R v To

[2020] NSWDC 923

District Court

New South Wales

Medium Neutral Citation:

R v To [2020] NSWDC 923

Hearing dates:

15 December 2020

Decision date:

18 December 2020

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Sentenced to an effective overall sentence of 9 years with a 6 year minimum term (sentence at [94]-[96]).

Catchwords:

CRIME — Drug offences — NSW and Commonwealth offences — Attempt to possess prohibited drug — Supply prohibited drug

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code 1995 (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Jadron v R [2015] NSWCCA 241

Obiekwe v R [2018] NSWCCA 55

Olbrich v The Queen (1999) 199 CLR 270

Pham v R; Tang v R [2012] VSCA 101

R v Awraham [2019] NSWDC 341

R v De Simoni [1981] HCA 31

R v Lee [2013] NSWDC 232

R v Qutami (2001) 127 A Crim R 369

Regina v Griggs [2000] NSWCCA 33

Sultana v R (1994) 74 A Crim R 27

The Queen v Pham (2015) HCA 39; 256 CLR 550

Zhang v R [2010] NSWCCA 105

Category:

Sentence

Parties:

Crown
Jonathan To (Offender)

Representation:

Counsel:
Crown: Ms N Ojerholm
Defence: Mr E Ozen SC

Solicitor:
Crown: Solicitor for Public Prosecutions
Defence: Anne + Benjamin Law

File Number(s):

2019/00351184

Publication restriction:

No

sentence

1. Jonathan To appears for sentence with respect to three substantive counts arising from his involvement in drug trafficking.

2. One offence arises under the Criminal Code 1995 (Cth) and there are two additional offences under the Drug Misuse and Trafficking Act 1985 (NSW). There are two further State offences which have been included on a Form 1, the detail of which I will refer to shortly.

3. The Criminal Code 1995 (Cth) offence relates to an attempt to possess a commercial quantity of a border-controlled drug, namely 11.44 kgs of methamphetamine, on 7 November 2019. Such an offence contravenes section 11.1(1) and section 307.5(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or a substantial fine.

4. The two NSW drug offences each arise pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985.

5. Count 2 On the indictment relates to the deemed supply of 184.3 grams of heroin whilst count 3 in the indictment relates to a similar supply of 206.3 grams of Methylamphetamine. Such offences carry a maximum penalty of 15 years imprisonment and/or a fine. There is no standard non-parole period.

6. The two additional NSW offences on the Form 1 document attach to the supply charge in Count 3. The first offence arises under section 193B(2) of the Crimes Act 1900 (NSW) and relates to knowingly dealing with the proceeds of crime, namely $17,050. Such an offence carries a maximum penalty of 15 years’ imprisonment.

7. The second offence on the Form 1 document is the charge of supply of a prohibited drug namely 3,4-methylendioximethaphetamine (MDMA) in a quantity of 15.12 grams. Such an offence similarly arises under section 25(1) of the Drug Misuse and Trafficking Act and attracts a maximum penalty of 15 years’ imprisonment.

Facts

8. Subject to one matter of dispute, the facts were presented in a document as Agreed Facts.

9. On the weekend of 2 – 3 November 2019 a young woman, Catrina Ma, was at a party at a friend’s house in Sydney. The friend asked if he could have a parcel delivered to Ma’s house as she was at home all the time and would be able to accept the delivery. He showed a picture of the offender on Facebook to her, apparently as the person who would come and collect the consignment from her after it was delivered. Ma agreed to the proposal and was given a mobile phone with a text message from the freight courier company, DHL, already on the phone.

10. On Monday 4 November 2019, immediately after that weekend, a consignment comprising two large cardboard boxes was despatched by air from Bangkok, Thailand addressed to Catrina Ma at her address in St Johns Park, Sydney. The air waybill described the contents as “exhaust pipe, plastic air connector.” The consignment weighed 56.5 kgs.

11. The boxes arrived in Sydney on 5 November 2019. Following an examination by officers of the Australian Border Force and also NSW Police, the consignment was ascertained to contain a total of 18 motorcycle exhaust pipes. Each of the exhaust pipes contained packages which were wrapped in cling wrap and foil. The drugs contained in the packages were ascertained to be methamphetamine with a total net weight of 14.754 kilograms. The purity of the drug ranged between 74.5% and 79%. The agreed calculated pure weight of the methamphetamine was 11.441 kilograms.

12. The investigating officers replaced the drug with an inert substance and reconstructed the method of concealment within the exhaust pipes. A number of listening devices were also concealed within the consignment.

13. Catrina Ma, who had agreed to be the addressee, liaised with DHL regarding the date for delivery. She updated the friend who had recruited her regarding when the consignment would be delivered. On 7 November 2019 the consignment was delivered to Ms Ma’s St Johns Park address and Ms Ma advised her “friend” that it had been delivered. The offender then arrived at the St Johns Park residence shortly before 2:00pm the same day. He was observed to enter the premises before re-emerging about 20 minutes later and then driving his vehicle up the driveway. He left the area in his motor vehicle a short while later taking the consignment with him.

