R v Michael Deng

Case •

[2020] NSWDC 490

•

30 April 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Michael Deng [2020] NSWDC 490
Hearing dates: 24 and 28 April 2020
Decision date: 30 April 2020
Jurisdiction:Criminal
Before: Hoy SC DCJ
Decision:

Convicted and sentenced to imprisonment. For Orders see [107]–[116]. Breach of bond admitted and bond revoked. No further penalty imposed. See [117]–[122].

Catchwords:

SENTENCING — Relevant factors on sentence — Previous interstate sentence — Totality and accumulation — special circumstances — significant rehabilitation

Legislation Cited:

Bail Act 1978 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Brown (aka Davis) v The Queen (2020) VSCA 60

GC v R [2019] NSWCCA 241

Mill v R (1988) 166 CLR 59

Porter v R [2019] NSWCCA 117

Postiglione v The Queen (1990) 189 CLR 295

R v Bui [2018] SASCFC 19

R v Despotovski [2020] NSWDC 110

R v Elias (2013) 248 CLR 483

R v Harrison (1990) 48 A Crim R 197

R v M.A.K, R v M.S.K. [2006] NSWCCA 381

R v Todd (1982) 2 NSWLR 517

Category:Sentence
Parties:

Director of Public Prosecutions (Crown)

Michael Deng (Offender)
Representation:

Solicitor:
Mr N Lawrence (Crown)

Counsel:
Mr G Thomas (Offender)
File Number(s): 2011/00097888; 2012/00174156; 2012/00268546; 2013/00220123
Publication restriction: Nil

Judgment

  1. The Offender, Mr Michael Deng, is now 35 years old. He appears before me today for sentence having pleaded guilty to multiple offences. I have divided them into three tranches:

2011 Offence

Count 1: supply prohibited drug (93.1g of dimethylamphetamine) as against s 25(1) of the Drug Misuse and Trafficking Act 1985. Maximum penalty: 15 years imprisonment and/or a fine of 2,000 penalty units, which equates to $220,000.

2012 Offences

Count 2: dishonestly obtain financial advantage by deception as against s 192E of the Crimes Act 1900: ten years imprisonment.

Count 3: supply prohibited drug (228.62g methylamphetamine) as against s 25(1) of the Drug Misuse and Trafficking Act 1985, the same maximum penalty as Count 1, 15 years and/or 2,000 penalty units.

Count 4: supply commercial quantity prohibited drug (1.127kg gamma butyrolactone (“GBL”)) as against s 25(2) of the Drug Misuse and Trafficking Act 1985. This has a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units, $385,000. It also has a standard non-parole period of ten years imprisonment.

Count 5: fail to appear in accordance with a bail undertaking as against s 51(1) of Bail Act 1978, maximum penalty three years imprisonment and/or a fine of 30 penalty units, $3,300.

2013 Offences

Count 6: police pursuit, not stop, drive dangerously, first offence, as against s 51B(1) of the Crimes Act 1900, maximum penalty three years imprisonment.

Count 7: possess unauthorised pistol as against s 7(1) of the Firearms Act 1996, maximum penalty 14 years imprisonment, standard non-parole period of three years.

Count 8: deal with property suspected proceeds of crime as against s 193C of the Crimes Act, maximum penalty of two years imprisonment and/or a fine of 50 penalty units $5,500.

  1. The maximum penalties and standard non-parole periods, where applicable, confirm the seriousness of these offences and the maximums are reserved for those that fall into the worst category. The punishment must fit the crime. The gravity of the offences is to be assessed by reference to their objective seriousness.

Form 1 Matters

  1. The Offender also asks that I take into account a number of further offences under s 32 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”). These are referable to each of three tranches of substantive offences.

2011 Offence: Count 1

There are two Form 1 matters attaching to this Count:

Count 1: deal with property reasonably suspected to be the proceeds of crime ($1,100), as against s 193C Crimes Act 1900, maximum penalty two years and/or fine of 50 penalty units, $5,500. This is a summary offence.

Count 2: possess identity information with intent to commit serious indictable offence, driver’s licences and a credit card, as against s 192K of the Crimes Act 1900. This carries a maximum penalty of seven years.

2012 Offences: Count 3

There are two Form 1 offences as against Count 3 (one of the 2012 offences):

Count 1: possess drug manufacturing apparatus with intent to use it to manufacture, as against s 24A(1) of the Drug Misuse and Trafficking Act 1985, maximum penalty ten years imprisonment and/or a fine of 2,000 penalty units, $220,000.

Count 2: recklessly deal with the proceeds of the crime, ($27,030) as against s 193B(3) of the Crimes Act 1900, a maximum penalty of ten years imprisonment.

2013 Offences: Count 7

The third tranche of Form 1 matters attach to Count 7 in the 2013 offences:

Count 1: possess prohibited weapon without permit, (self-defence spray), as against s 7(1) of the Weapons Prohibition Act 1998, maximum penalty 14 years.

Count 2: possess ammunition without holding a licence, as against s 65(3) of the Firearms Act, maximum penalty 50 penalty units, $5,500.

Count 3: possess prohibited drug, 6.1g gross methylamphetamine as against s 10(1) of the Drug Misuse and Trafficking Act 1985, maximum penalty two years imprisonment and/or a fine of 20 penalty units, $2,200.

Count 4: possess prohibited drug, 0.7g gross cocaine, as against s 10(1) of the Drug Misuse and Trafficking Act 1985, the same penalties as above.

Count 5: possess unregistered pistol, as against s 36(1) of the Firearms Act 1996, maximum penalty ten years imprisonment.

  1. These are included on three separate Form 1 documents and are attributable to the substantive Counts 1, 3 and 7 respectively. By dealing with the matters in this way the Offender has the advantage of not facing separate punishment. Maximum penalties and standard non-parole periods, where applicable, are “legislative guideposts” to be considered along with other established sentencing practices, both at common law and legislatively, including consideration of those matters identified in ss 3A, 21A, 22, 22A and 23 of the Act where applicable. There should be reasonable proportionality between the sentence and the circumstances of the crime and the relative importance of the objective facts and subjective features will vary in every case. Due weight must be given to the objective circumstances.

Submissions and Material Tendered

  1. The Crown has provided a bundle containing a multitude of documents, including the Court Attendance Notices and s 166 Notices, Agreed Facts, the Offender’s criminal records from New South Wales, Tasmania and Western Australia (“WA”), together with his New South Wales Custodial Services history and documentation relating to the sentence imposed and served in WA, which had been backdated and commenced on 12 February 2014 and resulted in his release to parole on 27 August 2019. I also have the Remarks on Sentence for that WA sentence from District Court Judge Davis. I have also been provided with relevant Parole Orders and a recent NSW Sentencing Assessment Report from a Mr Pearce dated 14 April 2020.

  2. On behalf of the Offender I have received a bundle of documents which included a report from clinical psychologist Mr Sam Borenstein, together with an Addendum dated 22 and 24 April 2020 respectively, a letter of apology from the Offender himself and a reference from his brother, Ricky Deng, together with further documents regarding his sentence and parole referrable to the WA sentence. From the WA Department of Corrective Services there is also an Advice of Release to Parole document, a copy of the Parole Order and a transcript of a multitude of courses completed by the Offender whilst he was in custody: a Pathways Program completion certificate, the 100 Hour Addictions Program, copies of licences to perform high risk work from WorkSafe Western Australia, a statement of attainment from Down to Earth Training and Assessing, together with copies of the various certificates and licences referrable to his successful completion of the equivalent to the NSW TAFE in WA and First Aid courses. The Offender also gave evidence on his sentence.

