R v Ly

[2024] NSWDC 99

District Court

New South Wales

Medium Neutral Citation:

R v Ly [2024] NSWDC 99

Hearing dates:

27 March 2024

Date of orders:

5 April 2024

Decision date:

05 April 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

The offender is sentenced to a term of imprisonment consisting of a head sentence of 4 years and 1 month with a non-parole period of 2 years.

Catchwords:

CRIMINAL LAW – Sentence – Attempt to possess commercial quantity of border-controlled drug – Commonwealth offence – Offender drug addict – Good prospects of rehabilitation – Recommend as to the treatment plan when on parole – Longer period than usual on parole

Legislation Cited:

Crimes Act 1914 (Cth),

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Lauritsen v The Queen [2000] WASCA 203; (2000) 114 A Crim R 333

R v Engert (1995) 84 A Crim R 67

R v Israil [2002] NSWCCA 255

R v Jiminez [1999] NSWCCA 7

R v Letteri (unreported, NSWCCA, 18 March 1992)

R v Pearce (unreported, NSWCCA, 1 November 1996)

R v Pearson [2004] NSWCCA 129

R v Hemsley [2004] NSWCCA 228

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

R v Nguyen; R v Pham [2010] NSWCCA 238

R vTodorovic [2008] NSWCCA 49

R vTran [2013] NSWCCA 136

R v Tsiaras [1996] 1 VR 398

The Queen v Pham [2015] HCA 39; (2015) 90 ALJR 13

Totaan v The Queen [2022] NSWCCA 75

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category:

Sentence

Parties:

Rex (Crown)
Johnny Paul Ly (Offender)

Representation:

Counsel:
J Inan, Solicitor Advocate (Crown)
B Eurell (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s):

2022/374925

Judgment

1. Johnny Paul Ly (the offender) who is 36 years of age is to be sentenced for the following offence:

Seq	Offence Provision	Description	Date	Maximum Penalty
5	ss11.1(1) and 307.5(1) Criminal Code (Cth)	Attempt to possess commercial quantity of border controlled drug 5.021kg pure heroin	12 December 2022	Life imprisonment and/or 7,500 Penalty Units

2. The offender is also to be sentenced for the following matters on a s 166 Certificate:

Seq	Offence Provision	Description	Date	Maximum Penalty
3	s10(1) Drug Misuse and Trafficking Act 1985 (NSW)	Possess prohibited drug 5.7g 1,4 butanediol	13 December 2022	2 years imprisonment and/or 20 penalty units
4	s10(1) Drug Misuse and Trafficking Act 1985 (NSW)	Possess prohibited drug 2.15g of methylamphetamine	13 December 2022	2 years imprisonment and/or 20 penalty units

Time in Custody

3. The offender has been in custody since his arrest on 12 December 2022. It is appropriate to backdate the sentence to that date: (s 16E(2)).

Approach to Sentencing

4. For Commonwealth offences, the Court is required to sentence in accordance with Part 1B of the Crimes Act 1914 (Cth), including taking into account the matters listed in s 16A(2) that are relevant and known to the Court. The Court cannot impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all of the circumstances (s 17A).

5. For State offences, the Court must have regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) and any relevant aggravating or mitigating factors provided for in ss 21A(2) and (3). Like s 17A of the Commonwealth Act, s 5 CSPA requires the Court to be satisfied that no other sentence but imprisonment is appropriate before such a sentence is imposed.

The Crown Submissions

Section 17A/Section 5 Thresholds

6. It is common ground between the parties, and I accept that the only appropriate sentence for sequence five is a term of full-time imprisonment. For the s 166 matters the s 5 CSPA threshold is not suggested to be crossed, and I do not find it is crossed for the sequences three and four offences, the Crown accepts they are minor possession offences.

Parole/Recognisance

7. The offender has a long history of drug addiction. The main area of debate between the parties before me was whether or not, I should impose a sentence involving a Recognisance Release Order on conditions which would include that the offender abide with the treatment plan recommended by Dr Gerald Chew in his report of 20 March 2024 at [33] (see page 9, Exhibit B).

8. There is no issue between the parties, and I accept, that upon his release from custody, the offender and the community would be much better off, in the sense of maintaining a drug-free status, if he was the subject of, and complied with, such a treatment plan.

9. However, that option is only open to me if the term of imprisonment imposed is equal to or less than three years: s 19AC Crimes Act 1914.

10. If the head sentence is more than three years, I cannot impose a Recognisance Release Order instead I must fix a non-parole period unless I provide reasons as to why I do not do so: s 19 AB.

11. There is no suggestion that I should not impose a non-parole period. Indeed, it is accepted that a more than longer than usual period on parole would be beneficial to the offender. The issue is whether the appropriate head sentence ought be less than three years. If it is, I would have no hesitation in ordering a release at some point on the proposed conditions pursuant to a Recognisance Release Order.