14. Police surveillance followed the offender who drove to premises at Anderson Avenue, Mt Pritchard where he drove up the driveway and out of sight.

15. The listening device which had been concealed within the consignment then recorded the offender using a handheld power drill in an apparent endeavour to drill through the pop rivets which secured part of the exhaust to the main exhaust body. The offender could be heard to become increasingly frustrated as his attempts to open the exhaust pipes were unsuccessful. At about 4:00pm, the offender phoned a co-accused, Montasir Mousa, and asked him to come around to help.

16. Mousa arrived at the premises shortly after 4:15pm and proceeded to assist the offender in attempts to break open the exhaust pipes.

17. Over the following period of about 20 minutes the conversation between the two men was recorded. In the course of the conversation the offender indicated that there were 18 exhaust pipes and he was still trying to open the first one. He said he did not know how to open it. Mousa asked, “What’s in it?” The offender replied, “I don’t know, I don’t know if it a…”

18. The conversation proceeded to describe how one would remove the top of the pop rivet. The offender was heard telling Mousa to be careful because of the contents concealed inside.

19. At one point in the conversation the offender described how heavy the boxes were when he carried them himself. The offender asked Mousa, “What did you get last time?” Mousa replied, “I got two big boxes”. The offender asked, “Like this?” Mousa replied, “It was wrapped like that, but I don’t know what was inside, I didn’t open it”. Mousa proceeded to tell the offender that if he opened them correctly he would be able to resell the exhaust pipes. The offender indicated he had already mucked one of them up. Mousa said, “yeah but I don’t think, I don’t think they really give a fuck about, you know what I mean.” The two men then discussed going to Bunnings. Mousa, apparently referring to the contents of the consignment said “What’s in it, only an O in it. So how much is this worth? Well one key of um is (inaudible) you know what I mean.” Shortly before the two men left the premises and travelled to a nearby Bunnings hardware store, Mousa was recorded saying “What’s this stuff?” The offender replied, “Aaah, nose stuff.” I will make reference to competing inferences derived from these conversations later in these Remarks.

20. Police surveillance observed the men at Bonnyrigg Bunnings and then followed them to premises at Canley Heights. The offender then drove back to the premises where he had been unpacking the consignment at Mount Pritchard where he was arrested by police later that afternoon.

21. A search warrant was executed at the Mount Pritchard premises. The premises were rented by a couple who lived upstairs. The offender was a friend of a relative of that couple and had been permitted to use the ground floor bedroom. He had been given a spare key to the premises and had used or occupied the ground floor bedroom for some months since approximately August 2019. Whether he was simply using it as a place to store and/or distribute drugs from or whether he was actually residing there for some period of time is not clear.

22. Within the offender’s bedroom police located the 19 exhaust pipes and a variety of plastic bags containing what was subsequently analysed to be prohibited drugs contained within a safe in the room. The bags containing 184.3 grams of heroin are charged as count 2 in the indictment whilst the various bags containing a total of 206.3 grams of Methylamphetamine are charged as count 3 in the indictment.

23. Later the same evening police executed a search warrant at the offender’s family residence at Wakeley. In his bedroom at his parents’ home was located a total of $17,050; a set of electronic scales; a notepad containing a handwritten ledger; and a number of bags containing prohibited drugs. The drugs were subsequently analysed and found to be a quantity of MDMA weighing 15.12 grams. The two charges contained in the Form 1 relate to the possession of the sum of money and the deemed supply of the quantity of MDMA.

24. Subsequent analysis of messages contained on the offender’s mobile phone give rise to an irresistible inference that he, along with others, was involved in the supply of quantities of prohibited drugs.

25. The majority of the messages, and indeed the inference arising from them, are not the subject of any dispute between the Crown and the defence.

26. However, two specific messages making reference to “one keg of Emily” were objected to by Senior Counsel for the offender, Mr Ozen SC, on the basis that the inclusion of that material disclosed more serious offending under NSW drug legislation than the charges which have been preferred.

27. The Court received detailed oral and written submissions from both parties with respect to the De Simoni principle. Particular reference was made to the observations of Gibbs CJ in R vDe Simoni [1981] HCA 31 at [389] where his Honour said:

“… a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.”

28. The Crown specifically disavows any reliance upon the identified phrase as being an aggravating factor with respect to the quantities of drugs that may have been involved in actual supplies.

29. The Crown, however, relies on the various text messages, including the impugned phrase, as permitting the Court to reach a view with respect to the offender’s role in the supply of drugs.

