R v Zhang

[2018] NSWDC 481

District Court

New South Wales

Medium Neutral Citation:	R v Zhang [2018] NSWDC 481
Hearing dates:	27 April 2018
Decision date:	18 May 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – need for a longer parole period to allow the offender to deal with his drug problem and reintegrate into the community. Form 1 offence (SEQ 2) taken into account on sentence imposed in respect of SEQ 1, below. Sentenced to a term of imprisonment of 7 years and 8 months comprising a NPP of 5 years and 6 months to commence on 14 May 2015 and to expire on 13 November 2020, and a balance of term of 2 years and 2 months commencing on 14 November 2020 and expiring on 13 January 2023.
Catchwords:	CRIMINAL – sentence – supply prohibited drug, more than large commercial quantity, methylamphetamine – Form 1 matter - knowingly participate in criminal group and direct activities – offender’s role - limited assistance - subjective matters
Legislation Cited:	Drug (Misuse and Trafficking) Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v the Queen [2013] HCA 37 R v Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Regina Zhengyi Zhang
Representation:	Solicitors: Crown: Mr A Poulos, Defence: Mr M Mantaj, Mr A Faro
File Number(s):	2015/144759

Judgment

1. HIS HONOUR: Zhengyi Zhang appears for sentence in respect of an offence of supply prohibited drug, not less than a large commercial quantity, contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. The quantity was 1,996.9 grams of methylamphetamine. The maximum penalty provided for such an offence is life imprisonment and/or 5,000 penalty units. There is an applicable standard non-parole period of 15 years.

2. In addition, when being sentenced in respect of that offence, he asks the Court to take into account a further charge contained on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The additional matter is knowingly participate in a criminal group and direct activities.

3. The facts are agreed and are as follows:

4. In December 2014, police attached to the State Crime Command Organised Crime Squad, commenced Strikeforce Sylvia, an investigation into a co-accused, Li Wang, and his involvement in the supply of prohibited drugs. As part of this investigation, authority to conduct a controlled operation was granted and a surveillance device warrant issued in respect of the co-accused Wang. At the time the co-accused resided at premises in Norton Place, Zetland. Wang is the registered owner and user of motor vehicle BSA-64G, a black Mercedes Benz sedan.

SUPPLY PROHIBITED DRUG

KNOWINGLY PARTICIPATE IN A CRIMINAL GROUP AND DIRECT ACTIVITIES

5. About 12pm on 14 May 2015, the offender Zhengyi Zhang and co-offenders Li Wang, Si Ji Zhang and Ziyan Tang, met at East Village shopping centre, Zetland, where they attended the East Phoenix Dumpling Bar. East Village shopping centre is bounded by Defries and Gadigal Avenues and the Eastern Distributor and Cooper Place.

6. After lunch, Tang separated from the group and walked around the centre alone. Wang, Z Zhang and S Zhang walked around the centre for approximately an hour before Li Wang and S Zhang walked to the carpark area of the complex. Z Zhang met with Junjie Liang and Bin Sun outside the main entrance of the complex, situated on the corner of Defries and Gadigal Avenues.

7. About 1pm, Wang and S Zhang entered vehicle BSA-64G, which was parked in the underground carpark of the East Village shopping centre and travelled to the Moore Park Supercentre carpark. During this time, Z Zhang, Liang and Sun loitered on the eastern footpath of Gadigal Avenue. Liang and Sun stood approximately 10 metres from Z Zhang for most of the time. On a few occasions Z Zhang indicated to Sun to stand away from him whilst waiting on the street. During this time, Z Zhang appeared to look down the street and continually monitor his mobile phone.

8. About 1.15pm the offender walked across Gadigal Avenue, out of sight. Moments later, the offender walked back towards the eastern footpath, carrying a bag. Seconds later, Liang and Sun were seen, both in possession of a brown coloured bag each, and the offender, without a bag.

