R v Zhang, S

[2017] NSWDC 455

District Court

New South Wales

Medium Neutral Citation:	R v Zhang, S [2017] NSWDC 455
Hearing dates:	19 June 2017
Decision date:	23 June 2017
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Form 1 matter taken into account on sentence. The offender is sentenced to a term of imprisonment for 9 years, comprising of a NPP of 6 years and 9 months to commence on 3/10/15 and to expire on 2/7/22, and a balance of term of 2 years and 3 months to commence on 3/7/22 and to expire on 2/10/24.
Catchwords:	CRIMINAL – sentence - knowingly take part in the supply of a large commercial quantity of a prohibited drug, methylamphetamine – Form 1 matter - knowingly participate in a criminal group directing any of the activity – role of offender - offence committed whilst on parole - subjective matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Drug Misuse and Trafficking Act 1985
Cases Cited:	Callaghan v R [2006] NSWCCA 58 R v Fernando [2002] NSWCCA 28 R v Huynh [2003] NSWCCA 239 R v McVeety [2002] NSWCCA 344 R v Moffatt [1990] 20 NSWLR 114
Category:	Sentence
Parties:	Regina Si Ji Zhang
Representation:	Solicitors: Crown: Mr A Poulos; Mr M Dickenson Defence: Mr M Ainsworth
File Number(s):	2015/00144758

Judgment

1. HIS HONOUR: Si Ji Zhang appears for sentence in respect of a single offence of knowingly take part in the supply of a large commercial quantity of a prohibited drug, being 1,996.9 gr of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided is life imprisonment and/or 5000 penalty units. The legislation also provides a standard non-parole period of 15 years.

2. In addition he asks that when being sentenced for that offence that the Court take into account an offence contained on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. That offence is knowingly participate in a criminal group directing any of the activity, contrary to s 93T(1A) of the Crimes Act 1900. When dealt with separately the maximum penalty provided is 10 years’ imprisonment.

3. The facts are agreed and are as follows:

4. In December 2014, police attached to the State Crime Command Organised Crime Squad commenced Strike Force Sylvia, an investigation into the co-offender Li Wang and his involvement in the supply of prohibited drugs. As part of this investigation an authority to conduct a controlled operation was granted and a surveillance device warrant issued in respect of this offender. At the time the offender resided at 961/3 Naulty Place, Zetland. Li Wang is the registered owner and user of motor vehicle BSA-64G, a black Mercedes Benz sedan.

Knowingly take part in the supply of a prohibited drug – large commercial quantity

FORM 1 - Knowingly participate in a criminal group and direct activities

5. About 12pm on 14 May 2015, the offender, Si Zhang, co-offender Li Wang and co-accused Z Zhang and Z Tang met at the East Village Shopping Centre, Zetland, where they attended the East Phoenix Dumpling Bar. The East Village Shopping Centre is bounded by Defreis and Gadigal Avenues, the Eastern Distributor and Cooper Place.

6. After lunch, Tang separated from the group and walked around the centre alone.

7. S Zhang, Z Zhang and Li Wang walked around the centre for approximately an hour before Li Wang and S Zhang walked to the car park 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 Defreis and Gadigal Avenues.

8. About 1pm, Li Wang and S Zhang entered the Mercedes motor vehicle BSA-64G, which was parked in the underground car park of the East Village Shopping Centre and travelled to the Moore Park Supa Centa car park. 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 it appeared that Z Zhang indicated for 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.

9. At about 1.15pm, Z Zhang walked across Gadigal Avenue and out of sight. Moments later he walked back towards the eastern footpath carrying a bag. Seconds later Liang and Sun were seen both in possession of brown coloured bags, and Z Zhang was seen without a bag.

10. Z Zhang, Liang and Sun walked to the Moore Park Supa Centa car park, being a short distance from Gadigal Avenue. Liang and Sun were seen to walk a short distance behind Z Zhang. During this time physical and electronic surveillance monitored Li Wang meeting with a police undercover operative, “George”, seated in a vehicle.

11. A short time later, S Zhang exited the Mercedes and approached Li Wang who was seated in the passenger seat of the undercover operative’s vehicle and appeared to have a conversation. S Zhang then walked to the southern entrance of the car park where he met with Z Zhang. S Zhang and Z Zhang walked north through the car park with Liang and Sun following metres behind, each still in possession of a brown bag. The four persons congregated in the vicinity of the black Mercedes.

12. Li Wang exited the operative’s vehicle and approached the vicinity of the four co-accused before returning to the vehicle. Moments later S Zhang approached the vehicle where Li Wang was seated in the passenger seat and appeared to have a conversation. Moments later S Zhang walked towards the three co-accused, and indicated with his hand for them to walk over. Z Zhang and Sun walked in the direction of the operative’s vehicle. Z Zhang raised his hand and indicated to Sun to stop. Sun stopped approximately 4 metres from the vehicle. S Zhang and Z Zhang walked to the passenger side of the vehicle. At this point, it was clear that Z Zhang and S Zhang were the facilitators of the prohibited drug and in control of the transaction.

13. Z Zhang 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 seat of the vehicle. Liang walked towards the vehicle, however hesitated and stopped metres from the vehicle before stepping backwards. S Zhang indicated for Liang to walk to the vehicle. As he was doing so, S Zhang walked to the eastern wall of the car park and out of view. Liang handed Sun a brown bag through the open door and walked towards the vicinity of S Zhang who was standing near the eastern wall of the car park. Sun handed the two brown bags to the undercover operative who was seated in the driver’s seat.

14. During this transaction, Li Wang and Z Zhang were present in the vehicle. Li Wang and the operative then exited the vehicle.

15. Police attached to the Tactical Operations Group intervened and detained all persons and arrested and cautioned the offenders. All relevant provisions to the arrest were adhered to.