30. The specific phrase the subject of debate, and the context in which the reference was made, are, in my view, illustrative of the role played by the offender in drug distribution in a general sense. The specific charges of supply before this court relate only to the quantities of drug which were found at the premises. The figures referred to as being owed by other persons both in some of the recorded messages on the mobile phone and in the ledger which was located are similarly illustrative of his role in distribution in a general sense. The inferences to be drawn from such material is only relevant in casting some light on the nature of his possession, for the purposes of supply, of the quantities located by police. I propose in those circumstances to treat the coded references to a “keg of Emily” in the same light. In no way do they operate to increase an appropriate sentence for the matters with which he is, in fact, charged.

Objective seriousness

NSW State offences

31. The State offences, as indicated earlier, relate to the possession of a quantity of Heroin somewhat less than 200 grams and a quantity of Methylamphetamine or ‘Ice’ slightly in excess of 200 grams. The indictable quantity for both Heroin and Methylamphetamine is 5 grams. The commercial quantity applicable to both is 250 grams. It would be obvious by reference to the quantities seized that the amount of drug in each respective case was very substantially in excess of the indictable quantity and in excess of 80% of the quantity which would constitute a commercial quantity of Methylamphetamine and almost 75% of the amount which would constitute a commercial quantity of Heroin.

32. The possession of various items including a ledger, scales and a not insubstantial sum of money, together with the quantities of drugs which were seized from the safe constituted indicia of involvement in drug distribution, or as Gleeson CJ described such items in Sultana v R (1994) 74 A Crim R 27 at [28], “the implements or accoutrements of trade of a drug dealer.” The messages located in the offender’s mobile phone included requests to leave a quantity of a drug in a bag at someone else’s place for him; a message that he had to send the drugs off after some other activity; a message received asking for two grams; a query from the co-accused Mousa asking if he could do something the next day to which the offender advised him “just take it as payment for next errand”; an incoming message asking “can you guys pay first?”; a message from the offender saying “I have nose in the car”; the offender being asked by another person “what’s happening with the 2m, is that mine or yours?” to which the offender responded, “that’s yours, and what we have on tick is yours too”; and notes regarding amounts owing including “Owe Huz 2100”.

33. The irresistible inference that the combination of this material gives rise to is that the offender had possession of the charged quantities of Heroin and Methamphetamine as part of his role in what would clearly appear to be a modest or reasonably low level drug distribution network. The quantities involved and what appear to be supplies between other ongoing suppliers or distributors are consistent with a level of supply marginally up from so called street level dealers. That is not to elevate the role of the offender into a managerial or entrepreneurial level or into the mid-range of objective seriousness. It does, however, place the supply charges somewhat higher in the range of objective seriousness than an isolated instance involving lesser quantities being supplied by a street dealer or a person in a hotel or club dealing directly with users.

Commonwealth offence

34. Part 1B of the Crimes Act 1914 (Cth) sets out a range of matters to be taken into account in the sentencing of an offender for a federal offence. The overarching principle requires the imposition of a sentence that “is of a severity appropriate in all the circumstances of the offence” (s.16A(1)). The Court is required, in addition to other relevant factors, to take into account the extensive list set out in s.16A(2). The nature and circumstances of the offence (s.16A(2)(a)) in the present matter falls within a well-known and frequently observed modus operandi. Importations of prohibited drugs, or to use the correct description, unlawfully imported border-controlled drugs, occur in a wide variety of different means. Most extremely large quantities of such drugs are transported to Australia by sea-going container. Lesser, but still substantial quantities, frequently appear on Australian shores after being conveyed by air transport. Transportation by air almost invariably involves somewhat smaller quantities than many of the seizures that have arrived by sea.

35. Some importations are effected by human couriers which, as a matter of physical practicality, creates a limit on the weight of drug likely to be imported by such means. On other occasions consignments of varying weights are forwarded to Australia via the post or airfreight which, again, results generally in smaller importations than the large-scale importations by sea.

36. The quantity of drug imported is, of course, of more significance than the method adopted to procure its safe arrival in Australia. My reference to the mode of transportation is intended to simply reflect an overview of some generality with respect to the nature and circumstances of the commission of the offence. Of course, many importations involve a modus operandi whereby the drugs are received by either an innocent person or somebody recruited simply for the purpose of receipt and having nothing to do, in any organisational sense, with the hierarchy or structure behind the actual importation.

37. Unlike State legislation which attaches criminality to the bulk admixture of a prohibited drug, constitutional considerations gave rise to a necessity to ascertain the pure quantity of an imported drug. A net pure weight of approximately 11.44 kilograms of Methamphetamine comprises an amount which is some 15.25 times greater than the commercial quantity threshold which attracts a maximum penalty of life imprisonment. The quantity-based penalty regime for a range of serious drug offences prescribed in the Criminal Code of the Commonwealth differentiates between various types of border-controlled drugs according to prescribed pure weight amounts. Whilst the weight of the drug imported is clearly a relevant factor in a determination of the assessment of the seriousness of the offence, it will not in every case be the “controlling” factor relevant to an assessment of such seriousness (see The Queen v Pham (2015) HCA 39; 256 CLR 550).