12. I have, however, been very careful not to employ “backwards reasoning” starting from my assessment that a Recognisance Release Order on such conditions would be more beneficial to the offender then a period on parole and then using that conclusion as a reason to conclude that an appropriate head sentence is three years or less.

13. Having carefully and anxiously considered the submissions put on behalf of the offender I have concluded that the head sentence must be more than three years and, accordingly, the option of a period under controlled supervision is not available to me. I will however make a recommendation at the end of these reasons that upon the offender’s release to parole which period will be longer than usual, that the relevant authorities consider the treatment plan recommended by Dr Chew.

The Facts

14. There has been tendered a detailed statement of agreed facts.

15. In summary the salient facts are as follows:

1. On 28 November 2022 a package with a tracking number was sent via post to an address in Ashfield. The package was intercepted by the Australian border force officers X-rayed and seen to contain 28 fabric bags containing white powder, later identified as heroine.

2. The Australian Federal Police took control of the package and conducted a control delivery to the Ashfield address where it was not accepted. It was instead returned to the post office.

3. Thereafter two men, one of whom was the offender picked up the package from the post office.

4. The offender and the other man were arrested. Under caution, the offender said that he was just helping his friend collect a parcel from the post office.

5. The offender’s home was then searched and the drugs the subject of the s 166 certificates were found in his premises together with numerous satchel bags and a wallet containing $300 cash which were located in the offender’s home.

6. Further investigations by the Australian Federal Police revealed that the offender was acting on the direction of unknown others.

7. The Crown accepts that the offender was reckless as to the consignment containing the border control drug.

8. The Crown further accepts that it cannot establish beyond reasonable doubt that the offender had any knowledge in relation to the weight of the border control drug.

9. The offender has made clear that agreement to these facts only represents an admission by him as to his own conduct and does not represent an assertion as to the conduct of any other accused person or the identity of any other accused person.

Sentencing for Federal Drug Offences

16. The NSW Court of Criminal Appeal in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] summarised the following relevant principles that apply to the sentencing of serious Federal drug offenders for importation and possession of border controlled drug offences:

1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation.

2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.

3. It is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.

4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.

5. The statements by the High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.

6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.

7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.

8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

9. Involvement in any level of a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.

10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.

11. Where offenders are not young the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.

12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offenders degree of involvement in a drug smuggling enterprise.

13. Offences of attempting to possess imported drugs are, not for that reason, in a less serious category than that of importing the drugs.

Section 16A Factors

Nature and Circumstance of the Offence: s 16A(2)(a) Crimes Act

17. The Crown submits the offender’s role as demonstrated by the Agreed Facts can be characterised as that as a “courier” or “collector”. The offender accepts that characterisation. The Crown accepts that the offender was operating under the direction of others. I agree. On any view he was low down in the hierarchy of those involved.

18. The nature and circumstances of the offence also include the important subjective factors which are that the offender who does have a history of drug addiction and use had experienced a breakdown in his marriage which led him to recommence using drugs which led him to the offending.

19. The offending was in a sense for the purpose of the offender obtaining financial reward. That financial reward or profit was only in the sense of obtaining money so that he could buy drugs himself.

20. This is not an excuse for his offending but is an explanation and does go to an assessment of his moral culpability and also, importantly, to his prospects of rehabilitation and reoffending.

Role of the Offender

21. The Crown submits the offender played a crucial part in the attempt to possess the substance once it had come into Australia.

22. Having regard to the limitations that sometimes apply to such descriptions, I think that the offender’s role can be properly described as a collector.

23. The offender attended the post office to collect the consignment with a co-accused. During the collection, the post office worker asked for identification as the person authorised to collect the parcel on the collection form. During the exchange at the post office the offender was in constant communication with a third person (Speedracer) on Signal (a messaging app). During those communications, he asked whether he should “can” it (that is, leave) and also told Speedracer to tell “Mia” (presumably his partner) to pretend to be the consignee if the post office staff called and that she could not make it to the post office because she was at the doctors.

24. Finally, the Crown accepts he was reckless as to the consignment containing a border-controlled drug, and as to the quantity involved.

Nature and Quality of the Drugs

25. In The Queen v Pham [2015] HCA 39; (2015) 90 ALJR 13, the High Court emphasised that drug weight will not automatically be the “controlling” factor relevant to assessment of the seriousness of an offence of this type but held that it will usually be relevant. In this case, where there is little evidence before the Court as to the extent of any organisation behind the importation and little to distinguish it from other cases, it is a highly relevant factor.

26. The commercial quantity threshold for heroin is 1.5kg (pure). The offender attempted to possess 5.021kg (pure) of heroin, which is just over 3 times the commercial quantity threshold. However, as I have said, there is no evidence the offender knew the exact weight of the consignment.