  3. Mr Lawrence for the Crown has also provided some helpful submissions and both he and Mr Thomas have made oral submissions.

Record

  1. The Offender is presently 35 years of age and has a regrettable record. In NSW through 2004 and 2005, he accumulated a number of convictions for fraud-related matters. In particular, with sentences increasing from s 9 good behaviour bonds up to gaol sentences, the latter of which was substituted on appeal by District Court Judges and for which he was given suspended sentences. There was then a gap until 2011, when he accumulated some driving offences and more relevantly, drug-related matters including possess prohibited drugs, goods in custody and some failures to appear. Sentences of imprisonment then imposed by the Local Court were again converted on appeal into bonds or shorter sentences of imprisonment.

  2. In 2006 and 2007 he was in Tasmania, where he accumulated further convictions. Again, apparently fraud-related charges together with a pervert the course of justice and for which he received cumulative sentences of imprisonment.

  3. As will be plain from these remarks, he has also been convicted of some serious drug related offences in WA, where he was sentenced to a total of seven and a half years imprisonment with a non‑parole period of five and a half years. He was released to parole on that sentence on 27 August 2019 and was then was extradited to NSW to face sentence for the present matters. Overall, his record does not entitle him to leniency.

Custodial Services Record

  1. I am not informed of any offences against prison discipline by the Offender whilst serving his sentences in either Tasmania or WA. That is to his credit. As to his time in custody in NSW, there have been no matters over the last 12 months and only two minor matters in 2011 and 2012. This is also to his credit and in my view augers well for his ongoing rehabilitation.

Time in Custody

  1. The Offender has been in custody since 12 February 2014 for the WA offences and to which I will soon refer. As to time in custody directly attributable to the present matters, the Offender has spent nearly nine months and six days in custody. Furthermore, the Crown noted an additional 14 weeks and six days which was served for other offences prior to the 2011 matters which may be taken into account.

  2. Mr Lawrence has fairly submitted that in accordance with Mill v R (1988) 166 CLR 59, R v Todd (1982) 2 NSWLR 517 and subsequent authorities to which I will later refer, I have an overarching discretion to backdate the present sentences to commence during the Offender’s custodial time served in WA and from which he was released to parole and is now in custody here in NSW. The background, as I earlier mentioned, was that he was released to parole from WA on 27 August 2019, having served just over five and a half years non-parole of that sentence and was then, upon release, immediately extradited in custody to NSW to face these charges. He was thus bail refused and remains so. He has therefore been in custody since being firstly charged in WA on 12 February 2014 constantly. This equates to nearly six years and three months.

Plea of Guilty

  1. It is agreed the Offender pleaded guilty at the earliest reasonable opportunity and he is entitled to the maximum discount of 25%. This acknowledges the utilitarian value of his pleas and is pragmatically evidence of contrition and remorse. It is also a mitigating factor under s 21A(3)(k) and s 22 of the Act.

Facts

  1. In summary the facts are as follows:

2011 Offences

  1. On 18 October 2011, Police attended premises in Campsie looking for the Offender to execute outstanding warrants. They were shown to his unit and as the front door was blocked by a security chain, they could see in and saw the Offender lying on the floor, apparently under the influence of a drug or drugs. They forced entry and arrested him for the outstanding warrants. The unit was searched and police then discovered a number of items which formed the basis for these charges. There was a resealable plastic bag which contained 93.1g of N,N-dimethylamephetamine in the wardrobe in the bedroom. This is a deemed supply and constitutes Count 1. Police also found $1,100 in cash on top of the fridge together with three driver’s licences and a credit card in other names. These constitute the bases for Counts 1 and 2 on the related Form 1.

  2. Due to delays in analysis, Court Attendance Notices were not issued to the Offender for these offences until 2 April 2012. He subsequently absconded and was not arrested and charged for these offences until 28 August 2012, which was the date he was arrested and charged with the 2012 offences. This was apparently after a period of surveillance which had commenced on 11 May 2012.

2012 Offences

  1. On 11 May 2012, Police obtained telephone intercept warrants with respect to the Offender’s mobile telephone number. That, together with physical surveillance, suggested he was supplying methylamphetamine and also engaged in fraudulent transactions. This investigation continued until his arrest and a search of his premises on 28 August 2012. The details of the ensuing offences are as follows:

  2. Count 3 is charge of supply prohibited drug, 228.62g of methylamphetamine. The facts reveal that between 17 May 2012 and 28 August 2012 the Offender supplied the following amounts on separate occasions to various people:

17 May 2012: 3.5g via his then girlfriend to a Ms Alameddine,

22 May 2012: 1.75g via his then girlfriend to an unknown person for $550,

24 May 2012: 17.5g to an unknown male,

24 and 25 May: 7.5g via his then girlfriend to a Mr Foster for $2,200,

19 June 2012: 1.75g to an unknown male and

20 June 2012: another 1.75g to the same unknown male.

  1. These individual transactions totalled 33.75g.

  2. The search of the Offender’s premises on 28 August 2012 also located another 194.87g of methylamphetamine in a safe in his bedroom. This, with the earlier amounts, gives a total of 228.62g and is the foundation of a rolled-up charge constituting this Count. At the time, the indictable quantity was 5g and commercial quantity 250g. The offence is thus a combination of deemed and actual supplies.

  3. Whilst under surveillance, the Offender attended four different Westpac branches on 21 May and withdrew cash. Firstly, $6,000 cash from North Sydney, $8,000 from Milsons Point, $5,000 cash from Neutral Bay and then $5,000 cash from Broadway. These were all extracted via a Westpac Flexi Loan account that had previously been set up in the name of another person, albeit not authorised by the person actually named as the account holder. Essentially, it was set up without his knowledge. It had a borrowing limit of $31,900. Whoever set up that account then contacted Westpac and changed the access code key word and residential address for all accounts belonging to that other person, unbeknownst to him. This then enabled the Offender to make the series of cash withdrawals referred to and which totalled $24,000. This constitutes Count 2.

  4. The search on 28 August 2012 also revealed another prohibited drug in the freezer: 1.1271kg of GBL. This constitutes Count 4.

  5. Police also found a number of beakers and glassware containing liquid and a crystalline substance which included pseudoephedrine and other precursors; acetone, methylated sprits, demineralised water and caustic soda, together with what was apparently a hotplate, all of which in the Facts are integral to the refinement of methylamphetamine, and thus form the basis of Count 1 on the related Form 1.

  6. A further $27,030 in cash was located in the safe, within which the earlier nominated 194.87g of methylamphetamine as part of Count 3 above had also been found. That cash constitutes Count 2 on the related Form 1.

  7. Subsequent to the 2012 offences and being charged, the Offender apparently sought a hearing in the Local Court which was initially listed on 19 September 2013. Contrary to his bail undertaking, he did not attend. This constitutes substantive Count 5.

2013 Offences

  1. At about 6.30am on Sunday 14 July 2013, Police observed the Offender driving a Toyota Yaris while using his mobile phone. They pulled him over in Oxford Street, Paddington and conducted a breathalyser test. He was asked for, but was unable to produce, his licence. Instead, he handed over his Medicare card. The Officer took it back to the Police vehicle to conduct some checks. They became suspicious of the Offender. He was jerking his vehicle forward and back. They asked him to turn his ignition off and hand over the keys. He drove away. He went up George Street, then into Underwood Street and then north into Elizabeth Street. Police pursued but lost him near the intersection of Elizabeth Street and Hargrave Lane. During the pursuit he apparently drove the wrong way up a one way street. They terminated the pursuit. This constitutes substantive Count 6.