38. A critical consideration is the role of the offender in the commission of the offence. In circumstances where there has been a controlled delivery of a consignment containing an inert substance following removal of the imported drugs by the authorities, a charge of attempting to possess the now absent drugs is the resultant criminal offence. Where the evidence establishes that the importation and the steps taken to effect it have occurred pursuant to arrangements made within a criminal organisation, an offender’s criminality is to be assessed by reference to his actions and to his role within the organisation (see Pham v R; Tang v R [2012] VSCA 101).

39. In some cases, such a consideration will remain unable to be resolved. The significance of assessing and passing sentence for what an offender actually did, in the absence of any proper understanding as to whether or not the acts occurred on behalf of a criminal organisation or as part of an enterprise, was exemplified by the factual circumstances in Olbrich as described by the High Court (see Olbrich v The Queen (1999) 199 CLR 270).

40. In the present matter I am satisfied beyond reasonable doubt that the importation of the border controlled drugs was organised by a criminal enterprise or organisation. The Court is, however, unable to determine the nature and extent of such organisation and the precise nature of the offender’s role and participation in the overall scheme. His role was, however, removed somewhat from being the mere recipient of the incoming consignment where he may have been perceived to be participating, in effect, as the equivalent of a mere courier whose function was to simply receive and then pass on.

41. The objective circumstances accompanying the present offender’s participation include that arrangements were made by an unidentified third party for the consignment to be addressed and subsequently delivered to Ms Catrina Ma at her St Johns Park residence. It was clearly contemplated by that unidentified third party who made the arrangement with Ms Ma that it was intended that the present offender would come and collect the consignment from her after its safe receipt by her.

34. Following his collection of the boxes, the offender attempted to break into, or to use the descriptive terminology, “deconstruct” the exhaust pipes which were expected to contain the prohibited imports. His discussion with the co-accused Mousa reveals his knowledge of a prior receipt by Mousa of a consignment and together with the other surrounding circumstances gives support to an inference that he knew that the contents were intended to be a border controlled drug. I find this to be a fact that I am satisfied of beyond reasonable doubt. I note, however, that the legislation draws no distinction with respect to penalty for an offence which is established by virtue of recklessness as opposed to the fault element of knowledge.

35. The Crown submits that where an offender seeks to be sentenced on the basis of being a courier, or being a person low in the hierarchy of the drug enterprise, the offender must establish that fact, as a mitigating factor, on the balance of probabilities. The Crown relies for that submission on the observations of the High Court in Olbrich at [280] – [282].

36. In understanding that submission in the present context, it is important to consider the factual background to the High Court’s expressions of principle in Olbrich. Olbrich physically carried in excess of a kilogram of pure heroin into Australia secreted in bottles and a design board contained within his luggage. He was charged and pleaded guilty to importing the Heroin into Australia. Olbrich contended that he should be afforded some level of mitigation because he claimed to have been a mere courier who had been recruited in Thailand to carry the goods for money. It was contended on his behalf that he was therefore less culpable than if he were a principal carrying the drugs into Australia on his own behalf. The proposition that such a factor, if it were a factor in mitigation, was required to be negated by the Crown beyond reasonable doubt, was correctly rejected by the Judge at first instance. The High Court confirmed that the sentencing judge had adopted the correct principles in such a determination. It is not insignificant to observe that Judge Howie (as his Honour then was) said in the sentence proceedings:

“The offence is one of importing narcotic goods. To the degree that a courier is given some mitigation by being less culpable for that offence than if he were a principal, it seems to me that the prisoner must prove that he is less culpable than the objective facts would otherwise indicate. Otherwise every importer of drugs would have to be treated as a courier by the Courts and by the Crown, unless the Crown could establish that he was not a courier.” (Emphasis added) (set out in the judgment of Kirby J at CLR [284])

45. The present matter throws up no such conundrum. The objective facts give rise to a finding that the organisation of the despatch of drugs from Thailand to Australia and indeed their acquisition in that Kingdom was reflective of the existence of a substantial criminal enterprise. Unlike Olbrich who had physically travelled to Thailand and who returned with the narcotic substance secreted within his luggage, the present matter involved a comparative level of sophistication in the secreting of a large number of packages within motorcycle parts. This was done by unknown persons overseas, undoubtedly pursuant to an international arrangement. The selection and use of an innocent third party as the addressee and recipient of the consignment reflected a degree of planning in Australia which was intended to reduce the risk of detection by those connected with the organisation itself.

