R v Song

[2024] NSWDC 324

District Court

New South Wales

Medium Neutral Citation:

R v Song [2024] NSWDC 324

Hearing dates:

5 April 2024, 5 July 2024

Date of orders:

5 July 2024

Decision date:

05 July 2024

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Head sentence of 7 ½ years with a non-parole period of 4 ½ years, at [161].

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity — methylamphetamine

SENTENCING — Aggravating factors — Record of previous convictions — Offending committed whilst on conditional liberty — Reoffending within 9 months of release on parole for prior methamphetamine importation offence — Letter of apology from offender similar to previous letter of apology provided to Court in previous offending — Judge not satisfied genuine expressions of remorse

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, 253 CLR 58
Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
Callaghan v R [2006] NSWCCA 58
Chiarlini v R [2023] NSWCCA 227
Ebrahami v R [2019] NSWCCA 273
Kiraz v R [2023] NSWCCA 177
R v DW [2012] NSWCCA 66
R v Joseph Sultana (1994) 74 A Crim R 27

Texts Cited:

Nil

Category:

Sentence

Parties:

Rex (Crown)
Kevin Song (Offender)

Representation:

Counsel:

J Stanhope (Crown)
I Lloyd KC (Offender)

Solicitors:

Director of Public Prosecutions (NSW) (Crown)
Lyons Law Group (Offender)

File Number(s):

2023/00094150

Publication restriction:

Nil

JUDGMENT

1. Kevin Song appears for sentence with respect to one substantive count of supplying not less than a large commercial quantity of a prohibited drug, namely methylamphetamine. Such an offence contravenes s 25(2) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of life imprisonment. Parliament has specified a standard non-parole period of 15 years. Both the maximum penalty and the standard non-parole period operate as guideposts or yardsticks in the instinctive synthesis required in determining an appropriate penalty.

2. Two additional serious offences have been placed on a Form 1 which the court has been asked to take into account in passing sentence for the principal substantive offence. The first offence on the Form 1 is similarly a contravention of s 25(2) of the Drug Misuse and Trafficking Act 1985, namely supplying the prohibited drug, methylamphetamine. However, the quantity supplied in relation to this charge was 490 grams which is more than the commercial quantity but less than a large commercial quantity. Accordingly, it attracts a maximum penalty, if prosecuted separately, of 20 years imprisonment and a standard non-parole period of 15 years.

3. The second offence placed on the Form 1 is an offence of possession of property suspected to be the proceeds of crime, namely Australian currency in an amount of $41,500. Such an offence contravenes s 193C(2) of the Crimes Act 1900 and carries a substantially lesser maximum penalty, namely 3 years imprisonment.

FACTS

4. The factual background to the offending has been placed before the court in a Statement of Agreed Facts.

5. The Agreed Facts indicate that a Strike Force had been formed which specifically targeted the present offender, Kevin Song, and a co-accused Jae Son. I will refer to the co-accused as Jae. Surveillance device warrants were obtained in January 2023, which authorised police to use tracking devices and recording devices with respect to both the offender and his co-accused.

6. Jae lived in a multi-storey apartment complex at Sydney Olympic Park. At approximately 9:30 am on 22 March 2023, Song drove to Jae’s apartment complex in a Honda motor vehicle registered in his mother’s name. A short time later, Song drove into the garage area of the apartment complex where he was joined by Jae. Contained within the Honda were three plastic bags, each of which contained approximately 490 grams of methylamphetamine.

7. The Agreed Facts include conversation between the offender and his co-accused, clearly indicating that there was a listening device secreted within the Honda. The offender asked if it was alright to use Jae’s car and provided Jae with one of the plastic bags containing methylamphetamine. The offender told Jae “…that’s for someone else. Only one.”

8. Jae got out of the Honda and walked to his own vehicle in his designated car space within the garage area. He placed the bag of methylamphetamine in the driver’s side footwell of his Mercedes hatchback before returning to the Honda.

9. The two remaining bags of methylamphetamine were secreted in a home-made hidden compartment in the boot of the Honda. Access to that hidden compartment required removal of the spare tyre in the boot. Sounds heard by police, which were being transmitted from the secreted surveillance device in the Honda, were consistent with the bag which was given to Jae and then placed in his Mercedes, having first been obtained by the offender from the hidden compartment in the boot.

10. Shortly before 10:00 am, Song and his co-offender Jae left Sydney Olympic Park in the Honda. Song told Jae to text the buyer and tell him that their estimated time of arrival was 11:56 am. Song told Jae to ask the purchaser if he would be ready at 12:00 pm and to let him know that they were already on their way.

11. Shortly after leaving Sydney Olympic Park Song drove to Newington Marketplace where both he and Jae got out of the vehicle and had a brief conversation with two unknown males. They then resumed their drive and proceeded to Newcastle.

12. After arriving in Newcastle at approximately midday, the two men initially went to a McDonalds store and then subsequently to the vicinity of an address in Hunter Street, Newcastle.