  2. A little later that morning, at about 7.15am, a female civilian walking along George Street found a large amount of cash, an iPad and a brown Louis Vuitton bag. She found some more cash in a plastic bag under a nearby car. She put all of these items into the Louis Vuitton bag. She was unable to find the details of anyone within to identify the owner. She, to her great credit, then handed it all in to the Police at Paddington Police Station. They inspected the bag and apparently found $8,000 cash. This is Count 8. This was together with a .25 calibre semi-automatic pistol which constitutes Count 7. It was packaged and thus not easily accessible. I note that whilst this is not revealed in the facts, it was within the Crown submissions. The search of the bag also revealed the following items which comprised the various counts within the related Form 1: a magazine which contained a .25 calibre bullet (Form 1, Count 2), a tissue within which there were two small resealable plastic bags within which there was 6.1g of methylamphetamine (Form 1, Count 3) and the second within which there was a second small resealable plastic bag containing 0.7g of cocaine (Form 1, Count 4). I again confirm these weights were gross weights, that is including the plastic bags.

  3. The Offender has also pleaded to possessing an unregistered pistol, being the very same semi-automatic pistol. This is Count 5 on the Form 1. The motor vehicle which he was driving, the Toyota Yaris, was later found abandoned somewhere in Paddington. Within it, Police found a can of self-defence spray. That constitutes the final related Form 1 offence, Count 1.

Objective Seriousness and s 21A Factors

  1. Mr Lawrence, on behalf of the Crown, has addressed each of the offences generally and those carrying standard non-parole periods as to objective seriousness. Mr Thomas takes little issue with the Crown’s submissions.

  2. As to the 2011 matters, the amount of the drug is towards the lower end in weight and I have no information as to purity. There were no apparent trappings of wealth or sophistication, tick sheets or network. The enterprise appears to have been somewhat basic, the Offender being both manufacturer and user, a low-end enterprise. This is also reflected by the circumstances of him being arrested, comatose on the floor, surrounded by the indicia of offending and various subsequent charges. In my view, this matter falls towards the lower end of objective seriousness.

  3. The 2012 matters are more serious. Count 3 has a significant weight; towards the upper end, just below commercial quantity, or the limit for commercial quantity. Again, the Crown submits the Offender seems to have been a sole trader, operating his own manufacturing and supply business. It remains relatively low-scale and again supporting his own habit. That said, there is a little more sophistication. The supplies were both actual, with negotiated prices, and deemed. I have no detail as to the purity and again there are no particular indicators of wealth or sophistication. It was, however, more advanced and thus more serious than the circumstances of Count 1. I think it falls at or just above the mid-range of objective seriousness.

  1. Count 4 is less serious. The amount there is somewhat lower than the commercial quantity. Again, no analysis as to purity and little information as to its use other than what I accept from Mr Thomas. In light of the factors I have already stated, I think it falls also towards the lower end.

  2. The fraud matter, no doubt intertwined with his drug manufacturing and use, also by its methodology, appears at about the mid-range. However, the ease with which it appears to have been achieved is somewhat surprising. I think it falls below the mid-range.

  3. The 2013 offences are submitted to be related to the Offender’s involvement with drugs. This, from Mr Thomas on behalf of the Offender, is not opposed. I agree. The circumstances of the pursuit suggest it was impulsive and with respect, despite its danger, relatively straightforward. There were no indicia of extreme behaviour, recklessness or seriousness, no estimates given as to excessive or gross speed, no information as to actual danger. It appears to me to be potential danger, resting with pedestrians and/or other road users, although I note occurring early in the morning and on a Sunday.

  4. The possession of an unauthorised pistol is of significant concern. However, as I can best glean it was packaged. There was a cartridge, apparently applicable to the pistol, in a magazine with it. There was no evidence whatsoever as to its use or intended use. However, it is concerning in the circumstances of the offending behaviour that it was apparently discarded during the pursuit, abandoned in a public place.

  5. As an aside and fortunately, the named civilian who found it, together with the other items including significant amounts of cash, demonstrated marvellous honesty by handing it into police. I recommend that civilian be commended for her actions.

  6. In all the circumstances, there is an inherent risk with the pistol being left as it was and being accessible by anyone who might stumble upon it. Overall, I think the matters falls, as submitted by the Crown, just below mid‑range.

  7. I have also considered aggravating and mitigating factors. As to aggravators, no factor that is an element or otherwise inherent is to be included. On behalf of the Crown only one aggravator is promoted. It is conceded by the Offender; the Offender was on conditional liberty at the time of each offence. As to Count 1, he was on bail for an earlier offence. As to Counts 2 through to 4, he was on a s 9 good behaviour bond and as to Counts 6 through to 8, he was on bail for Counts 1 through to 5 inclusive. I find this as an aggravating factor in respect of each of these matters and more specifically as applicable under s 21A(2)(j) beyond reasonable doubt.

  8. As to mitigating factors, nothing in particular has been submitted on behalf of the Offender. It does, however, appear to me that his remorse is genuine and I accept it on balance. I also accept his plea of guilty. The question as to unlikelihood of reoffending and/or good prospects of rehabilitation is less certain. For the purposes of sentencing, I accept Mr Deng is on the right track and has made significant inroads. With respect, as a mitigating factor he is yet to be tested and in light of his record I do not make a positive finding as to these two aspects. I do, however, factor in his efforts and achievements thus far in my consideration of the overall circumstances and in particular with respect to special circumstances.

Statistics

  1. I now turn to statistics. Whilst no one has taken me to them, I have considered them as best I can.

  2. In relation to the charges faced by the Offender, I have applied both general profiles and those, as best I can, applicable to this Offender. I have also considered statistics both pre and post-sentencing reforms of 24 September 2018. Firstly, I acknowledge there are no specific statistics applying to methylamphetamine or dimethylamphetamine. I have drawn upon those applicable to amphetamines. I have considered them with respect to Counts 1 through to 3 and Count 7.

  3. Count 1, pre-sentencing reforms, with a profile of an individual with Form 1 matters, multiple offences, similar priors with custody, guilty plea and aged between 31 and 40, there are 84 cases, 73 of which (87%) received fulltime custody. The aggregate sentences there range from 15 months to seven years with non-parole periods from eight months to five years. Sentences for this as a principal offence were between nine months and six and a half years, with non-parole periods ranging between eight months and four years and two months. Take away the profile factors gives over 2,000 cases of which 1,151 (55%) received fulltime custody. Aggregate terms range between two months and 13 years with non-parole periods between three months and nine years. Terms for the principal offence, being supply, were between one month and ten years and non-parole periods between three months and six years.

  4. Post-sentencing reforms and using the same profile factors reveals only nine cases. Two received non-custodial sentences; they were an 18 month CCO and a 21 month ICO. The remainder received fulltime custody. The aggregate sentences range from 18 months to four years and three months with non‑parole periods between ten months and three years. Sentences with this as the principal offence range from 18 months to three years with non-parole periods ten months to 14 months. Take away the profile factors, there are 229 cases, of which just under half, 106 (46%) received ICO’s and 97 (42%) received fulltime custody. The aggregate sentences for those range between one year and seven and a half years with non-parole periods of four months to four years and ten months. Sentences for this as the principal offence range from six months to four and a half years with non-parole periods between four months and two years and five months.

