R v Sun

[2017] NSWDC 456

District Court

New South Wales

Medium Neutral Citation:	R v Sun [2017] NSWDC 456
Hearing dates:	10 March 2017; 12 May 2017
Decision date:	23 June 2017
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Form 1 matter taken into account on sentence imposed in re SEQ 001. Special circumstances found – age, 1st time in custody. The offender is sentenced to a total term of imprisonment for 6 years, comprising of a NPP of 4 years to commence on 14/5/16 and to expire on 13/5/19, and a balance of term of 2 years to commence on 14/5/19 and to expire on 13/5/21. Eligible for release to parole on 13/5/19.
Catchwords:	CRIMINAL – sentence – supply commercial quantity of methylamphetamine - participate in a criminal group and contribute - joint criminal enterprise – offender’s role - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Category:	Sentence
Parties:	Regina Bin Sun
Representation:	Counsel: Mr P Leask Mr B Walmsley QC   Solicitors: Mr M Dickinson Ms M Maltezos
File Number(s):	2015/00144761

Judgment

1. HIS HONOUR: Mr Bin Sun appears for sentence in relation to a single offence of supply not less than a commercial quantity of methylamphetamine, being a quantity referred to as being at the top end of the range of a commercial quantity before becoming a large commercial quantity: that is, just less than 1 kilogram. Such an offence is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is 20 years’ imprisonment and or 3,500 penalty units. There is also a standard non‑parole period of ten years in relation to such offences.

2. In addition to that offence, the offender asked the Court to take into account when sentencing him for that offence a further offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. That offence is one of participate in a criminal group and contribute contrary to s 93T(1) of the Crimes Act 1900, and when dealt with separately has a maximum penalty of five years’ imprisonment. There is no relevant standard non‑parole period.

3. The facts are agreed and are as follows:

4. In December 2014, police attached to the State Crime Command Organised Crime Squad established Strike Force Sylvia to predominately investigate the activities of a co‑offender, Li Wang, and his involvement in the supply of large quantities of prohibited drug. As part of that investigation, between 21 March 2015 and 28 April 2015, several controlled operations were conducted where Wang supplied a police undercover operative, “George”, a half kilogram of methylamphetamine on each occasion. He was also detected supplying small amounts of cocaine and Blackberry devices to the undercover operative. There is no evidence of the offender Bin Sun’s involvement in those offences.

5. On 14 May 2015, police arranged another controlled operation where George was deployed to meet Wang at 1pm for the purported purchase of 2 kilograms of methylamphetamine for the payment of $251,000. It is in the course of this transaction that Bin Sun’s involvement first came to light.

6. At about 12pm, three persons, Li Wang, Z Zhang and Si Ji Zhang, were seen attending the East Phoenix Dumpling Bar in the East Village Shopping Centre in Zetland. They were later seen walking around the shopping centre before Si Zhang and Li Wang entered the car park. Shortly after that the offender Bin Sun and a co-accused, Junjie Liang, were seen outside the main entrance to the complex on the corner of Defreis and Gadigal Avenues. Police observed Bin Sun loitering about 10 metres apart from Z Zhang and Liang, and then observed Zhang leave the scene and was out of sight momentarily before returning carrying a brown bag.

7. Shortly after that, police observed the offenders Bin Sun and Liang, each carrying a brown paper bag, walking into the Moore Park Supa Centre car park. At the time, Li Wang was seen seated in the passenger seat of George’s motor vehicle. Soon after Z Zhang was seen walking north in the car park with Liang and Bin Sun following a few metres behind him. Z Zhang walked to George’s vehicle and sat in the passenger seat behind the driver. The offender Bin Sun walked to the vehicle carrying the bag and entered the rear passenger seat. Liang walked towards the vehicle but hesitated and stepped backwards. S Zhang signalled Liang to walk to the vehicle. Liang then walked to the vehicle, approached the rear passenger window and thrust the bag he was carrying into Bin Sun’s hands before walking away from the scene.

8. Soon after, at the request of “George”, the offender handed both bags to “George” who was seated in the driver’s seat. Soon after, officers from the Tactical Operations Unit intervened and all accused were placed under arrest.

9. In the two bags police found a total of 1,996.9 grams of methylamphetamine. Each bag contained just less than 1 kg of methylamphetamine. It is agreed that the accused only had knowledge that he was supplying a commercial quantity of methylamphetamine in an amount approaching the large commercial quantity, that is, just less than 1 kilogram.

10. The offender was part of a joint criminal enterprise to supply a significant quantity of a prohibited drug. The facts as provided to the Court indicate that it is accepted that he had no knowledge in effect of half of the drug supplied. Nonetheless, a quantity approaching 1 kg is a significant quantity of a prohibited drug, the payment in respect of which was approximately $125,500.