46. The offender’s role was then to collect the boxes and, by virtue of his actions, to remove the prohibited substance, presumably in order to pass it to those behind the importation and further up whatever hierarchy existed within the organisation.

47. There is no suggestion by the Crown, nor independently arising on the objective facts, that the offender was a principal or had any role in organising the actual importation itself. His position as a supplier of drugs of the kind which is manifest in the State offences to which I have already made reference, render it possible that some of what had been imported may well have ultimately been subsequently distributed to others by him.

48. To the extent that such an intended future role might have occurred, it is not a factor which operates in aggravation of the offence with which he is charged and the Court could not be satisfied beyond reasonable doubt that such offending would necessarily have taken place. His role, in my determination, falls well towards the lower levels of responsibility in whatever criminal enterprise actually existed.

Subjective features

49. The offender was born on 4 September 1999 and had just turned 20 years of age at the time of the present offending. Whilst he did not give evidence on the sentencing proceedings himself, material touching upon his subjective background has been placed before the Court in a number of affidavits and references as well as a psychological report from Mr Sam Borenstein.

50. The offender was born in Sydney and derives from a Cambodian heritage. His father, Joseph Yin, in an affidavit sworn on 8 December 2020, indicates that he himself was born in Cambodia during the rule of the Khmer Rouge. His parents initially fled to Vietnam. When Mr Yin was around 5 or 6 years of age his family fled from Vietnam by boat. He described that they were intercepted by pirates and lost all of their valuables before being left in Thailand.

51. His parents ultimately applied for refugee visas and came to Australia in 1981 where Mr Yin attended High School. Mr Yin met his wife, Boran To, in Australia. She was also of Cambodian heritage. In due course they had five children. The offender is the eldest of the five. The other children are presently 19, 14, 12 and 11 years old.

52. The offender’s father describes what he believed was a close relationship with his son, notwithstanding that he had been working 7 days a week for the past 20 years in his own business as a tiler in order to support his family.

53. Mr Yin in his affidavit sets out a description which is redolent with optimism for the future for his son following extensive conversations with him whilst he has been in custody. Mr Yin describes his intentions to help his son to begin his own career as a sole trader in the building industry.

54. It is not inappropriate to note that an affidavit from the offender’s paternal aunt, Emily Yin (the sister of the offender’s father) describes a perception of a more difficult relationship between the offender and his father during his adolescent years. The offender’s aunt is a solicitor who is, broadly speaking, some 20 years older than the offender. She grew up having a close connection with his family and particularly with the offender himself. She described her close bond with him through his High School years and assisting him in his selection of subjects for the HSC.

55. The offender’s aunt describes the relationship that she observed between the offender and his father to have been very volatile and dramatic. She described the deterioration in the relationship between the offender and his father as having increased substantially, with regular conflicts, during the offender being in year 11 and year 12. Whilst the details are somewhat vague, she describes the offender having been kicked out of the family home on 2 occasions and having nowhere to live at that time.

56. The offender himself described his academic achievements as not being as satisfactory as he had hoped. He achieved an ATAR of no more than 65 in the HSC. Having completed the HSC in 2017 he did matriculate to the Australian Catholic University in 2018 and was enrolled in a Bachelor of Exercise and Sports Science. He worked part-time throughout 2018 whilst studying at the university.

57. I am unaware as to whether he successfully passed his exams in his first year at university although there is reference in some of the material tendered to him being in his second year at the time of the offending. He is described in the psychological report as having been employed as a waiter and barista at a local café but having been unemployed for about 6 months prior to the offences in late 2019.

58. In addition to the ongoing conflict with his father, a relationship which he had been in for approximately 3 years came to an end at around the time of the Higher School Certificate in 2017. That was described as a traumatic period.

59. The offender described a past history of occasional alcohol use from the age of 16 and subsequent involvement with illicit drugs, namely MDMA when he was 19. Noting that he was born in September 1999, if accurate, it would appear to have been sometime after 2018 that he commenced the use of such substances. He told Mr Borenstein that he was introduced to cocaine when he was about 20. He described 2019 as being “a bad year”. He apparently had a 6 month relationship which came to an end following him discovering what is described as her being “unfaithful”. The tension in the family home is said to have coincided with that event and he described having stayed with friends for a period of about 4 weeks. Whilst there is no precise detail as to when it was that he became involved in drug supply, there is a strong impression of a descent into that world during the months preceding the offences before me which occurred in November 2019.

60. In addition to the cost of illicit drugs and a debt which apparently accrued as a consequence, the offender described to the psychologist having also accrued a gambling debt. He said that he was using cocaine, MDMA and Valium as a form of self-medication against worsening symptoms of depression. Some of the clinical assessments carried out by Mr Borenstein would appear to correlate with such a diagnosis. The description in the psychologist’s report of Mr To having “lost direction in 2019” is, on any view, an understatement of his descent, as a person with no prior criminal record, into the maelstrom of criminal involvement and activity revealed in the present offences. Mr Borenstein, however, makes the legitimate point that:

“It is worth noting the offending behaviour occurred at a time when Mr To himself was navigating the latter stage of adolescence as he attempted to navigate significant stress. It is likely he was operating from a fairly regressed emotional state, and did not have coping strategies to manage worsening symptoms of depression.”