  5. Count 2, pre-sentencing reforms, with the Offender’s profile factors there are only nine reported cases, all of which received fulltime custody. Aggregate terms there were two and a half years to 12 years with non-parole periods between 18 months and eight years. With this as the principal offence they were nine months to seven years, non-parole periods range from 14 months to three years. Removing the profile factors gives 88 cases of which 77 (87.5%) received fulltime custody. The aggregate sentences range from one month to 12 years and the non-parole periods six months to eight years. Where this was the principal offence, the sentences range from one month to seven years and non-parole periods of six months to five years and one month.

  6. Post-sentencing reforms there are no cases with this Offender’s profile. Remove the profile, however, gives 20 cases. Four of those received CCO’s, one received an ICO and the remaining 15 (75%) were sentenced to fulltime imprisonment. Of those, the aggregate sentences ranged from two years and nine months to ten years with non-parole periods spanning between 17 months and six and a half years. With this as the principal offence, the sentences range from 18 months to five and a half years with non-parole periods of ten months to four years.

  7. Count 4, supply commercial quantity of the prohibited drug GBL, as against s 25(2) of the Drug Misuse and Trafficking Act. There are no statistics regarding GBL. I have instead referred to GHB, a similar drug with the same threshold for commercial quantity.

  8. Pre-sentencing reforms and using the Offender’s profile there is only one. In that case there was an aggregate sentence of four and a half years, non-parole period of two and a half years. The indicative sentence for the actual supply was three years and nine months, non-parole period two years and one month. Absent the profile factors there are 22 cases of which 16 (73%) received fulltime custody. The aggregates there were three to seven years, non-parole periods of one to five years. Using that as the principal offence the sentences range from two years and four months to six years with non-parole periods of one year to three years.

  9. Post-sentencing reforms and applying this Offender’s profile there is just one case. That was an aggregate sentence of six years and nine months, non-parole four years. The indicative sentence was also six years and nine months with a non-parole period of four years. Take away the profiles there are only four cases, all of which received custody. The aggregate sentences range from three years and three months to six years and nine months, non-parole periods of 18 months to four years. Terms for this as the principal offence span from three years to six years and nine months, non-parole periods 15 months to four years.

  10. Count 7, pre-sentencing reforms and applying the profile there are only nine cases. One received a s 12 suspended sentence, two received ICO’s, the remaining six (two-thirds), received fulltime custody. Aggregate sentences are from two years and nine months up to ten years. The lowest aggregate non-parole period was 18 months and the highest six years. For that as the principal offence, the range was between two years and three months and seven years with non‑parole periods ranging from 15 months to three years. Deleting the profile factors gives me 83 cases, of which 62 (75%) received fulltime custody. There, the aggregate terms were between one year and ten years and non-parole periods one year to six years. With this as the principal offence the range was one to seven years with non-parole periods of one year to five years and three months.

  11. Post-sentencing reforms, there are no recorded cases with this Offender’s profile. Removing the profile there are two. One received a two and a half year ICO and the other one a 22 month custodial sentence with a non-parole period of 14 months.

  12. I come now to what the higher Courts have said about statistics; that they are of assistance in establishing a range, but do not constitute the outer bounds of permissible discretion. They are described as being more a yardstick upon which to examine the proposed sentences. They are also of less value where the offences are not frequently prosecuted or where there is a small number making up the set. They have been referred to as a “blunt instrument” and/or an “opaque tool”. Overall and against the background of the compelling subjective and relevant objective circumstances, they seem to me to be of limited value and the present case must be considered in light of its own unique circumstances

  13. The Offender, Mr Deng, gave evidence before me. He firstly affirmed the contents of his letter of apology, that it was true and correct. He apologised for his offending behaviour and indicated that he had grown-up and learnt from his time in gaol over the last six years. He professed abstinence from illegal drugs since going into custody in WA. Whilst adopting the contents of both the psychological report from Mr Borenstein and the Sentencing Assessment Report, he acknowledged there were some differences between what was there recorded and that recited in the sentencing Remarks from the WA sentencing Judge. This specifically related to details of his past drug use and when he commenced using methylamphetamine. He said that he became addicted to methylamphetamine in around 2010 rather than any earlier date. He agreed that he tried or used methylamphetamine earlier, but only became addicted in 2010 as an adult when he was subjected to adverse or severe economic, familial and emotional pressures.

  14. In cross-examination it was suggested that he tried to minimise his use and/or involvement with methylamphetamine by not revealing his earlier use to the report writers, that is having started using at a much younger age. He disagreed with this proposition and explained that the report writers had not specifically asked him when he started using the drug and were instead more focussed on identifying when he became addicted to the drug. He readily conceded using all manner of illicit drugs from a young age including what he described as experimentation and/or intermittent use of methylamphetamine. He affirmed that he ceased using any illicit drugs since his arrest and incarceration in WA.

  15. He was also challenged as to not only being loose with his revelations as to his past drug use, but also by not revealing his offences in Tasmania. He also rejected this, indicating there was no intended deception whatsoever and that the report writers, in the very brief time they interviewed him via AVL with encompassing transmission and communication difficulties, did not specifically ask him any details about those matters. He readily conceded that both matters as challenged were relevant to his background and overarchingly stated that he was certainly not endeavouring to minimise his past use of methylamphetamine or his past history, in particular from Tasmania.

  16. He indicated that his time in custody in WA, some five and a half years, was a period where he has reflected and endeavoured to reform from his past misconduct. He committed himself to and has successfully completed a multitude of courses and programs including those to assist in both vocation and rehabilitation. In particular, he spoke of the intensive six month Pathways program which he successfully completed and which has taught him skills to avoid recidivism, relapse into illicit drug use and excessive alcohol and overall commitment to a more positive and pro-social lifestyle. He said he has reflected on his misconduct over the past six years in custody and realised that he needed to turn himself around. He says he has done so. He acknowledges the adverse impact that his past crimes and involvement in drugs has had upon himself, his family and friends as well as, more broadly, society. He says he now wishes to better himself, recognising he needs to continue and willingly focus on his problems and remain under supervision. He wants to prove to the community that he has changed and will lead a more pro-social lifestyle. He proposes to return to living with his parents and engage in more involved contact and liaison with his young daughter who is now 11 and from whom he has been generally and physically estranged. She lives in Thailand with her mother. He says he has regular correspondence and telephone calls with her whilst in custody. He also explained that he has been in fulltime work whilst in custody both in WA, primarily there as a chef, and now in NSW, working in the furniture shop up at Wellington.

  17. He said that since the COVID-19 pandemic, custodial conditions have been adversely affected. Inmates, prisoners and those in custody have become more isolated with limited activity and confined to their various pods. He does, however, express optimism as to his future, consequent to his training and the courses he has completed and hopes to use them to obtain employment upon his release.

  18. In conclusion he told me that he has been very anxious and concerned about his future life, particularly against the background of these NSW offences hanging over him while he was serving custodial time in WA. He said that whilst it has been very difficult he has earnestly tried to change his ways and he has hopefully learnt his lesson this time. He says, in a nutshell, that he has cleaned-up his act and is seeking this one last opportunity to reassimilate back in the community and follow what might be described as a pro‑social and positive role. He realistically agrees that he faces further fulltime custody, as difficult as that may be, pending such an opportunity.

Letter of Apology

  1. I have received a letter of apology from the Offender. He there also expresses remorse for his offending and acknowledges the consequences to his family and the community. He recognises the harm his offending has created in perpetuating the illegal drug trade which is in turn a burden on our health system. He details the impact incarceration has had upon his family and especially his daughter, who he has not seen for six years. He also expressed shame in letting his parents and brothers down, all of whom, like so many, remain supportive of him.