13. The offender parked the Honda in Hunter Street and purchased a parking ticket. Both men walked around for about five minutes before returning to the Honda. The offender then drove towards the Woolworths carpark in East Newcastle.

14. Whilst driving the vehicle, he had a conversation with Jae in which he expressed concern that he was under police surveillance.

15. He then parked the car in the Woolworths carpark and they both walked to a lift. About 10 minutes later they returned to the Honda briefly, before walking back to the lift.

16. Notwithstanding that the drugs had not yet been delivered, the police decided to intervene. Both men were stopped and arrested at approximately 1:15 pm.

17. The offenders both claimed to have come to Newcastle for the purpose of a house inspection. Police searched the Honda and located three concealed compartments which had been created in different parts of the vehicle.

18. Photographs depicting the location of the compartments within the vehicle have been included in the Crown Tender Bundle (Exhibit #1). The compartments appear to have been crudely made by cutting out metal rectangular portions of the bodywork with either an angle grinder or hacksaw and creating a hinged door behind which items could be secreted. The hidden compartment in the boot of the car, which was concealed behind the recessed spare wheel, contained two bags of methylamphetamine and also a plastic bag containing $37,500 in cash. The two bags of methylamphetamine each respectively contained 491.5 grams and 491.9 grams at a purity of 78%.

19. The possession of this quantity of methylamphetamine for the purpose of supply is the basis for the substantive count of supplying a large commercial quantity of the prohibited drug. A large commercial quantity of methylamphetamine is specified as 500 grams.

20. A second hidden compartment near the centre console of the vehicle contained two mobile phones and $4,000 in cash. A third hidden compartment in the centre console contained an additional two mobile phones.

21. Both men were arrested and subsequently charged. The offender has remained in custody, bail refused, since 22 March 2023. His co-offender is understood to be awaiting trial.

22. Police subsequently obtained a warrant and retrieved the bag of methylamphetamine from the footwell of the Mercedes hatchback at Sydney Olympic Park. It was ascertained to contain 490 grams of methylamphetamine, also at a purity of 78%.

23. The supply of the bag of methylamphetamine retrieved from the Mercedes, which was just under the large commercial quantity of 500 grams, constitutes the offence of supply which has been placed on the Form 1 document. A commercial quantity of the drug is specified as 250 grams.

24. The two sums of money located in the Honda, namely $37,500 in the compartment in the boot and $4,000 in the hidden compartment in the console, together constitute the offence of dealing with the proceeds of crime in an amount of less than $100,000. This has similarly been placed on the Form 1 document.

OBJECTIVE SERIOUSNESS

25. On behalf of the offender, Mr Lloyd KC submits that the objective seriousness of the offender’s involvement in the supply of the large commercial quantity falls below the mid-level of objective seriousness. In Mr Lloyd’s submission, despite the police surveillance apparently having been conducted over several weeks prior to the arrest on 22 March 2023, the subject offences on 22 March 2023 appear to have been the only offending committed during that period.

26. The circumstance of the seizure of the mobile phones and the absence of any evidence contained on the phones revealing other drug supply involvement was emphasised by Mr Lloyd as supporting the proposition that the offending was, in effect, a “one off”. I should indicate that that phrase is my own, Mr Lloyd having submitted that this was the “only offending”. Mr Lloyd also submitted that the supply offences are all “deemed supplies”, there being no evidence of actual drug supplies on the part of the offender.

27. The Crown submitted that although there was no evidence about how the offender came to be in possession of the methylamphetamine, he had physically supplied one bag to the co-accused Jae to keep in his vehicle while they travelled to Newcastle for the purpose of supply of at least one of the two remaining bags, if not both, to a prospective buyer.

28. While the role of Jae is somewhat unclear, the evidence clearly revealed that the offender arrived to collect Jae with slightly less than 1.5 kilograms of methylamphetamine already in his possession, and with the intention that the drugs be on-supplied to at least two purchasers.

29. The Crown pointed out that there was no evidence as to who had negotiated the supply of the two bags which were taken to Newcastle, but the offender directed Jae to communicate with the prospective recipient and to confirm their estimated time of arrival in Newcastle.

30. In the Crown’s submission, the offender must have known some contact details for the intended recipient and where to deliver the drugs.

31. The presence of four mobile phones in two of the hidden compartments, the bundle of cash in the compartment near the console, namely $4,000, and the further amount of $37,500 in the hidden compartment in the boot, were factors inconsistent with the offending conduct being a “one off”.

32. In addition to these identified features, the presence in the motor vehicle of the home-made, or at least home-constructed, “hidden” compartments and the location within those compartments of mobile phones, the ownership of which was denied by the offender, and the use of such compartments for the concealment of quantities of the drug and the bundles of money, are themselves features which are consistent with what Gleeson CJ described in R v Joseph Sultana (1994) 74 A Crim R 27 as the “accoutrements of trade of a drug dealer”.