61. It is not inappropriate to observe that the involvement of the present offender in both drug use and abuse himself, and his patent involvement, to some degree, in the supply of drugs to others were matters which remained hidden from his immediate family. Both his father and aunt in their respective affidavits, together with a reference from his younger brother, who is studying a bachelor of commerce and bachelor of economics at UNSW, as well as a reference from, as well as a reference from a school friend from 6 years’ standing, reflect the complete shock at the discovery of the criminal activity of this young man.

Consideration

62. As previously noted, section 16A(2) of the Cth Crimes Act sets out factors which are required to be taken into account in determining an appropriate penalty for a Commonwealth offence. I do not propose to undertake the exercise of a tick list but will make reference to the factors of relevance in the present matter.

63. The plea of guilty was entered at an early opportunity and carries utilitarian value notwithstanding the strength of the Crown case.

64. Despite the absence of evidence from the offender himself and the reservation as articulated in R v Qutami (2001) 127 A Crim R 369 and cases following in accepting matters in mitigation advanced via third party means such as a psychologist’s report, the preponderance of material before me is consistent with the plea of guilty reflecting both a level of genuine remorse, an acceptance of responsibility, and also a willingness to facilitate the course of justice.

65. In all of the circumstances, a discount of 25% is appropriate in this matter.

66. I reach this conclusion despite the submission of the Crown that the obvious strength of the Crown case should lead to a view that in some part there was “a recognition of the inevitable”.

67. The offender reported to the clinical psychologist an increased awareness of the impact of drugs on individual lives and the broader community and evinced a determination to eschew drug use both in custody and into the future. Whilst the acceptance of such assertions may well have been able to be buttressed by corroborative oral testimony from the offender himself, I note that the experienced and well-recognised psychologist whose report has been tendered described Mr To as impressing “as an open and honest historian.” Mr Borentstein described in his report the reasons in for his conclusion to that effect.

68. The offender’s father has described in his affidavit the detail of ongoing conversations that he has had with his son during his period in gaol. The periods of dispute and conflict between them would appear to have changed substantially and, as I have described earlier, the affidavit is redolent with optimism for the offender’s future.

69. The offender’s aunt, who as I noted earlier is a solicitor, similarly deposes to the positive aspects that she has perceived in conversations with him whilst in custody. She described him having acknowledged his mistakes and expressing a desire to pursue his studies. His aunt also deposes to the interaction between the offender and his younger brother during his time in gaol. The reference from that younger brother indicates that they talk weekly. His brother describes his conclusion from the conversations that “it definitely seems like he had learnt his lesson and does not want me or my younger siblings to make the same mistakes as he did.”

70. Although a degree of guarded optimism is appropriate, on balance I am of the view that there are good prospects for his future rehabilitation.

71. As noted above, he has no prior convictions.

72. It is patently clear that the offending was part of planned and organised criminal activity. These are inherent characteristics of such offences and are not discrete aggravating factors.

73. The offender’s role in the attempt to obtain the prohibited border control drug was slightly above the lowest function in such types of offending where a person is simply paid to be the recipient while somebody else comes and collects the consignment after receipt. Such a role was carried out in the present matter, albeit it is accepted without criminal culpability, by Ms Ma. The offender’s function was to open the consignment and remove the drugs. As I have already indicated I could not be satisfied beyond reasonable doubt that his function was to do other than to pass the drugs to others in whatever hierarchy or organisation existed.

74. It is important to note that irrespective of the level of involvement reflected in the actual role of the offender, general deterrence remains an important consideration.

75. There is, of course, also a need to reflect specific deterrence although, in light of his prospects for rehabilitation, that is reduced somewhat in the present matter.

76. Such type of activity is reflected in numerous factual scenarios in a multitude of other cases which frequently come before this court for the purpose of sentence.

77. The comparative youth of such offenders in many instances is an important consideration in determining an appropriate sentence. Senior Counsel for the offender, Mr Ozen SC, made reference to the description by Mr Borenstein of the offender being not yet fully mentally developed. He made reference to Simpson J’s remarks in Regina v Griggs [2000] NSWCCA 33 where her Honour was considering, in the context of that case, which was a robbery whilst armed with a knife, the consideration of non‑custodial alternatives, notwithstanding the nature of the offence before her. Her Honour said regarding that type of consideration:

“They are particularly important when young offenders with real prospects of rehabilitation, or first time (or almost first time) offenders are before the court. Sentencing judges are generally aware that it is a very big step to commit a young offender to an adult gaol for the first time. The courts cannot ignore the fact that in an adult gaol a young offender is likely to come into contact with older and more hardened criminals; nor that established progress towards effective rehabilitation is likely to be endangered.”