9. The offender, Liang and Sun walked to Moore Park Supercentre carpark, which is a short distance from Gadigal Avenue. Liang and Sun were seen to walk a short distance behind the offender. During this time physical and electronic surveillance monitored Wang meeting with a police undercover operative, seated in a vehicle.

10. A short time later, S Zhang exited vehicle BSA-64G and approached Wang, who was seated in the passenger’s seat of the operative’s vehicle and appeared to have a conversation. S Zhang walked to the southern entrance of the carpark, where he met with the offender. S Zhang and the offender walked north, through the carpark, with Liang and Sun following metres behind each other, both still in possession of a brown bag.

11. The four co-offenders congregated in the vicinity of vehicle BSA-64G. At one point the offender and S Zhang entered the operative’s vehicle and engaged in a conversation about the proposed supply of 2 kilograms of methylamphetamine. This conversation was electronically recorded.

12. Shortly after, Wang exited the operative’s vehicle and approached the vicinity of the co-accused before returning to the vehicle. Moments later, S Zhang approached the vehicle and had a conversation with Wang, who was seated in the passenger’s seat of the vehicle. Moments later, S Zhang walked towards the three co-offenders and indicated with his hand for them to walk over to the operative’s vehicle. The offender and Sun walked in the direction of the vehicle. The offender raised his hand and indicated to Sun to stop. Sun stopped approximately four metres from the vehicle.

13. S Zhang and the offender walked to the passenger’s side of the vehicle. The offender entered the vehicle and sat in the rear seat, behind the driver’s seat. Sun walked to the vehicle carrying a brown bag and entered the rear passenger’s seat of the vehicle. Liang walked towards the vehicle, however, hesitated and stopped metres from the vehicle, stepped backwards before S Zhang indicated for Liang to walk to the vehicle. As he was doing so, S Zhang walked to the eastern wall of the carpark, out of view.

14. Liang approached the vehicle and handed Sun the brown paper bag through the open door, and walked towards the vicinity of S Zhang, who was standing near the eastern wall of the carpark. Sun handed the two brown bags to the undercover operative, who was seated in the driver’s seat. During this transaction Wang and the offender were present in the vehicle.

15. Wang and the operative then exited the vehicle. At this point, police attached to the Tactical Operations Unit intervened, detaining the offenders and arresting them.

16. Located within each brown bag were 997.2 grams and 999.7 grams of methylamphetamine respectively. Also located in a grey bag were five BlackBerry Smart phones. The drug was analysed and confirmed to be methylamphetamine.

17. Wang, the offender and Sun were conveyed to Surry Hills Police Station, where they participated in electronically recorded interviews. The offender declined to answer questions asked by the detectives, as was his right. He was then charged with the offences now before the court.

18. The offence involved the offender taking a significant role in relation to the distribution of a substantial quantity of a prohibited drug, being just short of twice the quantity qualifying as a large commercial quantity, that is, equal to or more than one kilogram of methylamphetamine. The offender took an active role and directed others, as is admitted by the matter contained on the Form 1 and, in addition, the content of a statement provided by him for the purpose of the prosecution of Junjie Liang, being part of Confidential Exhibit 2.

19. The statement itself, at para 2, states:

“I am making this statement after a promise held out to me by the Director of Public Prosecutions that no information given in it will be used in any criminal proceedings against me in any court in New South Wales, except in respect of the falsity of my statement or for the purposes of establishing the falsity of evidence given by me as a witness.”

20. Despite this statement being given for the purpose of assistance in respect of Liang, and that paragraph contained as referred to, Mr Mantaj, solicitor for the offender, requested on 27 April 2018 that the Court take the whole of the statement into account as the offender had adopted it in his evidence-in-chief. That is referred to at pp 23 to 24 of the transcript of 27 April 2018.

21. The statement makes clear that the offender was responsible for arranging for the supply of the methylamphetamine and that he, in the short period that he was not subject to surveillance, before being seen to return carrying a brown bag, had in fact, taken delivery of the methylamphetamine from other persons who attended in the vicinity, as a result of arrangements made by him, those persons said by him to have arrived in a taxi, being an Asian male and an Asian female that he did not know and who he states were to then wait for him to return with some $200,000 as a result of the supply to the undercover operative.