33. It is important to bear in mind that such factors do not operate to aggravate the offending which is the subject of the charges before the Court. They do, however, operate to deprive the offender of leniency to which he might otherwise be entitled, if in fact it were a “one-off”.

34. Were the offending conduct, in fact, found to be a “one-off” offending, in the Crown’s submission the objective seriousness is “close” to the middle of the range.

35. The use of classifications with the somewhat elastic concepts of low range, mid- range and high range, and the somewhat “grey” areas as to where such ranges either overlap or converge, involves some fluidity of concept. In some circumstances the differences in description might properly be viewed as semantic when one is considering just where the mid-range starts and finishes. The concept of something being “close to the middle range” is itself a somewhat imprecise description.

36. To the extent that Mr Lloyd KC’s submission is that the offending falls within a low range, I do not accept that is an appropriate assessment of the objective seriousness.

37. The offender had collected, albeit from an unidentified source, three bags of methylamphetamine with each containing just under half a kilogram. The weight of each bag being effectively 10 grams under the large commercial quantity is unlikely to have been accidental.

38. As previously mentioned, the bags were to be supplied to at least two proposed recipients, one of whom was located in a city some two hours north of Sydney.

39. I am of the view that the offending conduct by Mr Song falls within a broadly conceived mid-range, albeit, to the lower end of a range so described.

AGGRAVATING FACTORS

40. The Crown has correctly pointed out a number of factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which operate as aggravating factors. Of significance, is the fact that the offender has a prior conviction for participating in a Commonwealth drug trafficking offence which involved a large quantity of a prohibited drug pursuant to Commonwealth legislation, namely 541.2 kilograms gross of methamphetamine (as methylamphetamine is described in Commonwealth legislation).

41. The pure quantity, which of necessity is required to be identified in Commonwealth matters, was 418.4 kilograms. The gross quantity was 78% pure. I will return to the detail of that offending in due course.

42. The second aggravating factor identified by the Crown pursuant to s 21A(2)(j) is that the present offending was committed while the offender was on conditional liberty. He was subject to parole at the time until 5 June 2025.

43. The Crown also identifies a factor under s 21A(2)(e), namely that the offence was committed in company of another person. It is clear that the offender and Jae were acting pursuant to a joint criminal purpose.

44. The Crown submits that the circumstance of aggravation under s 21A(2)(n) also has some effect. The offender drove a not inconsiderable distance to deliver the drug to a pre-arranged recipient at a pre-arranged location and time. In the Crown’s submission, which I accept, although the offender may not have been responsible for all of the planning and organisation, his participation in taking custody of the drug and undertaking to deliver it formed a significant part of the whole of the intended transaction.

45. The use of the custom-made “secret compartments” and the presence of multiple mobile phones and the cash located in the Honda, are supportive of a finding that this was a part of planned and organised criminal activity.

46. In addition, it would appear to be common ground that the offence was committed for financial gain, notwithstanding the precise amount of payment or reward remains unknown.

47. To the extent that the offence being committed for financial gain and in company with another person has some influence on the assessment of objective seriousness, I should make it clear that I am cautious to avoid any element of double counting.

FORM 1 MATTERS

48. As indicated earlier, there are two matters which have been placed on a Form 1. The first additional charge is the supply of a commercial quantity of methylamphetamine arising from the provision of one of the bags containing 490 g of methylamphetamine to his co-accused to be placed in the co-accused’s Mercedes motor vehicle. It would appear to have been given to the co-accused for safe-keeping prior to its on-supply to a third party.

49. Similarly to the two bags taken to Newcastle, the drug supply was of a high purity, namely 78%. The quantity was almost double the specified “commercial quantity” of 250 grams, and very close to the “large commercial quantity” of 500 grams.

50. The penalty for this offence, if prosecuted separately, is a maximum term of 20 years imprisonment with a standard non-parole period of 10 years.

51. The second matter placed on the Form 1 related to the possession of $41,500 in cash located in the hidden compartments of the offender’s vehicle. As noted earlier, the offence of possessing goods which are suspected of being the proceeds of crime carries a maximum penalty of 3 years imprisonment.

52. As set out in the Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, per Spigelman CJ at [42], the court takes the additional offences into account “with a view to increasing the penalty that would otherwise be appropriate for the particular offence”.

53. The court does so by giving greater weight to the need for personal deterrence and also to the community’s entitlement to extract retribution for serious offences.

PRIOR OFFENDING

54. In March 2017, the offender was arrested and charged with respect to his involvement in an importation of more than a commercial quantity of methamphetamine.

55. I should note that methamphetamine, a prescribed border-controlled drug under the Commonwealth Criminal Code Act 1995, is the same drug as methylamphetamine, as it is named under the New South Wales Drug Misuse and Trafficking Act.

56. The offence in March 2017 related to an importation of approximately 541 kg gross of methamphetamine which, on analysis, was determined to be in excess of 418 kg of pure methamphetamine.