11. Methylamphetamine is not distinguished from other prohibited drugs other than by quantity. However, it is evident in recent years that methylamphetamine has become a serious problem of an increasing nature for the community. There is no level of society or geographical area in New South Wales where it has not penetrated and its adverse effects on those who use it and the community itself are well known.

12. Taking part in a supply of almost 1 kg of methylamphetamine in any role is a serious matter. I accept however that there is no evidence in relation to Mr Bin Sun that he had any earlier involvement other than his attendance on that day, 14 May 2015, and that from the facts, he appears to be acting at the direction of others. For that reason, I assess his role as being less serious than the role of others present and participating that day. However, within the range of offences covered by s 25(2) relating to a commercial quantity of methylamphetamine, I regard the objective seriousness of this matter as being in the midrange of objective seriousness.

SUBJECTIVE MATTERS

13. In respect of subjective matters, the Court has before it: a presentence report under the hand of Carolyn Reid, Community Corrections officer, dated 8 March 2017, a report from Kerry Watson, psychologist with In Psych Psychological Consultants, dated 24 February 2017, a letter from Abbott Zheng Yun Shi, an Abbott at the Ding Hui Monastery, being part of the Chinese Buddhist Association of New South Wales, some documents from the Metropolitan and Remand Reception Centre Manager of Industries, Baljeet Dodyal, and an affidavit from Ching Ting Wong, otherwise known as Iris Wong, dated 8 March 2017. The offender provided a letter to the Court which is Exhibit BS3, dated 8 March 2017. In addition to that material there is a criminal history.

14. The offender was 21 years of age at the time of the offence, he is now 23. He was committed for sentence on 13 September 2016 from Central Local Court and the plea of guilty can be regarded as a plea at the earliest opportunity. He is accordingly entitled to a 25% discount for the utility of the plea alone and such a discount will be provided.

15. He was arrested on 14 May 2015 and has been in custody since that date solely in relation to this matter. He was born and raised in China, being the only child of his parents union. His mother continues to reside in China. The offender currently has no contact with his father, his parents having separated when he was approximately 14 years of age, at which time he was boarding at secondary school and only returning home on school holidays, which is apparently common in China.

16. He was brought up in a stable family environment which provided continuity, consistency and predictability. He completed the equivalent of Year 11 in China and travelled to Australia in January 2013 at the age of 18 to attend Taylor’s College, associated with Sydney University, where he completed his Year 12 equivalent. He then attended the Australian College of Management and Technology where he completed a certificate in accounting prior to commencing a diploma in accounting. He had completed two months of the course prior to his arrest.

17. Ms Iris Wong, his fiancée, has provided an affidavit. She is 22 years of age and has completed a bachelor of commerce majoring in professional accounting at Macquarie University. Her affidavit indicates that she has been in a relationship with him since December of 2014, and that he is her fiancé, they having become engaged on 2 February 2015.

18. Her affidavit indicates that she is still willing to support him, despite knowledge of his offending, and that she intends to marry him and follow him to China when able to do so to start their married life together.

19. While in Australia, Mr Sun was employed in a hospitality role for some two months in 2013, which I understand consisted of serving in a restaurant and subsequently in a sales role in real estate, later becoming a sales team leader for a period of at least some eight months in total.

20. In 2014, he established his own business called Tang Ying International Pty Limited in respect of information technology, aimed at providing an advertising service for small businesses.

21. While in custody, the documentation indicates that he has had a number of occupations and there are no adverse reports in relation to his conduct while in custody.

22. As to his criminal history, he has no criminal convictions in Australia, and also tendered on his behalf is a translated certificate from the Dianga Police Station, dated 20 February 2017, which I understand to be a county in China, certifying that in that jurisdiction, that is that county, he has no criminal history. There is no evidence of any criminal history otherwise in China, and I accept that the offender has no criminal history here or overseas.

23. The psychological report indicates that since his arrest his mental health has been characterised by depressive symptomology of clinical significance characterised by persistent despondency, feelings of hopelessness and sleeping disturbances. I note in that regard that it would be an unusual offender other than a determined recidivist who would not be depressed or despondent on being arrested for such a significant offence, and imprisoned awaiting sentence. The offender has indicated that he has no history of illicit drug abuse and although he has first began consuming alcohol in 2013 as a result of a broken relationship, he drank for only approximately some eight to nine months until he completely ceased alcohol consumption, recognising that it was detrimental to his mental and physical health.