22. In his recent written submissions, dated 7 May 2018, Mr Mantaj submits as follows:

“As was recorded in his Honour’s remarks on sentence in respect of the co-offender Si Ji Zhang and also noted in the decision of the Court of Criminal Appeal (at 9), it was an agreed fact in the

co-offender’s proceedings that Si Ji Zhang and this offender ‘were the facilitators of the sale of prohibited drug and in control of the transaction’.

That statement does not appear in the agreed facts in respect of this offender and it is submitted that, having regard to all of the evidence in the offender’s case, whilst he was certainly facilitating the transaction in control of certain aspects of it, he cannot be said to be in control of the entire transaction.”

23. The statement of the offender made for the purpose of the prosecution of Liang indicates that this offender was responsible for arranging the provision of almost two kilos of methylamphetamine for the purpose of the supply. From his statement it appears that Si Ji Zhang was responsible for finding someone who wished to purchase such a quantity. That is, in effect, between the two of them, they arranged both the purchase and supply and the sale of the methylamphetamine.

24. In those circumstances, it is clear that the offender was a facilitator of the obtaining and sale of the prohibited drug and significantly in control of the transaction, together with Si Ji Zhang.

25. I assess the objective seriousness of the matter as being at least in the mid-range and the offender as having a significant role in relation to that offending. 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.

26. There are now an extensive number of matters that come before this Court, whether it sits in the city or in country areas, that have some relationship to the use or supply of methylamphetamine. It is well known that it can cause drug-induced psychosis and paranoia and it is well known that users who are adversely affected in that manner are known to engage in violence for no ostensibly good reason, even without provocation. The drug has become a scourge on our community.

SUBJECTIVE MATTERS

27. In respect of subjective matters, the Court has available a Pre-Sentence Report under the hand of Chris Baker, Community Corrections officer, dated 25 January 2018; a report from Mr Borenstein, psychologist, dated 22 September 2017; and, in addition, the offender and his mother, Wen Hui Yang, gave evidence on sentence, on 27 April 2018. The subjective matters are drawn from that material.

28. The offender was 21 years of age at the time of the offending and is now 24 years of age.

29. In addition, I should say, the Court has available the offender’s criminal history, which indicates that he has never been convicted of a criminal offence and a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, dated October 2017. I note that the Pre-Sentence Report refers to him during his time in custody, being approximately two and a half years at the time the report was written, as not being a management problem, having only one internal charge of a minor offence in September 2015, in respect of which he was cautioned. The offence is recorded as being “create possess prohibited goods”. I am of the view that that breach of the prison regulations is of no significance in relation to the sentence to be imposed in respect of this matter, noting, of course, that it might simply relate to the creation or possession of tobacco or alcohol.

30. Mr Zhang was brought up in China, initially by his father and then by his paternal grandparents and finally by his maternal grandparents. His mother immigrated to Australia when he was about four years of age. His father was reportedly a violent alcoholic and his father’s parents were apparently not much better, providing him with no fond memories. His mother eventually managed to sponsor his move to Australia when he was 12 years of age, and he currently holds a resident return visa.

31. Following his initial move to Australia, he returned to China when 14, due to, in part, a poor relationship with his step-father. However, a year and a half later his step-father had died, and he returned to live with his mother. His mother informed the pre-sentence officer that she blamed herself for the hard life that her son had suffered after she had left China, and she, in her evidence, confirmed that. She has indicated that she will offer him all the support that he now needs when released.

32. The offender’s education to a level equivalent to Year 9 to 10 took place mainly in China, leaving a boarding school there in his later teens. From there on, he embarked in a career in hairdressing in China and also upon his return to Australia. He was unemployed at the time of his arrest, due to poor time keeping and related issues and he intends to return to hairdressing when released.