  2. He outlines the various courses and qualifications he has completed, emphasising the Pathways program. With the other courses, training and skills achieved, he expresses hope he can regain employment upon release and then positively contribute to our society and mend his relationship with his family.

  3. I have received details of all those courses and qualifications he has completed whilst in custody. I have the transcript from ASETS, which is apparently the Western Australian equivalent to NSW TAFE. He has done a mass of courses from 2015 to 2019 covering such areas as first aid, operating machinery, chainsaws, forklifts, skid-steer loaders and excavators. He has done OH&S courses, computing, poly-welding and WorkSafe licences for forklifts and bobcats. He also has other OH&S certificates and qualifications. The significant course is the Pathways program, which took over six months in custody. It specifically addressed addictions and offending behaviour. Doing this is all to his credit. Coupled with his stated abstinence which I accept, this augers well for his ongoing rehabilitation. I add to this his acquired vocational skills or qualifications which makes the potential for his successful reassimilation back into our community more likely.

References

  1. I have also received a number of references. Firstly, a letter from his younger brother Mr Ricky Deng. He recounts the hardships of the Offender’s upbringing, the family having immigrated to Australia when he was very young. He says he and his brothers, including the Offender, were bullied and found it difficult firstly to assimilate. He says, however, the Offender was quick to learn English, took on a lot of responsibility and his parents relied on his support. He says he was a role model for he and his other brother with a strong work ethic. He was astute and kind to those all around. He suggests the pressure of high hopes and expectations that the family had for him may have been a barrier to his success. He relates also his family’s overall disappointment at the course that the Offender’s life has taken. He advises me of their parents’ obvious and understandable despair at the Offender’s downward spiral. He says that they sometimes blame themselves for the choices that he made but refuse to let the Offender actually see this, believing it would make it even more difficult for him. As an aside and with respect, they should not shoulder responsibility themselves. The Offender himself, I think, would immediately accept sole responsibility for his misconduct and not in any way blame his parents.

  2. The youngest brother also tells me how his parents grieve at having not seen their son since 2015, just after he went first into custody in WA. He also acknowledges the hardship the Offender has undergone, not being able to see his daughter, in particular during her formative years.

  3. He says that he has seen some genuine improvement in the Offender together with his clear attempts at rehabilitation. He says he seems to him to be committed to pursuing all avenues open whilst in prison, completing all those courses and qualifications. He says his mindset is now more positive in the build-up to his release to parole, but has sadly seen some negativity from the Offender, being in gaol in NSW. He is fearful that the Offender might lose hope. He does, however, stress the unwavering support of both he and his family and the positive influence they have upon him. He says the family has a network which encourages positive progression for the Offender as best he can.

Psychological Report

  1. I have a very lengthy report from a psychologist, Mr Borenstein. He interviewed the Offender via AVL and provides some helpful background and familial information, much of which was already confirmed by the Offender in person. He says that during the offending Mr Deng was using up to 4 g of ice per day, a significant habit. This continued up until his arrest in WA. He also confirms Mr Deng tells him that since incarceration and despite availability, he has abstained from using illicit drugs. He said that he was clean up until 2010. In the lead up he had married and had his young child. His relapse, however, commenced with his wife and child returning to Thailand and related economic pressures with his then flyers and posters business. He says he was also then mixing with the wrong crowd or disingenuous friends. He said his habit then increased as did his need for funds. He told the psychologist that his main motivation for offending was to maintain his methylamphetamine habit.

  1. As is also confirmed by the Community Corrections officer in his report, the Offender was born in Thailand and has two younger brothers. They all, with their family, came to Australia when he was about six. His mum and dad have worked hard ever since. He described his childhood as difficult. They had a Chinese restaurant in Lakemba and the Offender went through primary and high school with apparently great success. When not at school, he worked in the family restaurant. He achieved good results in the HSC. He was socially competent, stayed out of trouble and played sport. After school he worked in a mobile phone sales and repairs business and then marketing for insurance companies. He then travelled overseas, met his wife and was married in about 2006 in Thailand. They had their little daughter who is now 11. He came back to Australia shortly after the marriage and established the poster business. His wife apparently came and lived here for about a year but then returned, saying she wished to stay in Thailand permanently. This created considerable stress and during this time, the Offender was basically commuting when he could back to Thailand to see his wife and daughter.

  2. As things culminated in 2010-2011, this is where the stress overrode him and he started getting back into drugs. This was apparently after about five years, he says, of abstinence. This is where his dosage increased to something like 4 g a day. He says the pressures on his business and the distance from his wife and child also contributed to his drug use.

  3. As to the present offences, that is those from 2011 to 2014, the psychologist says he was heavily dependent on methylamphetamine throughout. He confirms his resolve to stay abstinent and confirms his good work history in custody. He says that he was cooperative during the assessment and was candid with his answers, no signs of misrepresentation or falseness. He said his mood was depressed slightly, his affect normal and reactive and he appeared cognitively intact. He said he did not give any indications of any serious psychiatric disorder or disturbance. He notes his stress and depression due to his current situation and that there are some sleep difficulties and despair at the lack of contact with his family, the prospect of which has now been exacerbated due to COVID-19 restrictions. He confirmed the support of his parents and brothers and noted that he has not seen his mum or dad for six years.

  4. He says that the Offender conveyed remorse and verbalised his understanding of the impact of drugs and related criminal activity on individuals and our community at large. He again confirmed his hopes to reside with his parents and brother upon release and obtain employment in the construction industry against the background of the tickets and qualifications he has obtained. He said these courses, rehabilitative and vocational, are achievements about which the Offender is justifiably proud. He says he is also willing to engage in ongoing relevant intervention programs, counselling and psychological treatment. The psychologist expresses the view that the Offender’s likelihood of reoffending is low.

Sentencing Assessment Report

  1. I have the benefit of a report from Mr Pearce dated 14 April 2020. It also confirms the Offender’s background and familial information to which I have already referred. Relevantly, the report writer confirms again this Offender accepts responsibility for his behaviour although does suggest his fraud offences were spur of the moment, citing a high pressure lifestyle he says he created, in turn making himself the victim of his own success. As to substance abuse, he says started taking drugs to reduce the pressure and became unfortunately dependent upon it. He maintained his habit by then being involved in drug supply and notably, upon being challenged by the officer, agreed that in addition to supporting his own habit, he did achieve some benefit financially from his drug supply operation.

  2. The officer reported Mr Deng did show some insight into the impact of his offending and was sorry for what he had done. He also again confirmed the Offender was willing to engage in any interventions considered appropriate.

  3. He noted Mr Deng’s past unhappy response to supervision. However as indicated in submissions, these criticisms flow from well before his incarceration in WA and he has had no subsequent opportunity to demonstrate compliance and/or his professed change of heart since completing the considerable amount of rehabilitative and vocational work whilst in custody over the last six years. I add to this there have been no offences against prison discipline reported to me since that time.

  4. The Corrections officer assesses the Offender as having a medium to low risk of reoffending according to the LSIR Inventory and a Tier 2 medium/low supervision classification should he receive any sort of a supervised order. He also said he was suitable to do community service.

The WA Sentence

  1. The focus of the parties and one of the major concerns in this sentencing exercise relates to questions of totality, concurrency and accumulation through the perspective of the three subsequent supply-related matters committed by the Offender in WA in early 2014 and for which he was charged, convicted and, on his plea, sentenced to fulltime custody. He has now served the non-parole component of that sentence and faces sentence for these three tranches of offences, all of which occurred before the WA matters and until now for which the Offender has remained unsentenced.