57. The drug had been contained in large plastic bottles which purported to be Isopure, a health and weight-loss protein powder. The consignment was contained in cardboard boxes which were plastic-wrapped on timber pallets. They had been forwarded to Australia by sea-freight from Long Beach, California in the United States of America.

58. The consignment was intercepted by Australian Border Force officers when it arrived in Australia in February 2017. After the drugs had been detected, a substitution was effected, and the methamphetamine replaced with sand by forensic officers of the Australian Federal Police.

59. Following delivery of the consignment to industrial premises in Smithfield, police surveillance monitored the arrival at the premises of the present offender, Kevin Song, and approximately half a dozen other young men of Asian heritage.

60. The apparent task to be undertaken by Kevin Song and some of the other men in attendance was to unpack the consignment and to check the contents.

61. In the course of unpacking the consignment, it became clear to those inside the warehouse that there had been either a rip-off or a substitution and that the material in the bottles was in fact sand. Shortly after that fact became obvious, police moved in and effected numerous arrests.

62. Kevin Song was charged and in due course pleaded guilty to one offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug contrary to the relevant provisions of the Commonwealth Criminal Code. The offence carried a maximum penalty of life imprisonment.

63. Song entered a plea of guilty and was entitled to a discount of 25%. He was sentenced together with Mr Andrew Han, who was one of the other young men at the warehouse attempting to possess the drugs which had been imported. Han and Song had travelled to the premises together in a car with another person, David Chau. The sentencing judge, Judge Pickering SC, focused to a very considerable extent on the role of each of the two offenders.

54. There was no evidence that either was a principal in the organisation behind the importation, nor that either of them knew the precise weight of the border-controlled drugs that they had gone to unpack. The sentencing judge found that both of the offenders were relatively young and were each effectively of prior good character.

55. Both offenders wrote letters of apology to the Court. The letter of apology from Kevin Song was reproduced, in part, in the Remarks on Sentence:

“Yet I cannot apportion blame to anyone but myself. The greatest punishment has been letting down my family and bringing shame upon them and it pains me to be separated from my family for such a prolonged period. Detachment from my friends and family has shaped an overwhelming sense of emptiness and it has been hard to find consolation or hope, only grief. Remorse and regret have been constant companions and are unfaltering in reminding me of the mistakes I’ve made and where my life is situated at this present time. The uncertain future I now face frightens me at such a critical point and age, where I should be laying my structures and my future self, has not become an adversity.”

66. The sentencing judge found that this was “a really articulate outlining of the position you find yourself in.”

67. The Sentencing Assessment Report, a copy of which has been included in the present proceedings in the Crown Tender Bundle, indicated that Mr Song had told the author of that report that he had been offered a “financial benefit to participate in his part of the offence.”

68. Notwithstanding that statement in the Sentencing Assessment Report, the sentencing judge, in giving consideration as to why a person of prior good character and otherwise prior exemplary behaviour in the community, would have become involved in the commission of the offence, said: “it may also be simply an issue in relation to financial aspects, there is just no evidence about that that can confirm it to any significant degree.”

69. The sentencing judge found that Kevin Song’s “insight” into his offending assisted him in concluding that there were “positive prospects of rehabilitation and of not reoffending in the future.” A sentence of 8 years and 3 months was imposed, after allowing for the discount of 25%, with a non-parole period of 5 years and 3 months. The sentence was backdated to the date of arrest, 6 March 2017, meaning that Song was eligible for parole on 5 June 2022.

70. For completeness, I should note that Andrew Han, following a discount of 20%, received a head sentence of 8 years with a non-parole period of 5 years.

SUBJECTIVE FACTORS

71. The offender did not give evidence on the sentence proceedings before me. Documentary subjective material was tendered on his behalf. This included a handwritten letter of apology by the offender himself. It was tendered without objection.

72. It is, however, not an affidavit, nor has it been given on affirmation or oath. It has similarly not been the subject of cross-examination. I bear in mind the reserve with respect to the contents of that document about which the Court of Criminal Appeal repeatedly reminds this jurisdiction.

73. A psychological report was prepared by Dr John Albert Roberts dated 20 March 2024 to which I will make detailed reference shortly. Included in the Defence Tender Bundle are a number of references together with hospital clinical notes and a number of certificates with respect to courses completed by the offender in custody.

74. The offender was born in Australia to Korean parents in November 1992. His parents separated when he was in primary school. He is an only child and describes having had minimal contact with his father. His mother worked as a real estate agent. His mother remarried when he was aged 9 or 10. In 2020 his mother was diagnosed with lung cancer and the marriage broke up.

75. The offender reported having obtained an ATAR of 79.5 in the Higher School Certificate. He attended Macquarie University and commenced a Bachelor of Commerce degree majoring in International Business. The offender advised Dr Roberts that he had subsequent employment in the area of sales, information technology and marketing.