24. He is described as having an average cognitive capacity and he has been particularly worried about the impact of his imprisonment on his mother, who resides in China. He has expressed many feelings of guilt, shame and failure to the psychologist who indicates that in her view, having stated, “I know it was my fault, I should have taken responsibility with my life, I should be careful, but I didn’t”, he was:

“appropriately honest and accepting responsibility in regards to his offending behaviour and he was able to accurately identify his offending conduct as serious and unacceptable.”

25. Ms Watson expresses the opinion that the offender is clearly remorseful and contrite. On psychometric assessment she assessed him as being in the severe range for depression and the severe range for stress and the moderate range for anxiety. She also expressed the opinion that he would avoid criminal activity in the future.

26. Abbott Zheng Yun Shi provides Buddhist services at Silverwater and states that the offender is an eager participant in meditation and prayer as well as studying Buddhism. The Abbott indicates that he hears the offender’s confession frequently and that he has indicated that he is deeply penitent about his criminal past and the suffering caused to his family and friends.

27. The offender, as indicated, has written a letter to the Court expressing his remorse and contrition in respect of his offending. Such letters to the Court have unfortunately become common and are not subject to cross-examination which generally prevents the Court from forming its own opinion as to the sincerity of the expression of remorse or contrition. As a result, such letters are not of great weight. It is also unfortunate in relation to such letters that they frequently appear to follow a pro forma of points to be made; however in the case of Mr Bin Sun, as a result of all of the material that is before the Court, rather than simply his letter, I am prepared to accept that he is genuinely remorseful and contrite in relation to his offending.

28. I accept, as referred to in the presentence report, that he is a low risk of reoffending. I also accept that there is a reasonable prospect of rehabilitation.

29. I do accept the submission made by the Crown, Mr Dickinson, this morning that to a certain extent Mr Sun appears on the presentence report to have been endeavouring to diminish his role or moral culpability in respect of the offending. However, he has accepted the agreed facts and I will sentence him on the basis of the agreed facts and the other material before the Court.

30. For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and I take into account all of the matters that I have so far referred to and of course I am cognisant of the content of s 21A(2) and (3). In sentencing an offender, the sentence must reflect the objective seriousness of the offence and ensure that any time the offender spends in custody reflects all of the circumstances, including the need for both general and specific deterrence, as well as the fundamental purpose of punishment, the protection of society. I am satisfied in relation to this offender that both general and specific deterrence are important factors to take into account.

31. In addition, I take into account the maximum penalty provided of 20 years which indicates that offences of this nature are regarded very seriously by the legislature, and also the fact that a standard non-parole period of ten years is provided, which is of course more relevant to a defended matter rather than where there is a plea of guilty. However, it remains a matter to which the Court should have regard, not as a “tram track” but as a “guidepost”.

32. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

33. Indeed no submission was made on the offender’s behalf to the contrary by Mr Walmsley QC. Mr Walmsley has submitted that because of the offender’s lack of criminal history and lesser role that the matter could be dealt with by way of a sentence which would effectively mean that the time already served since being arrested would represent the non-parole period. I do not accept that submission; in my view the significance of the offending conduct would not be reflected by such a course.

34. Mr Bin Sun, would you please stand. You are convicted in relation to the offence of supply not less than a commercial quantity of methylamphetamine, being a quantity slightly less than 1 kilogram.

35. In respect of that offence, and allowing for the 25% utility discount and taking into account all of the matters that I have referred to, plus the additional offence contained on the Form 1 of participating in a criminal group, contributing to the criminal activity, you are sentenced to a non-parole period of four years with a balance of term of two years: that is, a sentence of six years with a non‑parole period of four years. The sentence will commence from the date of your arrest, 14 May 2015. You will hence be first eligible for parole on 13 May 2019. The full term will expire on 13 May 2021.

36. I have found special circumstances, being your age and the fact that this is your first time in custody, as warranting a variation in the statutory relationship between the non-parole period and the balance of term by reducing the non-parole period to provide for a longer period of parole. Whether you are released on or about 13 May 2019 will be a matter for Corrective Services and the appropriate authorities. It is not an automatic release on that date. Much will depend on how you conduct yourself while in custody but the earliest date that you will be released will be on or about 13 May 2019 at the expiry of the non‑parole period.

37. I note that I have taken into account that the offender is in Australia, and separated from his family and that English is not his first language. However, in view of his studies, I have no doubt that he has a reasonable command of the English language, and in any event it is unfortunately the fact that there are now present in New South Wales prisons a significant number of persons whose first language is Mandarin, as is the offender’s.

Is there anything I have omitted?

MALTEZOS: Not from me.

DICKINSON: No, your Honour.

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Decision last updated: 05 March 2019