Her Honour then set out the remarks of Dunford J in R v Farah, which I will not read at length. Her Honour concluded his remarks in that matter by saying:

“There must be, and is room in the proper exercise of the sentencing discretion, for a judge dealing with a young offender, particularly where he has no previous convictions and who is charged only with an accessorial offence, to extend leniency and mercy with a view to his rehabilitation to impose other than a full-time custodial sentence.”

78. I should make it clear that I do not make reference to those quotations by virtue of any conclusion that anything other than full‑time custody is, of course, appropriate in the present matter and matters of this ilk. I make reference to it simply to underscore the importance of a consideration of youth. I have had recourse to the blunt instrument, so described, or the blunt tool of the various comparative sentences which have been provided to me and to the statistics and comparatives that might be gleaned from the Judicial Commission statistics and database.

79. I make reference to a number of cases that I have perused touching upon young offenders in either their late teens or early 20s. Of course, I recognise that all comparatives turn ultimate on their own fact and that various contributing factors need to be understood, rather than simply an equation of age, quantity of drug and ultimate outcome. However, for such assistance in giving overall guidance as to range, I make reference to the following matters.

80. In sentence proceedings before Judge Pickering SC in late 2019, approximately 7 to 8 young men were involved in an attempt to obtain a massive quantity of methamphetamine which had been imported into Australia in two consignments of protein power bottles. The consignment in fact had contained in excess of 540 kgs gross of methamphetamine which on analysis was approximately 418 pure.

81. Various of the offenders assisted in unpacking the boxes and counting and weighing the bottles. Some were described as mere unpackers. Most would appear to have had little if any relevant past involvement in relevant criminal activity. Discounts varying between 15% and 20% were allowed and the sentences of which I am aware including young men named Han, Song, Khotpanya and Chau, all of whom appear to have been comparatively young men, received sentences in the broad range of 8 – 8.5 years with minimum terms of 5 to 5.5 years. Some of those matters are unreported from 13 September 2019.

82. In R v Lee [2013] NSWDC 232 Berman SC DCJ sentenced an offender who received a controlled delivery of 792.3 grams of Methylamphetamine to 5 years with 2 and a half year NPP. The quantity was just over the commercial quantity. The offender was 19 years of age and had agreed to receive the delivery and to store the consignment until collected by others for a payment of $1000. He received a modest increase on discount for assistance which together with the plea of guilty resulted in a discount of 30%.

83. In a further unreported decision of 7 November 2019, her Honour Judge Tupman sentenced two young men, Messrs Ham and Lee, with respect to an attempt to possess a commercial quantity of ecstasy. The pure amount of MDMA was in excess of 100kgs. Lee and Ham shared premises and were involved in communication with the customs freight company with respect to the consignment of what purported to be water filters from the Netherlands.

78. There was no evidence that either of the young men knew the actual quantity which was in the shipment although each of them was found by the sentencing judge, at the time of their arrest, to have realised the substantial weight of the items that they received. Each of the men were involved in the enterprise for a limited period of time prior to receipt of the shipment. Ham had become involved because of a gambling debt of around $20,000 whilst Lee also had a debt although in his case it was incurred as a consequence of his use of illicit drugs.

79. The role performed by Ham was found to be well below the mid of the range of such offences and very much at the bottom of the range. Lee was found to be more significant but still below the middle of the range. Lee was 22 at the time of the offending whilst Ham was 19. Her Honour recognised the need for significant consideration to be given to rehabilitation. Her Honour allowed a discount of 25% and imposed a sentence of 8 years with a NPP of 5 years on Mr Lee and a sentence of 6 years 9 months with a NPP of 4 years for Ham.

80. In R v Awraham [2019] NSWDC 341, a controlled delivery in that case of some 2.1 kilograms pure of cocaine, accompanied by other offences, including possession of an unregistered firearm, possession of an unauthorised pistol and supply of MDMA pursuant to the State provisions, was dealt with on sentence by his Honour Judge Weinstein SC. In the circumstances of that particular matter, in a lengthy and carefully considered judgment, his Honour imposed various sentence, in particular, seven and a half years with a non‑parole period of five years 15 days with respect to the attempt to possess the commercial quantity of cocaine, sentences of two years and three years with 18 months for the possession of the unregistered firearm and three years with one year 11 months for the possession of the pistol and two years in relation to the State supply offence. The ultimate accumulated aggregate, although I should probably describe it as a total sentence, was a head sentence of nine years with a six and a half years and 15 days non‑parole period with respect to all matters.