76. I should note in passing that his NSW criminal record indicates that he was charged with possessing a prohibited drug and stating a false name or address to police in August 2013 when he was 21 years of age. He received a section 10 bond with respect to the possession charge and a modest fine with respect to the traffic matter.

77. In 2015, shortly after his 23^rd birthday, he was again charged with possession of a prohibited drug. He was convicted and fined with respect to that offence in the Local Court.

78. In March 2017, he was arrested and charged with respect to the importation involving the Commonwealth commercial quantity of methamphetamine to which I have already made reference.

79. During his period in custody following his sentence for the Commonwealth offence, he received two internal infractions, namely, 14 days off buy-ups in October 2019 for creating or possessing goods and a further 14 days off buy-ups in June 2021 for possession of tobacco or an e-cigarette.

80. He was released to parole on 5 June 2022.

81. In his account provided to the psychologist, the offender made reference to his involvement in the MERIT program between 2014 to 2016.

82. The offender described to Dr Roberts having participated in his current offending behaviour due to being under financial pressure. He said that his financial difficulties related to day-to-day expenses. He described having had a girlfriend for a period of 3 months during his time back in the community.

83. Dr Roberts noted that the offender denied any involvement in gambling. However, a psychological report prepared for the earlier Commonwealth proceedings by Ms Anne-Marie De Santa Brigida makes reference to Mr Song having told her that he had started playing poker machines at the age of 20. He initially played once a week which gradually increased. Between the ages of 21 to 24 he said he was spending approximately $100 per week on gambling.

84. Ms De Santa Brigida had predicted in that earlier report that there was a low risk of re-offending.

85. Dr Roberts expressed the opinion that a psychiatric diagnosis would attract the DSM-V diagnosis of a substance use disorder.

86. Dr Roberts noted that Mr Song expressed remorse in regard to the offences which he had committed. Dr Roberts noted that Mr Song “assures me that he would never engage in the risk of reoffending.”

87. I do not propose to set out in full the letter of apology from the offender. He expresses his sincere apologies and acknowledges how regretful he is for the mistakes he has made. He expresses an understanding that the consequences of his actions have affected not only himself but “most importantly the community itself.” He described his period of incarceration as having given him the opportunity to self-reflect upon his life choices and ultimately his decision-making processes. As with his earlier Commonwealth offence, he described “an offer to help assist my financial situation” as being the basis for his involvement. He describes his most recent experience as being “a huge awakening call for me and moving forward I would like to say I will aim for a positive future away from crime.”

88. It is not inappropriate to note that in his letter of apology and remorse provided to the court in 2019, he expressed extremely similar sentiments.

89. I should note that the Crown tender bundle includes a Pre-Release Report prepared at the Mary Wade Correctional Centre in January 2022 by the Senior Community Corrections Officer in the Silverwater Parole Unit, Ms Jennifer Priest.

90. That report confirmed an offer of post-release employment and his intention to associate with a generally pro-social peer group. He expressed responsibility for his role in the original Commonwealth offending, that is in the importation matter, and he said he had been solely focused on earning what he referred to as “quick money”. He claimed in the interview with the Parole Unit that his promised remuneration had been $1,000.

91. However, he also stated that at the time “he was not struggling financially and just viewed his actions at the time of” [as] “a way of making ‘quick money’.”

92. At the time of the assessment for pre-release, he was assessed as a Medium- Low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). The recommended conditions of his release included non-association with his co-offenders. The report also stated:

“Additionally, given Mr Song was part of a conspiracy to import illicit substances, he would benefit from conditions that he must not use drugs or associate with anyone who uses drugs or associate with anyone who is involved in the importation or manufacture of illicit substances.”

93. The defence tender bundle also included a letter of reference from the offender’s mother, Ms Myung Sun Namkung. She indicates her belief that with the right support “he will continue to rehabilitate himself”. She also expresses that the offender is extremely regretful with remorse and shame.

94. A discharge summary from the Royal Prince Alfred Hospital was also tendered to corroborate references to the offender’s mother having had a lung cancer diagnosis in 2020.

95. A reference was also tendered from Yeree Kim who describes having known the offender “since birth”. She describes having known the offender “for 29 years in various capacities.”

96. Ms Kim said that in her experience, “Kevin has consistently displayed characteristics of a responsible and reliable friend and son.” She similarly described the offender’s feeling of deep remorse for his actions. She asks the court to take into consideration the offender’s expressed remorse.

97. A reference has also been provided from the Chaplain at the Clarence Correctional Centre. The Chaplain, Teresa Olid-Pryer, had been able to observe the offender’s participation in the Positive Lifestyle program over a period of five months. She felt that he was developing a strong sense of responsibility and a genuine concern for the well-being of others.

98. She found him to be open to Christian values and beliefs and expressed trust that he would do his best in the future to be a productive and law-abiding member of society.