33. As to his abuse of prohibited drugs and/or alcohol, he reported that he used alcohol to party every day with friends but that his use was not problematic and that he could stop at any time. In relation to his illicit drug of choice, methylamphetamine, he stated that he had used the substance for approximately two years, after returning to Australia, at a cost of approximately $200 per week. He stated that he used the drug with friends and felt as though his life was changing for the better when he used it. However, he indicated that he does not wish to use the drug again and would be willing to be assessed for counselling and support. While he gambles on poker machines, he does not have a problematic use of them.

34. He indicated to the pre-sentence officer that he felt bad about what has happened and he was assessed as a medium risk of re-offending. It is apparent that he did not have the most supportive upbringing, being without any apparent positive familial support until his move to Australia. He has, since moving to Australia, struggled to adapt to a pro-social community life, commencing the abuse of alcohol and illicit drugs in his late teens with like-minded associates, leading to his involvement in the current matter.

35. While in custody, he witnessed the death of another prisoner, who committed suicide by jumping to his death from one of the buildings in the presence of the offender, who was then asked to assist in translating the dying prisoner’s words from Mandarin to English. Mr Borenstein opines that this has caused him a degree of post-traumatic stress, sleep disturbances and nightmares and sleep paralysis. He has had some psychological assistance whilst in custody in that respect.

36. He informed Mr Borenstein of a degree of violence used by his father to others and as well as to himself. Mr Borenstein opines that the offender’s behaviour at school, as reported by him, was consistent with oppositional defiance disorder and conduct disorder. He apparently frequently truanted, stole from the family and was involved in fights. He has had a lack of male mentors or positive influences throughout his childhood and adolescent development.

37. He has had one long term relationship of approximately two years. Up to the time of his arrest in relation to these matters he was living with her at Burwood, and he described her as being demanding, in that she was requesting him to provide the funds for her to live a more luxurious lifestyle than they were enjoying. The offender cites this as the reason for his participation in committing this offence, that is, to obtain the finances to support his girlfriend and no doubt himself in a more luxurious lifestyle. That may be an explanation but it is not an excuse for serious offending of the nature concerned here.

38. Testing on the depression and anxiety stress scale indicates that he appears normal for symptoms of depression and anxiety and only a mild to moderate degree of stress. That is not unusual for a person residing in custody, awaiting sentence.

39. While he had a troubled upbringing, it is not of such a nature as to call into play the factors referred to in Bugmy [2013] HCA 37, 2 October 2013, such as to lower his moral culpability for the commission of this offence.

40. He was arrested on 14 May 2015 and has been in custody since that date, solely in relation to this matter. He was committed for sentence on

41. 7 September 2016 from the Central Local Court and is accordingly entitled to a discount for the utility of the plea of 25 per cent, as referred to in Thomson and Houlton (2000) 49 NSWLR 383.

42. Exhibit 2, the confidential exhibit, indicates that the offender has given an undertaking to give evidence in relation to the co-offender, Junjie Liang. Exhibit 2 contains both the undertaking and affidavit from Scott Cook, Commander of the Organised Crime Squad, and a three-page report authored by Detective Senior Constable Emma Davison and endorsed by Detective Inspector Stuart Sweeney, as well as the statement I previously referred to dated 9 March 2017.

43. In February 2017, the offender’s legal representatives indicated to the police that the offender was prepared to provide assistance in return for an affidavit of assistance in respect of future sentence proceedings. The statement was provided on 9 March 2017 and it is described in the officer’s report as having,

“outlined his involvement and specific information in relation to the co-accused, Junjie Liang and his knowledge of the supply transaction dated 14 May 2015. The information supplied was detailed and specific. The contents of the statement provided are credible and will be relied upon as evidence against the co-accused Junjie Liang during the trial commencing on 23 July 2018. The information supplied in the statement is consistent and is partially corroborated with prosecution evidence. Investigators believe this statement will assist in the prosecution case against Junjie Liang, in particular the ‘knowledge’ aspect in which Junjie Liang has indicated as his defence.”