Financial Incentive

27. Matters of motivation may bear upon an offender’s moral culpability for an offence and are relevant in assessing the objective seriousness of the offending. In this case, the evidence establishes that there was a promise of some financial reward for the collection of the consignment. However, as I have said that financial gain was not for any other purpose than to allow the offender the ability to buy drugs for himself. It was not for the purpose of him building wealth.

Maximum Penalty / Need to Ensure Adequate Punishment: ss 16A(1) and 16A(2)(k)

28. Section 16A(2)(k) requires that the Court should ensure the person is adequately punished for the offence.

29. The offence for which the offender is to be sentenced has a maximum penalty of life imprisonment. Involvement in the drug trade is a serious matter which must be condemned. The maximum penalty serves as a yardstick for the appropriate sentence and must be balanced against all other factors. It is clear from the maximum penalty that Parliament considers matters relating to the attempted possession of illicit border-controlled drugs as very serious. I must take that into account when determining an appropriate sentence.

General and Specific Deterrence: ss 16A(2)(j), (ja) and (n)

30. The principles of general deterrence and denunciation are important considerations in this matter. However, s 16A does not fetter the sentencing discretion by creating any hierarchy of matters to be considered so as to result in one or more factors being described as “pre-eminent”: see Totaan v The Queen [2022] NSWCCA 75.

31. At the time the offender committed the extant offences, he had an addiction to methylamphetamine and heroin. The evidence supports a finding that the offender developed an addiction to drugs from a young age, and that his offending has been motivated by a need to feed that addiction to fund his drug habit and Stimulant and Opioid Use Disorders. That finding is supported by the offender’s criminal antecedents and the s 166 matters.

32. In R v Hemsley [2004] NSWCCA 228 at [33]-[36], Sperling J (Grove and Dowd JJ agreeing) expressed the various ways an offender’s mental health condition can impact on sentence, including:

1. the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and punishment warranted may accordingly be reduced: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254]; R v Jiminez [1999] NSWCCA 7 at [23]; R vTsiaras [1996] 1 VR 398 at 400; Lauritsen v The Queen [2000] WASCA 203; (2000) 114 A Crim R 333 at [51]; R v Israil [2002] NSWCCA 255 at [23]; R v Pearson [2004] NSWCCA 129 at [43]; and

2. mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: R v Pearce (NSWCCA, 1 November 1996, unreported); R vEngert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Letteri (unreported, NSWCCA, 18 March 1992); Israil at [22]; Pearson at [42].

33. While the commission of a crime due to, and in order to sate, a drug addiction is ordinarily not a mitigating factor: Henry, per Spigelman CJ at [177], [197] – [202]; Wood CJ at CL at [257]; the CCA recognises that addiction to drugs should be regarded as a mitigating factor where, for example the addiction was the result of youth. The rationale behind that approach is that the initial decision to consume drugs and thereby develop an addiction in their youth do not commence form a position of voluntariness and free choice. Wood CJ at CL held that the moral and legal fault for the acquisition of the addiction can properly be considered, for example where the offender becomes addicted at an age when the “degree of judgment” open to him or her is limited. That positions was affirmed in R vTodorovic [2008] NSWCCA 49 by Hulme J at [58].

34. The offender’s history of mental health and drug addiction are also relevant to the consideration of the non-parole period, I will deal with that later.

Contrition and Remorse

35. The Court must take into account the fact that a Federal offender has entered a guilty plea, as well as the timing of the plea and whether it was entered at the first reasonable opportunity and the degree to which these factors resulted in any benefit to the community, or witness to, the offence. Unlike the State legislation there is no mandated percentage of discount.

36. The Court must consider the utilitarian benefit of a plea of guilty. The plea may also be relevant on a subjective basis in considering remorse and contrition.

37. The offender was arrested on 12 December 2022 and entered a plea of guilty to offences in the Local Court prior to the matter being committed to this Court. The Crown acknowledges that the plea was entered at the first reasonable opportunity and thereby avoided the cost and delay of a trial. The offender would be entitled to a 25% discount on sentence for the utilitarian value of that plea under the state regime. I can see no reason why the same should apply here.

38. The offender has expressed some insight and remorse in the sentencing assessment report and his letter of apology.

39. I accept that the offender is contrite and remorseful as to his offending. I also accept that he has shown real insight into the cause of his offending, which is his drug addiction, which he accepts, is something that he can relapse into when he experiences emotionally disruptive events in his life. He does seem determined to try and overcome this issue. That of course does not mean that he will succeed but I am satisfied that he has shown a real determination to succeed, which bodes well for his prospects of rehabilitation.

Offender’s Character Antecedents, Age, Means and Physical or Mental Condition: s 16A(2)(m)

40. The offender was 34 years of age at the time of offending and is now 36. He has prior convictions for drug supply, proceeds of crime, drunk driving, robbery and drug possession.

