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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Song

Details

AGLC: R v Song [2024] NSWDC 324
Case: [2024] NSWDC 324
Decision Date: 05 July 2024

CaseChat Overview and Summary

The respondent, Song, was charged with various drug offences including the supply of a commercial quantity of methylamphetamine. The matter was heard in the Supreme Court of Queensland. Song had a history of drug-related offending, including a previous conviction for importing methamphetamine, for which he was released on parole. The prosecution argued that Song's offending was aggravated by his prior criminal record and his reoffending within a short period after his release on parole. The defence sought to mitigate the sentence by highlighting a letter of apology submitted by Song, similar to one submitted in a previous case. However, the prosecution contended that the letter did not reflect genuine remorse.

The court had to determine the appropriate sentence for Song's drug offences, considering the aggravating factors of his criminal history and reoffending, and weighing these against any mitigating factors. The court needed to assess the sincerity of Song's expressions of remorse, particularly in light of the similarities between his current and previous letters of apology. Additionally, the court had to decide whether Song's prior record and the timing of his reoffending warranted an extended sentence.

The court found that Song's history of drug-related offending and his reoffending within months of being released on parole were significant aggravating factors. The court was not convinced that Song's letter of apology was a genuine expression of remorse, given its similarity to a previous letter. Consequently, the court imposed a head sentence of 7 ½ years imprisonment, with a non-parole period of 4 ½ years. This sentence reflected the gravity of Song's repeated offending and the need to deter further criminal activity.

The court ordered that Song serve a total of 7 ½ years in prison, with a non-parole period of 4 ½ years. This sentence was designed to address the serious nature of Song's drug offences, his history of reoffending, and the lack of genuine remorse demonstrated by the offender.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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