44. The offender was clearly in a position to be able to give considerable detail in relation to the organisation of the supply transaction on 14 May 2015, including information relevant to the participation and role of each of the other offenders. Indeed, he was also in the position to be able to provide information in respect of the person or persons that he had arranged to supply the almost two kilograms of methylamphetamine.

44. Of note in relation to his offer of assistance is that he specifically indicated to investigators that he would not give evidence against any other accused if they were to plead not guilty, other than Junjie Liang. Although he provided some information in relation to a male who was involved in the supply and information of prohibited drugs via parcels through the mail, the information supplied was vague and broad, and the investigators were unable to identify that male or verify the information supplied by the offender.

45. What is evident, despite the references in the statement of 9 March 2017 to a male from Hong Kong known as “Jack” but who “changes his name a lot”, the offender provided no information that led to the arrest of any person in relation to this offence or any other offence. His assistance, in the circumstances, is very limited compared to what might reasonably be expected he was capable of providing.

46. On any version of the facts, Junjie Liang was the most minimally involved participant in the offence. While the report from the investigating officers indicate that they “believe this statement will assist in the prosecution against Junjie Liang, in particular the ‘knowledge’ aspect in which Junjie Liang has indicated as his defence”, an examination of the statement by the offender indicates that he is in fact unable to provide any significant evidence in relation to Liang’s knowledge, that is, participating in a drug deal, beyond that which was already evident from the surveillance carried out by police.

47. In the statement he refers to his going to collect the methylamphetamine from the Asian male and female who had arrived in a taxi and then returning, after collecting the methylamphetamine, across the road to where Bin Sun and Liang were, although he details a conversation when he returned with the two bags in the presence of Bin Sun and Liang as being “There is two kilos here. We will look after the stuff so we are not robbed like the movies. Bad people rob bad people. Before I see the money do not deliver the stuff.” Bin Sun replying, “Okay, I know.”

48. His statement continues,

“The male, Liang, was looking at me when I was talking and appeared to be paying attention to what I was saying. I was speaking in Mandarin. I was speaking to Bin Sun and the male in my normal voice. I did not whisper. Bin Sun and the male were arm’s length away from me. I was holding the handle of the brown paper bag. Bin Sun and the male Liang and I was standing on the footpath 30 metres from the shopping centre entrance. I handed the brown paper bag to Bin Sun. Bin Sun opened the bag and looked inside. Bin Sun said, ‘There are two bags in here’. Bin Sun retrieved one bag from the brown paper bag and handed it to the male Liang. Both bags had a handle and were open at the top. Bin Sun said to the male Liang, ‘I’ll give one to you.’ The male Liang took hold of the bag.”

50. They then carried out the delivery as previously referred to. He said that,

“Bin Sun and the male Liang “walked behind me, each carrying a bag. I met S Zhang, followed him through the carpark. Bin Sun and the male Liang were still behind me, each carrying a bag. I told Bin Sun and the male Liang to ‘take a walk and wait for my text message’. I was arm’s length away from Bin Sun and the male Liang when I told them to wait. Bin Sun said, ‘Okay’. The other male Liang looked at me and said nothing. Both Bin Sun and the male Liang were both carrying a bag which contained the drugs.”

51. At no time does he suggest either before the transaction or during the transaction that Liang was informed that they were to carry out a drug supply, or that Liang at any time looked in either bag, which might have then led to him having specific knowledge of the contents. In my view, the assistance relied on by the investigating officers to demonstrate knowledge of Liang of the prohibited drug is little more than as available by way of inference from the material available from the police surveillance that is referred to in the facts.

52. In those circumstances, I assess the assistance of being of a limited and minimal nature, although it is of some assistance. In those circumstances, I would propose to allow 5 per cent discount for the assistance, giving a combined discount for the utility of the plea of 30 per cent. Such a discount has been allowed.

53. It is normal to specify the amount of assistance relating to past assistance and that relating to future assistance. In this matter, I do not regard the provision of the statement as being worthy of a specific discount for past assistance, considering its limited nature, and I would attribute the whole of the 5 per cent discount for assistance to his future assistance by giving evidence at the trial of Liang, if that becomes necessary.

