R v MA

[2022] NSWDC 297

District Court

New South Wales

Medium Neutral Citation:	R v Ma [2022] NSWDC 297
Hearing dates:	12 July 2022, 5 August 2022
Decision date:	05 August 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 6 years with a non-parole period of 4 years.
Catchwords:	CRIME - SENTENCE - manufacture a prohibited drug in an amount not less than the large commercial quantity - dealing with the proceeds of crime
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW) s.24(2); Crimes Act 1900 (NSW) s.193C(1)
Category:	Sentence
Parties:	Regina (Crown) Paul Julitino Ma (Offender)
Representation:	Ms Anderson (Solicitor ODPP Parramatta) Mr Godkin (Counsel for Offender)
File Number(s):	2021/232613
Publication restriction:	Nil

1. Paul Julitino Ma, you appear for sentence in relation to one principal offence, namely manufacturing a prohibited drug in an amount not less than the large commercial quantity applicable to that prohibited drug.

2. This offence involves a contravention of s24(2) of the Drug Misuse and Trafficking Act. The maximum penalty for the offence is life imprisonment. There is a standard non-parole period of 15 years imprisonment.

3. In fixing the sentence for that offence, you have asked the Court to take into account one matter on a Form 1 which I have certified, that being dealing with certain property (namely $199,675.00) in circumstances where there were reasonable grounds to suspect that those funds were the proceeds of crime.

4. The facts surrounding the principal offence and the matter on the Form 1 are, to a large extent, contained in an agreed statement of facts.

5. However, in relevant respects, those agreed facts were supplemented by your oral evidence which was given on 12 July 2022.

6. The agreed facts may be summarised as follows.

7. As at 15 August 2021, you were the tenant of a two-bedroom residential home unit in the Sydney suburb of Guildford.

8. Late in the evening of 14 August or early in the morning of 15 August 2021, a fire broke out in that home unit and, as a consequence, police were called to the premises.

9. When the police inspected the premises, they found significant quantities of a substance which they believed (correctly) to be prohibited drugs - along with equipment consistent with the manufacturing of prohibited drugs. In this context, manufacturing includes purifying or refining the drug.

10. In the following rooms in the home unit, the following was found.

11. In the second bedroom, and in a glass baking dish, a white crystalised substance was found. That substance was 607.0 grams of methylamphetamine which had a purity of 79.5 per cent.

12. On the balcony of the home unit, two further baking dishes were found. Each dish contained a moist crystalline solid. In the first dish, that solid was subsequently determined to be 52.3 grams of methylamphetamine with a purity of 50 per cent; in the second dish, the solid was determined to be 8.9 grams of methylamphetamine with a purity of 44 per cent.

13. In the kitchen, the police found a baking dish which contained both liquid and crystalline material. The crystalline material was subsequently determined to be 238.1 grams of methylamphetamine with a purity of 81.5 per cent; and the liquid was determined to be 361 grams of methylamphetamine with a purity of 44 per cent.

14. These significant quantities of methylamphetamine (which together constitute the principal offence) were not the only items of interest found by the police.

15. In your bedroom:

1. $189,250.00 was found in a safe in a cupboard;

2. $2,155.00 was found next to your wallet; and

3. $8,270.00 was found in the bed headboard.

The total amount of cash found was $199,675.00. It is this money which is the subject of the matter on the Form 1.

16. It is noted in the agreed facts that the methylamphetamine found by police was manufactured at the premises by a process of refinement called recrystallisation. This process was described in those facts as:

“... where an impure sample is dissolved in a minimum amount of an appropriate solvent with heating. The solution is then allowed to cool, where the compound being purified will crystalise and the impurities remain dissolved in the solvent. A common solvent used for the recrystallisation of methylamphetamine is water and acetone. The process will result in a solid containing higher purity methylamphetamine and a liquid containing a lower purity methylamphetamine.…”

17. What I have said so far is drawn from the agreed statement of facts.

18. However, in your oral evidence, you gave the following evidence.

19. As at May 2021, you were in debt to your own drug dealers in the amount of approximately $73,000.00. In order to work off that debt, you agreed to help manufacture methylamphetamine by engaging in that purification process. You said that your drug suppliers provided you with the methylamphetamine on four or five occasions (of which the drugs in the unit on 15 August was necessarily the last) and that, when you had completed the recrystallisation process, you returned the entire amount to them (except for a small amount which you took to support your own drug habit).

20. You said that, in relation to each of the four or five drop-offs, you were notionally paid $2,500.00 - $2,000.00 of which was applied by those dealers to the reduction of your debt and $500.00 of which you kept for yourself.

