. 1) [2022] NSWDC 137, R v Leung; R v Webster (No. 2) [2022] NSWDC 138, R v Leung; R v Webster (No. 3) [2022] NSWDC 139, and R v Leung; R v Webster (No. 4) [2022] NSWDC 553.

2. On Tuesday 5 April 2022 I commenced a criminal trial by Judge alone. There were two accused, Ms Canny Leung (“the Defendant”) and Mr Cameron Stewart Webster (“the co-accused”).

3. The indictment presented contained eight counts. The first and eighth counts were solely against the co-accused, the second and third counts were solely against the Defendant, the fourth, fifth, sixth and seventh counts were against each of the Defendant and the co-accused. The trial commenced before me on Tuesday 5 April 2022. The trial was completed yesterday, 9 May 2022 when I found the Defendant not guilty of each of the charges contained in the indictment that were referable to her, and I acquitted her of those charges.

A further charge

4. Currently before me is a charge referred to in a s 166 Certificate, that document being MFI 21. The charge is known as sequence 8. The charge is that the Defendant on 4 September 2019 at Birchgrove did have in her possession a prohibited drug, namely cocaine. This morning, the Defendant entered a plea of not guilty to that charge. The charge arises out of the execution by police of a Criminal Organisation Search Warrant at premises known as 22/2-8 Water Street, Birchgrove (“the premises”), an inner western suburb of Sydney. Large amounts of drugs were found in various places within the premises. However the current charge relates to 0.31 grams of cocaine.

5. The drug in question was found in bedroom 1 of the premises. That bedroom was shared by the Defendant and a gentleman known as Hyeon Joon Choi. They were living together in a romantic relationship. They had been living together at this residence for some 18 months. They shared the one bed in bedroom 1 which had an ensuite, which I infer each of the Defendant and Mr Choi used.

6. The relevant drugs are referred to in Agreed Fact 10, contained in a set of Agreed Facts between the Crown and the Defendant which are Exhibit 2 before me. The first relevant parcel of drug is referred to in Agreed Fact 10.2, and the other pieces of drugs are referred to in the following three subparagraphs of Agreed Fact 10. They are these:

“10.2 Two resealable bags containing 0.14g of cocaine (XD700070374)

10.3 Resealable bag containing 0.17g of cocaine (XD700070375)

10.4 Resealable bag containing traces of cocaine (XD700070377)

10.5 Resealable bag with white powder residue (XD700070378)”.

7. The 0.14 grams of cocaine were found in the wardrobe of bedroom 1 on the side that was being used by the accused, inside the pocket of a jacket. The 0.17 grams of cocaine were found in a nail polish box in the bottom of the wardrobe. The traces of cocaine referred to in Agreed Fact 10.4 were found in the wardrobe, on the Defendant’s side thereof, in a tissue in a bag. The residue referred to in Agreed Fact 10.5 was found in the bottom drawer of a bedside table, on the side of the bed occupied by the Defendant, in an envelope.

8. The defence submissions have been reduced to writing, being MFI 22. Mr Boe, on behalf of the Defendant, points out that at the time the parcels of drugs were located, no admission was made by the Defendant of her knowing anything about them. He also points out that there was no direct evidence that she knew that they were there. He also points out that there is no fingerprint or DNA evidence to link the Defendant to the relevant packages of drugs. Learned Counsel also points out that whilst the Court would find that they were located on “her side” of the wardrobe and in a nail polish box, which one might presume belonged to her, and that some of them were found in female clothing, which one might infer belonged to her, that there is no evidence that she put them there or when she last wore the clothing or opened the nail polish box.

9. Learned Counsel also points out, in his fifth point, that there is no evidence that the Defendant was the user of cocaine or, indeed, of any prohibited drug. Finally, he points out that there is evidence that Mr Choi shared bedroom 1 and had obvious unhindered access to where the parcels of drugs were located, and that the Court could infer that he had a significant connection to cocaine. Those points are all valid.