41. His custodial history provided under subpoena shows that, whilst in custody for these offences, the offender failed a drug test (21 April 2023) and had been caught with drugs twice (11 December and 29 December 2023). He has also been punished for stealing (31 January 2024). This is in contrast to his letter of apology, which states he has been clean and sober for over a year.

42. It is to his credit and demonstrates a degree of commitment to rehabilitation that the offender has, whilst in custody, completed the Positive Lifestyle program, participated in nine sessions of the Remand Addictions Program and is eligible to receive a Statement of Attainment in Fitness.

43. Dr Chew diagnoses the offender with stimulant use disorder, opioid use disorder and gambling disorder.

Prospects of Rehabilitation: s 16A(2)(n)

44. The Crown has submitted that the Court should be sceptical when assessing the offender’s prospects of rehabilitation. The Crown puts it this way:

1. If the offender can demonstrate steps taken towards rehabilitation, that should be taken into account at sentence as one amongst a number of important sentencing considerations.

2. In this case, the Court may have some difficulty assessing his prospects of rehabilitation. It is noted that the offender committed these offences seven months after the end of an 18‑month Intensive Correction Order for drug supply offences and that he has continued to use drugs while in custody (Dr Chew’s report at [11]). This does not bode well for his prospects of rehabilitation.

3. It is noted that the Offender has taken some positive steps towards dealing with his drug addictions, indicating a desire to commence Buvidal treatment, which from the subpoenaed material appears to have been requested in June and October 2023.

45. On the other hand the offender has submitted that whilst at first glance the offender might seem to have guarded prospects of rehabilitation, that optimism is warranted given his evident engagement with Justice Health whilst on remand, the opinions and treatment program proposed by Dr Chew, his history of positive engagement with Community Corrections, and the fact that the Community Corrections in the sentencing assessment report that is before me, has assessed the offender's risk of reoffending as “low”.

46. I accept the offender’s submission in this regard.

47. In my judgment, there are reasonably good prospects that the offender will attain a drug free status and in those circumstances, I think it is unlikely that he will reoffend.

Comparative Cases

48. Both the Crown and the offender have provided a series of cases described as “comparative”. The problem, it seems to me with these types of offences, which carry at the top end of the scale, a maximum penalty of life imprisonment, is that there is an extraordinarily broad range of facts which qualify as offending conduct. The consequence of that is that there is an extremely broad range of penalties available. It is trite to observe that each case stands for no more than its own facts and it is difficult to identify cases that are truly comparable.

49. The parties agree that the case of R vTran [2013] NSWCCA 136 is close to this one, although in that case the offender does appear to have been motivated by a true desire to obtain money (which is worse than the case before me) but on the other hand had no prior criminal history (which is better than the case before me). In the case of Tran, the offending does seem to have been the consequence of a cocaine dependence which occurred after some life crises and there was a finding of good prospects of rehabilitation.

50. In that case, there was a head sentence of four years and six months with a non-parole period of two years and nine months.

51. I have taken that case into account and considered all the cases to which I have referred.

Disposition

52. The offence is serious. General deterrence must loom large in my consideration. It is extremely important that the community understands that offending of this type will not pass without serious punishment.

53. In relation to the offender, I think specific deterrence has a part to play. I also think that the offender's conduct was very much towards the lower range of offences of this type and I do think his moral culpability must be seen to be significantly reduced because of his drug dependence. I have taken into account my assessment that the offender has good prospects of rehabilitation and therefore a correspondingly low chance of reoffending.

54. Doing the best I can, taking all the matters I have mentioned into account, I have concluded that an appropriate starting point for a head sentence is five years and six months.

55. As I have said I can see no reason why the 25% statutory discount applicable to State offences ought not apply so as to reduce that head sentence.

56. This takes me to a head sentence of four years and one month (with rounding in favour of the offender).

57. I do intend to impose a much longer parole period than what might be considered usual. I would find special circumstances if I was required to as under the State regime.

58. I have decided, in all the circumstances, but most importantly, that the offender has a lengthy period of supervised treatment on parole, that the minimum non-parole period ought be two years or 24 months.

Orders

59. Taking into account the guilty plea to the Commonwealth offence, I order a term of imprisonment of four years and one month to commence on 12 December 2022 and to expire on 11 January 2027.

60. I impose a minimum non-parole period of two years commencing from 12 December 2022 and expiring on 11 December 2024 which will be the first day the offender is eligible for parole.

61. I recommend that these reasons and the report of Dr Chew setting out his treatment plan which is part of Exhibit B be provided to the relevant parole authorities and I recommend that when on parole the offender be required to undertake that or a similar plan of treatment.

62. In relation to the s 166 matters, in each case I impose a s 10A conviction but impose no further penalty.

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Decision last updated: 05 April 2024