99. In a second letter dated 21 March 2024, Chaplain Olid-Pryer certified that the offender was currently participating in the Alpha course at Clarence Correctional Centre. The course had commenced at the end of February 2024 and was going to take 13 weeks to complete. The Alpha course is a series of interactive sessions that create a safe and honest space in which prisoners can explore the big issues of life and faith. The Chaplain expressed an opinion that the offender had shown growth with a deepened awareness of the meaning of Christian life and its purpose.

100. Three additional character references were also tendered from three friends of the offender: Jin Peter Pak, Thomas Chun Soo Kim, and Joel Shin. Each of them spoke of his good character, as it appeared to each of them through their lengthy periods of friendship with him. Two of them had known him over a period of 15 years and the third had been friends with him since primary school.

101. Mr Pak, in his reference dated in November 2023 describes the present matter as “a one-off unusual incident.” Each of them asks the court to take into account the otherwise good character of their friend.

102. Also included in the defence tender bundle were a number of Certificates with respect to courses completed by the offender whilst in custody. These include the Salvation Army Positive Lifestyle Program under the supervision of Chaplain Olid-Pryer dated 24 February 2024; a Certificate 1 in Hospitality from TAFE NSW dated 20 September 2023; a transcript of the topics completed to a competent standard with respect to the Certificate 1 in Hospitality; and a Certificate of Participation as a Barista completed as part of the Hospitality course.

103. The defence tender bundle also included Case Note Reports from NSW Corrective Services. These include confirmation that the offender had tested negative to the presence of any drugs when urinalysis had been carried out in June 2020 and July 2021 during the course of his earlier sentence. The notations in those Reports also included that confirmation of the revocation of parole from the Commonwealth Attorney-General could be found in the electronic documents system. That notification was dated in November 2023.

COMPARATIVE CASES AND STATISTICS

104. Counsel for the offender, Mr Lloyd KC, and Mr Stanhope on behalf of the Commonwealth Director of Public Prosecutions, have each provided assistance to the court by way of reference to the Judicial Commission statistics and a number of comparative cases.

105. While acknowledging the “blunt instrument” of the statistical graphs, they do provide a broad overview of the range of sentences imposed in past cases for offending which has been charged under the same legislative provision.

106. While the statistics can vary quite substantially depending upon the filters which are applied, the head sentences imposed in cases involving a large commercial quantity, a plea of guilty, prior similar offending with custody, and additional matters contained on a Form 1 range between 3 years and 16 years. The application of these filters yields the results from 50 cases. More than 60% resulted in head sentences between 6 and 9 years and almost 50% in head sentences between 7 and 9 years.

107. Non-parole periods, utilising the same filters, reveals a range between 2 years and 9 years.

108. Clearing those filters reveals that the range for all sentences imposed pursuant to the same section is even larger, with head sentences in 467 cases ranging from 2 years up to 18 years. The range with respect to non-parole periods is similarly larger, ranging between 6 months and 12 years.

109. As I have already said, the breadth of these ranges clearly confirms the appropriateness of the. repeated description of a “blunt instrument” in the Court of Criminal Appeal.

110. The comparative cases to which reference was made included Chiarlini v R [2023] NSWCCA 227. The offender had posted a parcel containing a total of 1.978 kg of methamphetamine from a Post Office in Sydney to an address in Western Australia. The street value of the drugs was $360,000.

111. A search of his premises revealed the presence of $10,850 and two mobile phones, one of which was encrypted.

112. Chiarlini was charged with one offence of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine. As is clear from the present matter, such an offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

113. He was also charged with an offence of dealing with property suspected of being the proceeds of crime, namely the $10,850 in cash. That offence was placed on a Form 1.

114. The offender was a foreign national who was in Australia on a student visa. He had had an upbringing in Europe which gave rise to Bugmy considerations, and a psychologist’s report expressed an opinion regarding a causal link between ongoing and chronic psychiatric/psychological conditions and the offending behaviour.

115. In the District Court, the offender was sentenced by Turner DCJ to 5 years and 3 months with a non-parole period of 3 years and 2 months. An appeal against severity was dismissed by the Court of Criminal Appeal.

116. In Kiraz v R [2023] NSWCCA 177, the offender acquired drugs on 10 occasions from a “dial-a-dealer” supply syndicate. On nine occasions, the drug supplied was a quantity of methylamphetamine, which was acquired by the offender for the purpose of on-supply to others in his own right. The aggregate quantity of methylamphetamine was 740.8 grams. He pleaded guilty to one count of supplying a large commercial quantity.

117. A separate count of supplying 500 mL of gamma-butyrolactone, which was the drug supplied on the tenth occasion, was placed on a Form 1. Other offending included on the Form 1 included possession of a cannister of capsicum spray, supply of approximately 200 grams of methylamphetamine and dealing with proceeds of crime ($4,100 cash).

118. The indicative sentence with respect to the supply of the large commercial quantity of methylamphetamine, taking into account the matters on the Form 1, was 6 years with a non-parole period of 4 years. A separate offence of possessing a prohibited weapon, namely a taser, received an indicative sentence of 3 years with a non-parole period of 2 years.