  2. The circumstances of the WA matters, as best I can glean from the Remarks on Sentence that have been provided in the Crown bundle, are that the Offender was arrested and charged in WA with possess prohibited drug with intent to supply together with a charge of actual supply and another charge of an attempt to possess a drug with intention to supply. These offences apparently occurred on 11 and 12 February 2014. The Remarks confirm that the Offender pleaded guilty and was given a discount of 20%, less than the maximum, apparently due to the strength of the Crown case. Her Honour also confirmed the Offender brought the drugs, methylamphetamine, from NSW into WA. This was while he was on bail for the present offences. The drug was methylamphetamine and as to Count 1, 74.9g with a purity of 69%. Count 2, 54.73g with a purity ranging from 66% to 79%. Count 3, a total of 348g with a purity ranging from 48% to 60%. The sentencing Judge considered the offending behaviour was a commercial operation motivated by profit and involved considerable planning and premeditation. At the time, it was also accepted the Offender was a heavy user of methylamphetamine.

  3. The subjective features understandably match many of those relayed in the present proceedings, especially as to his past history and circumstances at the time of offending. Naturally enough, they did not include his subsequent efforts and achievements in rehabilitation whilst in custody.

  4. The Offender received a total effective sentence of seven and a half years imprisonment commencing 12 February 2014 with an effective minimum non-parole period of five and a half years. The earliest potential release date was nominated as 11 August 2019. Documentation reveals, and the parties agree, that he was actually released to parole on 27 August 2019. This included his parole transfer to NSW together with ongoing supervision via NSW Community Corrections. There were a number of relevant other requirements however from a practical point of view, the Order essentially resulted in the Offender being extradited to NSW and remaining in custody.

Totality and Accumulation

  1. Both Mr Lawrence for the Crown and Mr Thomas on behalf of the Offender have been relatively succinct in their submissions. Both agree that resolving the present matters in light of the WA sentence to which I have already referred requires application of the principles enunciated by the High Court in the seminal authority Mill v R (1988) 166 CLR 59 which in turn endorsed the approach of the NSWCCA in R v Todd (1982) 2 NSWLR 517. Relevantly, the starting point is acknowledged as that contained in Todd at pp 519 – 520:

“Moreover, where there has been a lengthy postponement whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstances that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and the sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite un-due degree of leniency being extended to the prisoner.”

  1. In Todd the Appellant committed a spate of robberies over a period of about eight days, firstly in NSW and then in Queensland where he was apprehended. He was sentenced in Queensland and having served a considerable amount of that sentence, was then extradited to NSW where he was then sentenced for the earlier NSW offences. The NSWCCA reduced the non-parole periods imposed by the NSW sentencing Court which incorrectly did not take into account the Queensland sentence, acknowledging the factors that I have extracted above.

  2. This was approved in Mill which was considering a sentence imposed for an offence of armed robbery committed in Queensland prior to which the Appellant had committed two armed robberies in Victoria. He had been sentenced in Victoria and having served a non-parole period of eight years there, upon release was extradited to Queensland and then dealt with for the latter offence. The High Court confirmed the totality principle applied and in approving Todd confirmed that fairness to an Offender not only required the application of some concurrency, partial concurrency or lowering of the individual sentence, but also emphasised that a Court should ask, “what would be the likely effective head sentence imposed on an Offender if all offences had been committed in the one jurisdiction?”.

  3. The NSWCCA in Porter v R [2019] NSWCCA 117 and GC v R [2019] NSWCCA 241 assists in the application of these principles, again under the overarching principle of totality. As was confirmed in the former case, consideration must be given to whether the delay was a result of an aspect of the criminal justice system, that is the Offender committing crimes in different jurisdictions and then having to wait until he has served a term of imprisonment in one jurisdiction before being transferred to another for further sentencing (see [68]). The Court there confirmed that the sentencing Judge should address the question of, “what would likely have been the effective head sentence imposed if the applicant had been sentenced at the one time?”, which reflects implicit acknowledgment of the totality principle.

  4. In GC, the NSWCCA confirmed the Court must look at the totality of the criminal behaviour so as to determine what is the appropriate sentence for all offences (see [31]).

  5. The parties have also referred me to a variety of other interstate appellate decisions within which these principles have apparently been examined and adopted. Whilst the parties agree with the appropriateness of these principles for the present case it seems to me there have been gently differing views as to the adjustment that ought be made. Ultimately, both agreed that the degree of backdating, concurrency and/or accumulation to be apportioned to the WA sentence is entirely a matter for the Court. However, Mr Lawrence for the Crown has raised that there is less basis for concurrency and/or backdating of the present proposed sentences because the WA offences were not close in time and thus temporally related to the NSW matters, nor were they of a particularly similarly character. On behalf of the Offender it is submitted the authorities do not necessarily confine applicability to offences that are of a like nature and/or occurring at a much closer time.

  6. I have also been referred to R v Bui [2018] SASCFC 19 where the Court, acknowledging the applicability of these principles, drew a distinction in circumstances where the criminality involved separate incursions over two and a half years rather than a spate of offending over a short period. I have considered this case and am firstly satisfied that the Offender’s criminal conduct both in NSW and WA, whilst multi-faceted, is of a like nature. The 2011 and 2012 offences included supply prohibited drug matters. They are similar to the WA matters. They involved methylamphetamine. The WA matters involved transporting and/or transferring methylamphetamine from NSW to WA. The 2013 offences, whilst not like charges, included possess prohibited drug matters. The Agreed Facts and Crown’s written submissions suggest the offences were also closely related to the Offender’s involvement in supplying prohibited drugs, albeit the predicate offence was escaping from Police.

  7. All of the offences encompass similar episodes of criminality attaching in various ways to the Offender’s immersion in the trafficking of drugs. As to any temporal disconnect and thus less overlap, I am unpersuaded and note that the NSW offences occurred in succession whilst under Police surveillance over a period extending from 18 October 2011 until 19 September 2013 and that the Offender was then eventually charged in NSW. He then apparently absconded from the jurisdiction and the WA offences occurred within five months. Notably the WA offences, as revealed in the Remarks, are described as the Offender bringing the subject drugs from NSW to WA as a middle man. The Offender was apparently again under surveillance travelling from Sydney to Perth.

  8. Without in any way intending to be trite and as properly acknowledged by the parties, the totality principle applies not just for offences committed as part of a connected and/or contemporaneous series of offences but also wherever an Offender who is to be sentenced for an offence whilst serving a sentence for some other offence whether committed roughly contemporaneously or at wider, different times. See R v Harrison (1990) 48 A Crim R 197 at 199 which was approved in Postiglione v The Queen (1990) 189 CLR 295 at 308. The parties agree with this accepted approach in the present circumstances. Overall, I am grateful to them both for their assistance and pragmatic approach.

  9. In considering these principles, I think significant weight ought also be attached to the Offender’s progress in his rehabilitation. It is significant and has been steadily and consistently increasing during the currency of his WA sentence over five and a half years. I accept his evidence which corroborates this progress and his intentions for the future. I also accept a significant state of uncertainty and suspense as to what may occur in resolution of the NSW offences, a burden which would have rested with him during his non-parole period in WA and particularly as his release date in August 2019 approached. The NSW offences are also relatively stale, occurring from seven to nine years ago. These factors together with the subjective matters to which I have already referred, require what might otherwise be a quite undue degree of leniency being extended (see Todd at 520).