21. Insofar as the cash that was found on the premises was concerned, you said that the amount of $189,250.00, which was found in the safe, had been “dropped off” to you by your drug suppliers for you to store and which you were subsequently to drop off to someone else – however, the imposition of COVID lockdowns meant that you were unable to meet the person to whom you were to provide that money.

22. In your evidence, however, you did not explain why it was that you were selected by your drug dealers to either store the money or to provide it to the unnamed third party. What is clear from your evidence, however, is that, if true, you were a person well trusted by your drug dealers.

23. Insofar as the balance of the cash is concerned (that is, the amounts of $2,155.00 and $8,270.00), you said that that was your money which included gambling winnings. At that stage, not only did you have a long-term addiction to methylamphetamine (which you had used continuously since you were 18 years old), but you also had a serious gambling addiction. How you acquired that money, in circumstances where you had not been in employment for some time, was not the subject of further evidence. However, whatever the source of that cash, you have admitted that, in relation to it, as well as the money in the safe, there were reasonable grounds to suspect that all of the funds were proceeds of crime.

24. It is appropriate to make a finding of the objective seriousness of the principal offence. In my opinion, it is slightly below a mid-range offence for an offence of its kind.

25. The nature of the matter on the Form 1 requires a meaningful increase in the sentence for the principal offence.

26. You were born in Hong Kong in 1976. You came to Australia with your parents in 1985.

27. Your relationship, and that of your mother, with your father was problematic. He was physically and mentally abusive towards both your mother and you.

28. As a consequence of that abuse from your father, and racism that you experienced at school, your time at school was not a happy one. Your upbringing was, therefore, a dysfunctional one which reduces the moral culpability of your offending.

29. You left school at the end of Year 12, after which you worked for a time in hospitality at a fairly basic level.

30. However, there were only very scant details given of your work history.

31. As I have already said, you have been addicted to methylamphetamine since you were 18 years old. You are now 45 years old. I am satisfied, on the balance of probabilities, that that addiction is causally connected to your dysfunctional upbringing.

32. You have a significant criminal history, including a term of imprisonment to which you were admitted to parole in 2012 for an offence similar to the offending which brings you before the Court today.

33. Following your release to parole in 2012 in connection with that sentence, you were abstinent from drugs for 1 to 2 years, but between then and your arrest in 2021, you were again a regular abuser of methylamphetamine.

34. There is no evidence that you have ever sought any formal assistance in connection with any underlying psychological issues as a consequence of your upbringing or that you have ever sought professional assistance in relation to your (related) long-term abuse of illegal drugs or gambling.

35. There is, however, your sworn (and unchallenged) evidence that, in the 11 months you have been currently in custody following your arrest on 15 August 2021, you have not used illicit drugs - notwithstanding that they are widely available in the custodial setting.

36. As I earlier mentioned, you have a significant criminal history which extends beyond New South Wales into Western Australia and Queensland. You are, therefore, not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

37. You entered an early plea of guilty and, therefore, are entitled to a discount of 25 per cent for the utilitarian value of that plea.

38. The contents of the sentencing assessment report were, unexplained, unhelpful to you in the context of assessing your remorse.

39. However, your oral evidence concerning the contents of that report was not challenged and, in the circumstances, by having regard to that evidence and the fact that you are now 45 years of age, I accept your evidence that you now realise that you “have lost too much to drugs”. I accept that, with maturity, you are now genuinely remorseful – notwithstanding what I have said about your evidence concerning the monies found in your bedroom. Your ambitions in life now are to become a fitness and / or life coach.

40. Considering the long period of time you have been using methylamphetamine, and notwithstanding that you have not used it for the last 11 months, it is clear to me that you will require significant professional assistance in overcoming that long-term addiction to that most pernicious drug.

41. On balance, I regard your prospects for rehabilitation as being guarded.

42. Clearly, both general and specific deterrence are fully engaged.

43. No sentence other than one of full-time imprisonment is appropriate and the contrary was not submitted on your behalf.

44. The term of imprisonment shall be backdated to the date of your arrest, namely 15 August 2021.

45. Notwithstanding your age and that this will not be your first time in custody, by having regard to your need for rehabilitation, I shall make a finding of special circumstances to slightly vary the statutory ratio.

46. Paul Julitino Ma, for the offence of manufacturing an amount not less than the large commercial quantity of methylamphetamine and taking into account the matter on the Form 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 8 years. After the discount of 25 per cent, the term of imprisonment is 6 years.

47. I fix a non-parole period of 4 years to date from 15 August 2021 and which will expire on 14 August 2025.

48. I fix a balance of 2 years to date from 15 August 2025 and which will expire on 14 August 2027.

Decision last updated: 05 August 2022