81. The Crown provided the Court with a number of comparative, and I use that term broadly, cases for assistance in consideration and determination. The cases provided by the Crown related to Jadron v R [2015] NSWCCA 241; (2015) 253 A Crim R 450, which was a supply of 160-odd grams of methylamphetamine. There were ongoing multiple supplies. There had been almost $80,000 in purchase price or sale price. There was a proceeds of crime offence of possession of a little less than $6,000, together with a substantial quantity of cannabis which was located. Ultimately, on the supply offending, which was, as I say, ongoing, there was a sentence of three years four months with a non‑parole period of one year nine months and two years 11 months for the proceeds crime, with one year six months with a partial accumulation by six months.

82. The Crown also provided Obiekwe v R [2018] NSWCCA 55, which had been a sentence by her Honour Judge Hock at first instance with respect to 21 kilograms bulk, that is, a purity of 17.43 kilograms, of methamphetamine which came in a consignment from China. There was evidence provided to the Court that the wholesale value ranged between $3.8 million to $4.7 million, with a street value of $13 million to $15 million.

83. The applicant had been classified as the central person in the importation hierarchy at the Australian end of the importation. He had registered an ABN. He had created an email address, created a mobile phone account using the identity of an innocent third party. He had communicated with the customs broker. He had arranged delivery and was observed to be physically watching at the delivery site. The proposition that he had a debt of about $8,000 was viewed sceptically in the circumstances of that case. Her Honour had imposed a sentence of 12 years with a non‑parole period of seven years. An appeal against the severity of that sentence was in due course dismissed.

84. His Honour Payne JA made reference to a variety of other comparatives which, for present purposes, I note and have read but to which I do not specifically make additional reference. The case is of marginal assistance in the consideration that I have to bring because of the obvious lesser role played by Mr To as compared to the circumstances of Mr Obiekwe.

85. I was also provided with Zhang v R [2010] NSWCCA 105. Zhang and his co‑offender, Fang, had been respectively sentenced by different judges in this Court. His Honour Judge Berman had sentenced Mr Zhang to 11 years with a non‑parole period of seven in respect to an attempt to possess a bulk quantity of just under 16 kilograms of methylamphetamine, which was of lower grade than is often seen and had an average purity of 66.2%, hence yielding 8.26 kilograms pure. The co-offender, Fang, had been sentenced after a trial with possession of some of the boxes which had been imported by the late Judge Sorby and was sentenced to 14 years with a non‑parole period of eight and a half years.

86. Zhang’s appeal was based on alleged disparity between the sentence that he received from Judge Berman and the sentence imposed on his co‑offender by Judge Sorby. Zhang was found to not be a mere courier. His role had included transport of the drugs. He was in contact with people overseas. He took directions and orders from people in Australia but had contact with people overseas, which tended to suggest that his role extended beyond simply doing what he was told by others. He was described as being at the midlevel of the operation and his appeal was dismissed.

87. The various factors to which I have made reference, including circumstances where it is clear that, while I have been satisfied beyond reasonable doubt that the offender expected the consignment to contain prohibited border controlled drugs, it did go so far as to enable me to come to a conclusion regarding his awareness or knowledge of the actual quantity involved. Indeed, it may well be that he was unaware of the precise drug that was involved. None of that operates particularly in mitigation but is illustrative of the fact that he was not in any sort of managerial or organisational functionary role.

88. His considerable youth, his lack of prior criminal convictions and the prospects for his future rehabilitation are important considerations. Of course, that needs to be tempered with the necessity of considering and giving proper effect to general deterrence. I am required by authority and practice to not proceed to simply aggregation a Commonwealth and State offences. In the circumstances, what I propose to do is to stagger the offences in the following fashion. With respect to count 2 in the indictment of supplying a prohibited drug, namely, heroin, that will be a sentence of two years and a non‑parole period of 12 months. The sentence for that will commence on the date that the offender went into custody, namely, 7 November 2019 and the non‑parole period will accordingly have expired on 6 November 2020.

89. With respect to count 3, supplying a prohibited drug, namely, the 206 grams of methylamphetamine, taking into account the two matters on the form 1 with respect to that matter, the sentence will be a period of three years with a non‑parole period of 18 months. I propose that that be accumulated by six months on the sentence that was imposed for count 2 and, accordingly, the sentence and non‑parole period will commence on 7 May 2020 and the non‑parole period will accordingly expire on 6 November 2021.

90. With respect to the Commonwealth offence pursuant to the Commonwealth Criminal Code, taking into account the 25% discount to which I have already given an indication, which I, of course, have taken into account in the other offending as well, there will be a sentence of eight years’ imprisonment with a non‑parole period of five years. That sentence and non‑parole period commences from 7 November 2020. Accordingly, the non‑parole period will expire on 6 November 2025 and the head sentence will expire on 6 November 2028.

**********

Decision last updated: 07 September 2021