  10. Accordingly I take all of these matters into account together with the parties’ helpful submissions and apply a considerable degree of concurrency together with some accumulation within the NSW offences and more specifically in conjunction with the WA non-parole period. Added to this there is appropriate acknowledgment for the custody time, agreed as being specifically attributable to the present offences, that is the nine months and six days. In so doing however, I endeavour to reflect the overall criminality of all matters and otherwise avoid what might be described as a “crushing sentence” (see R v M.A.K, R v M.S.K. [2006] NSWCCA 381).

Remorse and Contrition

  1. I accept the Offender has expressed both genuinely, personally and generally within the reports.

Further Observations

  1. Overall, Count 1 and the related Form 1 offences arose at the commencement of the Offender’s plummet into his serious addiction. It is his first supply matter, his previous drug offences being possess only. The charge itself is based on the deeming provisions and the weight towards the lower limit. The circumstances of his detection and arrest sadly reflect the commencement of his descent and subsequent spate of offences for which he now faces sentence.

  2. Count 2, a serious instance of dishonesty by deception against the background of past fraud-type matters and for which on appeal he generally avoided fulltime custody.

  3. Count 3 is the most serious; another supply. This time actual and deemed transactions and surrounded by manufacturing equipment, related paraphernalia and conduct that carried on after detection for the earlier 2011 offence. The penalty is also supplemented by the considerable amount of cash revealed in the freezer and which constitutes one of the Form 1 matters. The other, I think, less serious, essentially a part of the manufacturing enterprise, that is the other Form 1 matter.

  4. Count 4 appears to be incidental to the principal enterprise reflected by Count 3 and as with the apparatus, forms a part of the same instance of criminality.

  5. Count 5 is at the lower end and whilst serious, would ordinarily be subsumed in the overall sentence.

  6. The final matters are aggravated by the Offender being on conditional liberty and are again drug related.

  7. Count 6, obviously a separate criminal act but motivated, as with the casting aside of the various items that were later found, by an attempt to avoid detection for his ongoing drug-related activity.

  8. Count 7, the unauthorised pistol matter and related firearms Form 1 offences, are also discrete criminal acts although components, as has been submitted on behalf of the Crown, of his ongoing drug activities. The remaining charges similarly so. These, of course, were all then followed by his WA offences, again a continuation of his drug supply activities.

  9. The Offender’s conduct generally involved repeated charges of supply prohibited drugs, related cash proceeds with an apparently linked and then subsequent escape from Police and his possession of a pistol. They are all disgraceful. They are all aggravated by occurring whilst on conditional liberty. In the past he has been afforded opportunities to turn himself around not only by the Courts and our community but no doubt his family and supporters, the latter of whom still stand by him. It appears however that only now does he recognise the seriousness of his misconduct against the background of his long period of incarceration interstate, a period of time that he has apparently embraced to try and implement positive change. This is to his credit but does not discount the seriousness of his offending. Running his own drug trafficking operation, fuelling his then significant habit and committing related offences is to be condemned. He is an example of what the ravages of a drug addiction can do to a man with otherwise considerable capability, skills and intellect.

  10. The ravages of methylamphetamine in particular within our society and community is well known. It not only tears families apart and destroys the lives of individuals, but casts a wider disabling net into our community with the commission of related crimes, often being offences of dishonesty and/or violence. The possession of the pistol with the ammunition, albeit in more benign circumstances of the present case, is also serious. One need only pause for a moment to consider if such a weapon, so easily concealable with ammunition, fell into the wrong hands.

  1. Mr Thomas promotes the Offender’s efforts and current success at rehabilitation which includes his abstinence as important factors both generally and as to a foundation for special circumstances. I am reminded that he has a home to go to, returning to his parents with their support and that of his brothers. Furthermore, it is submitted that he has upskilled considerably so as to equip himself for potential employment upon release. This is bolstered by his evidence personally and is also reflected in the reports and certificates that have been provided. I accept he has demonstrated and achieved considerable inroads in his rehabilitation. These achievements are put not only as generally favourable, but also as constituents supporting a strong finding of special circumstances. I add to this his relatively young age and the recent lengthy time spent in custody which on one view could expose him to institutionalisation, particularly against the background of the repeat offending beforehand. In my view, there is more force in consideration, if not acceptance, that this relatively young man has reached what might be described as a turning point. Ordinarily for much younger people, but on this occasion is not to be criticised at this stage of his life. Courts must be vigilant not to accept those claims uncritically. There must throughout remain a principle of proportionality.

  2. To the Crown’s credit and candour which I have noted throughout these proceedings, a finding of special circumstances, particularly based on the Offender’s inroads and efforts at rehabilitation is not opposed. In light of these factors in combination together with the necessity for him to have an extended period of time in the community upon his release to continue with his rehabilitation and to reassimilate, I am satisfied that a finding of special circumstances is appropriate. There is a strong public interest in rehabilitation of offenders which not only benefits the Offender personally but our community at large. I accept that this may well be the first time he has genuinely acknowledged and committed himself to rehabilitation and the need to turn his life around.

  3. Section 3A of the Act sets out the purposes for which a Court may impose a sentence on an offender. They are:

(a) to ensure that the Offender is adequately punished for the offence,

(b) to prevent crime by deterring the Offender and other persons from committing similar offences,

(c) to protect the community from the Offender,

(d) to promote the rehabilitation of the Offender,

(e) to make the Offender accountable for his or her actions,

(f) to denounce the conduct of the Offender,

(g) to recognise the harm done to the victim of the crime and the community.

  1. Importantly, these factors include general and specific deterrence and as to this Offender, having regard to the past history of offending, the latter looms large. The solicitor for the Crown reminds me of the need for adequate punishment, denunciation and recognition of the harm done to the community by offences of this nature. I am reminded by the Crown that these are important factors. Whilst significant, I think there is a strong counterbalance by what the Offender has demonstrated in his efforts towards rehabilitation. Factors bearing on the determination of sentences often pull in very different directions and balancing all those factors involves a process of what has sometimes been called “instinctive synthesis”. I have to balance those many and different conflicting features. See R v Elias (2013) 248 CLR 483.

  2. Section 5 of the Act also requires me to be satisfied that imprisonment is the last resort and that, having considered all possible alternatives, no penalty other than imprisonment is appropriate.

  3. On behalf of the Offender it is conceded that as to Counts 1, 3, 4 and 7, the s 5 threshold has been reached. These are appropriate concessions, particularly when one considers the multitude of other offences including those on the Forms 1, occurring at around the same time. All are to be considered in this sentencing exercise. In all the circumstances I am satisfied that no penalty other than imprisonment is appropriate.

  4. In my view there does still need to be some time served in custody for the present offences. I have, however, made a significant adjustment so as to address the very compelling subjective features of this case. As I say, upon release it may well be this Offender’s last opportunity to achieve genuine and long-standing rehabilitation. This requires, as no doubt he knows, personal discipline, focus and vigilance. He, as demonstrated in the past, has been vulnerable to falling into his old habits and succumbing to the influence of drugs and/or disingenuous friends. He is someone who now presents as a man who can see a more positive and drug-free life ahead with genuine rehabilitation and the avoidance of recidivism, that is committing offences and going back to gaol. This rests in his hands and his alone. He needs to continue the inroads himself, particularly against the temptations that will arise when he is back in the community. He needs to demonstrate by application, commitment and resilience, that is toughness, that he has the capacity to maintain those inroads that were achieved in custody and keep them going when he is released.