54. I accept that the offender has expressed remorse, both in his evidence and to his mother and as evident from the content of the Pre-Sentence Report and the report of Mr Borenstein. I accept that he is genuinely remorseful and contrite for his participation in this offence.

55. I also accept the pre-sentence officer’s opinion that he is a medium risk of re-offending, noting that his evidence is that he has not used prohibited drugs since being taken into custody, and as I perceive it, the risk in relation to this offender of re-offending is that when released, if he returns to the use of prohibited drugs, he will no doubt again be tempted to finance his use by the commission of further offences.

56. I accept that there is at least a reasonable prospect of rehabilitation and a low prospect of re-offending.

57. I have taken all of those matters into consideration in determining the sentence to be imposed on the offender. I am of course entirely familiar with the sentences that I previously imposed on Li Wang, Ming Wu, Bin Sun and Si Ji Zhang and I have taken into account those sentences in relation to the issue of parity and, in particular, the sentence imposed in respect of Si Ji Zhang and I am fully familiar with the points of discernment by way of contrast between this offender and those offenders.

58. For the purposes of sentencing, the court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 and I am cognisant of the aggravating and mitigating factors as referred to in s 21A(2) and (3) of that Act. Any sentence imposed must of course reflect the objective seriousness of the offence, as well as reflecting the need for both general and specific deterrence and meeting the fundamental purpose of punishment: that is the protection of society.

59. Offences of supplying prohibited drugs are of significant concern to the community, which is of course why the legislature has provided for a maximum penalty in relation to an offence such as this as life imprisonment. And, although not strictly applicable where the sentence is a result of a plea of guilty, the standard non-parole period remains a relevant guidepost; it is, of course, a significant standard non-parole period of 15 years imprisonment.

60. I am satisfied, in relation to this offender that both specific deterrence and general deterrence are important matters to take into account. I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate and of course so much was conceded by Mr Mantaj on sentence.

61. Taking all of those matters into account, including the total discount I have referred to of 30 per cent, Mr Zhang, would you please stand?

62. You are convicted in relation to the offence of supply prohibited drug not less than a large commercial quantity, being 1,996.9 grams of methylamphetamine.

63. You are sentenced to a non-parole period of five years and six months, which will date from the date on which you went into custody, being 14 May 2015. You will be first eligible for parole on 13 November 2020.

64. The balance of term is two years and two months. The total term is a term of imprisonment of seven years and eight months, which expires on 13 January 2023.

65. I will indicate with some particularity how that sentence was arrived at. I have commenced, allowing for relevant matters, with a total term of sentence of 11 years, discounted by slightly more than 30 per cent, to arrive at the total term of the sentence of seven years and eight months. When I say “Slightly more than 30 per cent”, it is because 30 per cent of 11 years is in fact seven years, eight months and 12 days, and I have rounded down the days in your favour by reducing it to seven years and eight months.

66. In respect of the non-parole period, it is some three months less than if the statutory relationship between the non-parole period and the balance of term was applied. That is, on a sentence of seven years and eight months, the statutory relationship would be a non-parole period of five years and nine months. I have reduced the non-parole period in your favour by three months, to five years and six months.

67. That is a relatively minor adjustment on the basis of special circumstances but, in my view, it is all that is warranted in order to allow for a three months longer period of parole than would otherwise apply. A maximum parole period of two years and two months is in my view an appropriately long enough period for you to deal with your problems when released into the community.

68. I note, Mr Zhang, that you will not be automatically released at the conclusion of the non-parole period on 13 November 2020. Your release will depend on your conduct while in custody. I note that so far you have had no problems whilst in custody, and if you maintain that record it is highly likely that you will be released when first eligible for parole on 13 November 2020, but that is for the authorities to determine, rather than me.

Now, is there any matter that I have omitted or error that anyone would like to alert me to?

Decision last updated: 04 March 2019