10. However, it must be borne in mind that there were large amounts of drugs found in the premises. For example, there was found in bedroom 1, in a resealable bag, 0.08 grams of cocaine, but that was found in a small resealable bag which was on Mr Choi’s side of the wardrobe. In bedroom 3 were found a total of 209.23 grams of cocaine. In the home office area, in the upper living area of the townhouse, were found 17.98 grams of cocaine, and the inference that I drew from the evidence is that it was highly likely to be under the control or dominion of Mr Choi, who appears to have been the only user of the home office area. Within the kitchen, in four different clip lock plastic boxes, were found a total of 310.1 grams of cocaine. In the laundry were found a number of plastic bags and a number of clip-lock boxes containing a total of 301.3 grams of cocaine.

11. In addition there were found, for example, in bedroom 3, 1364.37 grams of 3,4-methylenedioxymethylamphetamine (“MDMA”), in the home office area 0.44 grams of MDMA were found, and in the laundry 9.26 grams of MDMA were found. In bedroom 3 was also found 27.37 grams of methylamphetamine, in the home office area 0.14 grams of methylamphetamine and in the laundry 758.1 grams of methylamphetamine. Also found in the laundry were 236.26 grams of heroin. I have found neither the co-accused nor the Defendant guilty of possessing any of those drugs for the purpose of supply, or indeed having possession of them in any event. The inference to be drawn is that they were most probably within the power and control of Mr Choi, who has a criminal history related to drugs.

12. The inference which the Defendant asks me to draw is that the drugs found in the accused’s side of the wardrobe, and in her bedside table were secreted there by Mr Choi. That is the only logical inference to draw. However, there were drugs scattered throughout the residence, and it strikes me as completely implausible that Mr Choi would secrete such small amounts of cocaine in clothing, or a bedside table or a nail polish box that were in use by the Defendant when there were large amounts of other illicit drugs found in other places in the premises. Everything points to these small amounts of drugs being within the possession and therefore the control of the current Defendant. It is fanciful, in my view, to speculate that Mr Choi may have secreted the drugs in question the subject of the current charge, where they were found when he could have put them in his own bedside table or in his own wardrobe, or indeed in the home office area, or stashed them in the kitchen or the laundry.

Conviction

13. For those reasons, I find the offence charged in Sequence 8 Court Attendance Notice proved.

Sentence

14. As such, the Defendant stands for sentence as a consequence of my finding an offence that on 4 September 2019, at Birchgrove, she did have in her possession a prohibited drug, namely cocaine. The amount of the drug was 0.31 grams of cocaine. If this matter were in the Local Court of New South Wales, one would expect the maximum penalty imposed by that Court to be a small monetary fine, and perhaps a stern lecture.

15. The Defendant had been arrested by the NSW Police on 4 September 2019 and remained in custody until being granted bail on 11 December 2019. It is agreed that she spent in custody three months and eight days when, in the end result, she ought to have spent no time in custody at all. Prior to committing the offence for which she now stands for sentence, she was a lady of prior good character. I am asked by learned Counsel to apply s 10 of the Crimes (Sentencing Procedure) Act 1999. Under s 10(3), in deciding whether to make an order under s 10, I can have regard to the following factors: the person’s character; antecedents; age; health and mental condition; the trivial nature of the offence; any extenuating circumstances in which the offence was committed, and any other matter that the Court thinks proper to consider.

16. Here she was a lady of prior good character. At the time of the offence she was 38 years old, and she is now 41 years old. The latter half of 2019, the whole of 2020, the whole of 2021, and the first half of 2022, have been taken up by her having to face the consequences of trial on indictment, which she has successfully defended. The period she spent in gaol was far in excess of whatever penalty would be likely to be imposed for the trivial offence which she has committed. I refer to the trivial nature of the offence, not because possession of illicit drugs is trivial, but because the amount found was not any large quantity of the drug. Indeed, the small quantity of the drug is 1 gram, the traffickable quantity of the drug is 3 grams, the indictable quantity is 5 grams, and the commercial quantity is 250 grams. Here we are dealing with 0.31 grams, or less than a third of the small quantity of drug.

17. In the circumstances, I accede to the application that has been made and, because of the offender’s prior good character, and because of the relatively trivial nature of the offending, and because of the imposition that the law has imposed upon her over the period since 4 September 2019, under S.10(1)(a) of the Crimes (Sentencing Procedure) Act1999, without proceeding to a conviction, but having regard to the good character, the trivial nature of the offence and the extenuating circumstances, I am satisfied that it is inexpedient to inflict any punishment. I order that the charge be dismissed.

Decision last updated: 14 November 2022