  5. As an aside, a further aspect requiring consideration is the current COVID-19 pandemic and in particular the consequences upon those in and/or facing custody. I accept that prisoners are not able to practice that which we are required to do in our general community, that is social distancing. They are entirely dependent on custodial authorities. Furthermore, there is the added stress of reduced if not zero visits from family and/or friends. These factors would no doubt cause additional stress and concern for prisoners and their families, as it is to other members of our community at large. These are relevant factors to be taken into account in the overall sentencing exercise. See Brown (aka Davis) v The Queen (2020) VSCA 60 at [48] and whilst not binding, the helpful decision of Judge Haesler SC in this Court of R v Despotovski [2020] NSWDC 110 (15 April 2020).

  6. In all the circumstances I intend to impose an aggregate sentence. This does not mean accumulation is no longer relevant. The ultimate sentence must still reflect the total criminality and I am to ensure that the aggregation of each sentence is a just and appropriate measure of the total criminality involved. The aggregate non-parole period must also reflect the minimum period of imprisonment to be served by the Offender having regard to the purposes of justice. Again I emphasise that I am to avoid what is sometimes described in the authorities as a “crushing sentence”. I intend to make a significant backdate of the commencement date of the sentence, not only to accommodate the time served solely for these matters (nominated and agreed as nine months and six days) but also with additional time concurrent with the WA sentence so as to address these important issues of totality and related principles and authorities to which much of this sentencing hearing has been focussed. It will mean the Offender does have to serve further custody by way of an unexpired non-parole period, but then upon release serve a significant period of parole so as to facilitate, if not consolidate, his rehabilitation.

  7. Mr Deng, you are convicted on each count. Pursuant to the provisions of s 53A of the Act I impose an aggregate sentence of seven years imprisonment commencing 25 January 2017 and expiring 24 January 2024. The non-parole period is set at four years imprisonment commencing 25 January 2017 and expiring 24 January 2021. I impose a balance of term of three years commencing 25 January 2021 and expiring 24 January 2024.

  8. Pursuant to s 53A(2)(b) of the same Act and for the purposes of transparency, I must nominate the sentences I would have imposed by way of indication for each matter separately.

For Count 1, two years and six months. This includes the Form 1 offences.

For Count 2, 18 months.

For Count 3, four years and three months including the Form 1 offences.

For Count 4, three years and nine months with a non-parole period of two years and six months.

For Count 5, three months.

For Count 6, six months.

For Count 7, three years with a non-parole period of two years. This too includes the Form 1 offences.

For Count 8, six months.

  1. I confirm that I have found special circumstances pursuant to s 44(2) of the Act as earlier described, but including a combination of accumulation of sentences, turning point and the necessity for an extended period of rehabilitation and reassimilation back into the community.

  2. I confirm that the Forms 1 have been taken into account with respect to their identified substantive counts.

  3. As to Count 6, I impose the minimum statutory licence disqualification and I backdate that to commence on 30 April 2019. Should there be any need for identification of reasons I recommend that having regard to the staleness of the offence, the Offender’s custodial circumstances, the significant inroads into his rehabilitation and my view that his assimilation and rehabilitation back into the community is to be supplemented by his eligibility to obtain a valid motor vehicle driver’s licence for the purposes of his employment at least.

  4. I note the extensive number of motor vehicle and/or excavator and/or earthmoving equipment licences or tickets that he has obtained. I am assuming that to use those he will need to be the holder of a current motor vehicle driver’s licence and I do not wish, therefore, any further penalty be imposed by prevention of his ability to obtain fulltime employment of that nature if that be his wish and/or opportunity.

  5. Whilst in custody I recommend Corrective Services Commission assist the Offender:

(a) Receive counselling and treatment including relevant medication from NSW Justice Health and Forensic Mental Health Network or any related health service provider as to his health including conditions of anxiety, stress and/or depression. I direct a copy of the report of Mr Borenstein dated 20 April 2020 attach to his custodial warrant for the assistance of Justice Health;

(b) Receive counselling and treatment as to substance and alcohol abuse and relapse prevention, Think First program, EQUIPS program, Smart Recovery program, Addictions program, if deemed appropriate and/or any similar programs as available;

(c) Obtain access to educational, training, work related skills and vocational programs;

(d) As his release to parole approaches obtain assistance with appropriate residential accommodation and appropriate work and/or training.

  1. He is eligible for release to parole at the expiration of the non-parole period.

  2. Parole is subject to the supervision and guidance of the Parole Authority and as provided by the standard conditions and Regulations. Upon release to parole I recommend the Parole Authority direct the Offender accept the supervision and guidance of Community Corrections, generally and specifically as to:

(a) Identification of and relevant access to social services and welfare agencies to facilitate his assimilation back into the community and workplace;

(b) Counselling and treatment, if need be, including substance and alcohol abuse and relapse prevention, ongoing psychological treatment including, if appropriate, referral to a relevant GP for assessment and implementation of a Mental Health Care Plan, anger management and impulse control, Think First program, EQUIPS program, Smart Recovery program, Addictions program and/or any similar programs as available;

(c) Appropriate residential accommodation;

(d) Vocational, educational programs and/or work related skills programs and related qualifications.

Breach of Bond

  1. In addition to these multiple criminal charges I have before me, at the request of the parties, outstanding breach of bond proceedings. These relate to a s 9 good behaviour bond imposed by Judge Armitage of this Court and entered into by the Offender on 30 January 2012. The bond required the Offender to be of good behaviour for 18 months and accept the supervision and guidance of the then Probation and Parole Service including ongoing counselling and drug rehabilitation. The learned Judge imposed the bond consequent to hearing the Offender’s severity appeal against a fulltime sentence of 12 months imprisonment with a non-parole period of nine months as was originally imposed by a Magistrate on 6 November 2011. That offence was possess equipment to make identification documents with intent to commit an indictable offence, obtain financial advantage by deception.

  2. Having entered the bond he appeared before the learned Judge on 24 August 2012 for breach by apparently failing to attend appointments as directed his supervisor. The Judge gave him a second chance and did not revoke the bond, accepting the Offender’s word that he understood the seriousness of his obligations and his breach and that he would resume and continue with compliance. As is clear and to the Offender’s discredit, at that time he had committed or was committing the 2012 offences and the related Form 1 matters referred to above. It is of concern that he disregarded the Court Orders that were made at that stage of his life. He had been given an opportunity by the Judge to stay at liberty despite a breach and apparently trusting the Offender on his own undertaking and promise to comply and remain of good behaviour. As I say, it is trite to say that at the same time he was actually immersed in his addiction and significant drug related and dishonest criminal activity. It seems appropriate to me in the present case to confirm the breach as made out and revoke the bond. That is not opposed.

  3. Regrettably, there are no facts in the Crown bundle as to the original offence. I raised this with the parties and rather than delay proceedings, I note from a practical point of view that any consequent order would be subsumed by the substantive matters for which I have now imposed a sentence.

  4. Mr Lawrence for the Crown does not seek any consequential orders or sentence other than conviction and no further penalty pursuant to the provisions of s 10A of the Act. Understandably, that is not opposed. In the circumstances, that seems to be the way to deal with the matter.

  5. Accordingly the breach is admitted. The bond is revoked. The Offender is convicted and I impose no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

  6. For caution I will just note that all s 166 matters not dealt with are withdrawn and dismissed. That is on the Crown’s submission and by consent.

Decision last updated: 01 September 2020

Cases Citing This Decision

0

Cases Cited

10

Statutory Material Cited

6

GC v The Queen [2019] NSWCCA 241
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413
Porter v R [2019] NSWCCA 117