119. The aggregate sentence was 8 years with a non-parole period of 5 years and 4 months.

120. The offender was assessed as being akin to a “middle-man” and the objective seriousness of his involvement was found to be “just under the mid-range level.” A challenge to the severity of sentence was rejected by the Court of Criminal Appeal. Hulme AJ (Beech-Jones CJ at CL and Fagan J agreeing) held that the sentence was “within the acceptable bounds of a legitimate exercise of the sentencing discretion.”

121. It should be observed that the primary focus on appeal was with respect to the aggregate sentence and the notional degree of accumulation bearing in mind the principle of totality.

122. In the present matter the Crown also referred to Ebrahami v R [2019] NSWCCA 273. In August 2017, police were called to the vicinity of a home unit in Parramatta after neighbours heard loud noises coming from the unit where the offender lived. Prior to police arriving, the offender left the apartment building. He was observed to be wailing and to have a bloodied face. When police arrived, they found him seriously injured with a fractured nose, in a distressed state and clearly drug-affected. He was found in possession of 858.8 grams of methylamphetamine with a purity of approximately 80%. He was also in possession of $44,130 in cash.

123. He was charged with deemed supply of more than a large commercial quantity of methylamphetamine and separately, with the proceeds of crime offence relating to his possession of the cash. He entered a late plea of guilty and was given a 20% discount.

124. The judge at first instance, Judge Colefax SC, gave an indicative sentence of 9 years and 7 months with respect to the drug supply and an indicative non-parole period of 6 years and 3 months. For the proceeds of crime offence, the indicative sentence was 3 years and 7 months. The aggregate sentence was 11 years and 6 months, with a non-parole period of 7 years and 6 months.

125. The Court of Criminal Appeal determined that, taking into account the 20% reduction, the starting point for the supply offence had been 12 years imprisonment and 4 and a half years for the proceeds of crime offence.

126. By reference to the quantity and purity of the drug, noting that there was no evidence about the offender’s role in relation to actual supply, Colefax SC DCJ had assessed the objective seriousness as “slightly below the mid-range”.

127. On the appeal against severity, Hidden J, Leeming JA and Davies J agreeing, found no fault with the assessment of objective seriousness.

128. However, following an analysis of some seven comparative cases, Hidden J found that the indicative sentence for the drug supply offence and the ultimate aggregate sentence sat well towards the top of the range of sentences in the comparable cases. However, for the most part those cases, which are set out in Hidden J’s judgment at [38], involved quantities greatly in excess of the prescribed large commercial quantity for the drug concerned.

129. The Court was persuaded that the aggregate sentence in Ebrahami was manifestly excessive. Hidden J proposed indicative sentences of 7 years with a non-parole period of 4 years with respect to the supply charge and 2 and a half years as an indicative sentence for the proceeds of crime. The appeal was allowed and an aggregate sentence of 8 years with a non-parole period of 5 years was imposed.

DETERMINATION

130. The offender is entitled to a 25% discount following his entry of an early plea of guilty.

131. Implicit in the submission by Mr Lloyd KC that each of the offences of supplying methylamphetamine were “deemed” supplies, was an unstated inference that a deemed supply is somehow of less criminal culpability than an actual supply. I do not accept that suggestion, or implicit suggestion, as a matter of first principle.

132. However, notwithstanding the submission these were deemed supplies which feel within the definition of “supply” by virtue of the quantity of the drug involved, an analysis of what in fact took place leads to the irresistible conclusion that the offender was involved in the process of supplying drugs which were originally in his possession.

133. The first bag of methylamphetamine was physically supplied to the co-accused to keep in the co-accused’s motor vehicle for on-supply to a third-party purchaser.

134. The remaining two bags of methylamphetamine then remained in the hidden compartment of the offender’s motor-vehicle while he drove for more than 2 hours from Sydney to Newcastle for the undoubted purpose of supplying the drugs to a purchaser or purchasers. He gave instructions to his co-accused to contact the purchaser in Newcastle to advise of their likely time of arrival.

135. The fact that the drugs were possessed for the purpose of supply was readily established without the necessity for any reliance on the deeming provisions in the Drug Misuse and Trafficking Act.

136. For the reasons which I have already expressed with respect to the letter of apology and the expressions of remorse conveyed in that letter, and the similar expressions of remorse in the psychologist’s report as well as in the numerous letters of reference, I entertain a degree of reservation, if not scepticism, about such expressions of remorse.

137. Whilst acknowledging that there is some element of remorse and contrition implicit in the plea of guilty, the similarity between the expressions of remorse and contrition conveyed to Judge Pickering SC in 2019, and again expressed in the Pre-Release Report in 2022, when viewed alongside the material provided to this court, would amply justify a conclusion that a positive finding regarding the prospects of rehabilitation may be a triumph of optimism over experience.

138. I view the offender’s prospects of rehabilitation to be extremely guarded.

139. Mr Lloyd KC has submitted the court should be satisfied on the available evidence that the present matter was a “one-off.”

140. To the extent that such a submission invites fact-finding on the balance of probabilities as a matter in mitigation, I am unable to reach such a conclusion on the balance of probabilities.

141. The circumstances observed by the police clearly indicate intended supplies of bags of methylamphetamine to at least two separate purchasers.

142. The circumstances of the creation of the hidden compartments in the offender’s vehicle, the presence of a total of $41,500 in cash and of four mobile telephones concealed in the hidden compartments, all constitute the indicia of a person involved in the supply of drugs.

143. It is, however, important to note that the possession of such items does not aggravate the charged offence of supply. They operate simply to deprive the offender of the benefit of such leniency that might be extended in the event that his commission of the offences was truly able to be established to be a “one-off”.

144. For the reasons already set out I do not accept Mr Lloyd’s submission in this respect.

145. In accordance with the observations of the High Court in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, 253 CLR 58, the Crown in its written submissions did not advocate for any particular length of sentence. The Crown pointed to the comparative cases to which I have already made reference as providing appropriate assistance and guidance to the court in determining an appropriate outcome.

146. Mr Lloyd KC on the other hand, nominated a non-parole period of 4 to 4.5 years as an appropriate disposition of the sentencing discretion. With respect to an appropriate head sentence, he submitted that the court would certainly find special circumstances and, implicitly, a larger ratio above the non-parole period of more than 25%.

147. Mr Lloyd KC also advocates that the court would find matters addressed by Dr Roberts as reducing the moral culpability of the offender. Dr Roberts, based on a modest history of drug use outlined by the offender, expressed an opinion that there had been a Substance Use Disorder which was in remission as a consequence of incarceration. He also expressed an opinion that the presence of a Personality Disorder would dissipate with maturity. He thought that the propensity for aberrant behaviour would diminish with the effluxion of time.

148. Dr Roberts did not attribute a causal connection between any identified mental issues and the offending conduct. On the contrary, he identified financial issues as the driving force in the commission of the current offences and also in the previous Commonwealth offending.

149. In the circumstances of the present offending occurring within a comparatively short period of time following the offender’s release from custody while he was still subject to parole, and his conduct in the present matter being totally at odds with his previously expressed remorse regarding his involvement with drugs in the Commonwealth matter, I am not satisfied that his moral culpability is reduced.

150. I am, however, satisfied that the need for specific deterrence is underscored.

151. General deterrence also has a significant role to play.

152. I am satisfied that there is no alternative to the imposition of a term of imprisonment. Taking into account, in accordance with the observations of the Court of Criminal Appeal in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146, the two matters contained on the Form 1, and the 25% applicable discount, there will be a head sentence of 7 and a half years.

153. Taking into account the offender’s still comparatively young age, the potential risk of institutionalisation, and the need for ongoing supervision in the course of rehabilitation, I do find special circumstances which warrant a variation of the statutory ratio.

154. There will be a non-parole period of 4 and a half years.

155. The offender has been in custody since the date of his arrest on 22 March 2023.

156. He is currently serving the balance of parole with respect to the Commonwealth sentence of 8 years and 3 months which was originally imposed by Judge Pickering SC on 14 June 2019.

157. Without examining the detail of the tortuous Commonwealth legislation which governs the calculation of an ultimate release date where an offender is returned to custody following a breach of the conditions of their Commonwealth parole, it suffices to observe that the non-parole period of 4 and a half years for the present matter will exceed any potential release date with respect to the earlier Commonwealth sentence.

158. There is an undoubted discretion to backdate a sentence to commence either at the time of the apprehension of an offender for more recent events or, in circumstances where some allowance needs to be made for time spent in custody as a consequence of a revocation of an earlier parole or to consider the principle of totality where another sentence is being served, to a date within that period which takes cognizance of the separate consideration of there having been a breach of the conditions of parole or other discrete criminality: see Callaghan v R [2006] NSWCCA 58 at [21]–[23]; R v DW [2012] NSWCCA 66 at [79].

159. The Commonwealth parole was revoked on 29 April 2023.

160. Accordingly, I propose to backdate the sentence to commence on 29 October 2023. That date recognises that the offender has been in custody for approximately 15 ½ months since his arrest, that his parole was revoked approximately one month after his arrest, and that he is currently serving the Commonwealth sentence.

161. The formal orders of the court are as follows:

1. Kevin Song, you are convicted.

2. You are sentenced to a non-parole period of 4 years and 6 months which will commence on 29 October 2023 and expire on 28 April 2028 at which time you will become eligible for release.

3. I find special circumstances. The additional term of 3 years will expire on 28 April 2031.

4. The overall effective sentence is a head sentence of 7 and a half years with a non-parole period of 4 and a half years.

Decision last updated: 06 August 2024