16. Located within the two brown bags were 997.2 grams and 999.7 grams of methylamphetamine respectively. Also located in a grey bag were five BlackBerry smart phones.

17. The investigation revealed that Li Wang is a facilitator and distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates for the purpose of avoiding detection from law enforcement agencies.

18. Li Wang, Z Zhang, Sun and S Zhang were conveyed to the Surry Hills Police Station where they participated in electronically recorded interviews. The offender refused to answer questions asked by the detectives, as was his right. He was then charged with the offences now before the Court.

19. 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 that classifies as a large commercial quantity, that is, equal to or more than 1 kg of methylamphetamine. The offender took an active role and directed others, as is admitted by the matter contained on the Form 1 and the content of the agreed facts. His role was significant and substantial in relation to this particular supply.

20. I would assess the objective seriousness of the matter as being at least in the midrange, and the offender as having a significant role in relation to that offending.

21. 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.

Subjective Matters

22. In respect of subjective matters, the Court has before it: a presentence report under the hand of Lucinda Bennett, dated 19 April 2017, a psychological report from Mr Gorrell, dated 17 June 2017, a number of TAFE completion certificates, letters from Chaplain Bazan, employed by Corrective Services, New South Wales, and from Mr Jack Simpson, dated 20 January 2017, congratulating the offender on completing the “Great Truths of the Bible” course together with a certificate as to its completion, a letter from a Dr Malcolm in relation to his treatment of a Mrs Verkhoturova, the offender’s grandmother, a letter dated 15 May 2017, and a letter from a community worker, Evgueni Singatauline, dated 16 May 2017, and a letter from the offender’s grandmother, Yolena Verkhoturova, dated 28 January 2017, a letter from Arch Priest Ignatievsky of the Holy Protection of the Mother of God Church, Cabramatta, a letter to the Court from the offender, undated but tendered on 19 June 2013.

23. The offender did not give evidence on sentence, and in addition to the material that I have so far referred to, there is a criminal history, being part of the Crown tender.

24. In 2014, he was dealt with for drive motor vehicle while licence suspended, first offence, in 2011 a special category driver drive with special range PCA. In relation to each of those two offences, I regard them as having no relevance to the current sentencing procedure. However, in March of 2015 at the Sutherland District Court, he was dealt with in respect of an offence committed in August of 2014 of supplying a prohibited drug and sentenced to imprisonment for 14 months commencing on 4 August 2014; the non-parole period was eight months concluding on 3 April 2015 with release to be subject to supervision. Accordingly, at the time of this offence on 14 May 2015, the offender, having been granted parole on 3 April 2015, was in on conditional liberty. The offence was committed within approximately six weeks of his release on parole. As a result of his arrest in respect of this matter, the balance of his parole was revoked from 15 May 2015, that is, the day after his arrest, and the balance of the sentence expired on 4 October 2015.

25. The commission of offences whilst on parole is a significant aggravating circumstance. Parole is a privilege, and abuse of that privilege calls for a higher punishment, R v McVeety [2002] NSWCCA 344; R v Fernando [2002] NSWCCA 28 at [42]. Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed, and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances.

26. Greg James J in R v Huynh [2003] NSWCCA 239 stated that:

“…it is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour that if you breach that undertaking you aggravate your culpability for the offence you commit which constitutes the breach, you surrender the prospect of liberty which you have enjoyed conditionally upon your not committing a breach and you must expect to serve in custody the sentence from the custodial nature of which you have been liberated conditionally.”

27. In R v Moffatt [1990] 20 NSWLR 114 it was held that the offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of this conduct in abusing his parole.

28. I note in respect of this matter that it is a serious concern that the offence in respect of which he was on parole was an offence of the same nature, and also of serious concern that the offending occurred within such a short period after having been released on parole.

29. The Court recognises the sentencing discretion includes the ability to make the sentence imposed in this matter concurrent, partially concurrent with, or wholly cumulative upon the sentence which the offender was serving as a consequence of the revocation of parole, for the reasons referred to by Simpson J in Callaghan v R [2006] NSWCCA 58. I note at this point that having considered the exercise of that discretion I decline to make the sentence to eventually be imposed in this matter concurrent or partly concurrent with the revoked parole period.

30. The offender was 22 years of age at the time of the offence. He is now 25 years of age. He was born and initially raised in Inner Mongolia, being part of the People’s Republic of China. His parents separated in 2004 and his father migrated to Australia with him to join up with his paternal grandparents, who were already residing in Australia.

31. His father died of cancer in 2011, his grandfather died in 2013 and an aunt died of cancer in 2015. His only relative currently residing in Australia is his grandmother, Wing Lu Zhang, who from the material before me is Mrs Verkhoturova.

32. During his six weeks of liberty on parole, he is said to have been casually employed as a gyprocker. There is no reference before the Court from any employer.

33. He is said to be the only child of his parents, and his parents had good jobs, and the family was financially sound. His parents separated when he was 12 years of age and he went with his father because of the opportunity of migrating to Australia and the better opportunities that might afford. After the death of his father in 2011, he was cared for by his aunt, who unfortunately died in 2015. He continues to have telephone contact with his mother every second month while in custody.

34. On migrating to Australia, he attended an English language school for 12 months. Having learnt English, he became an interpreter for his family as neither his father nor his grandparents spoke English. After learning English, he attended Cabramatta High School and two years later was expelled because of a fight at school in which someone was stabbed, the offender asserting that he was simply watching. Apparently the fight had something to do with racial antagonism between Chinese and Vietnamese students. After being expelled, he attended the Liverpool TAFE where he studied to complete the School Certificate, and thereafter at Ultimo TAFE where he undertook studies in Business Administration.

35. In 2008, after completing a TAFE Certificate III in Business Administration, he returned to China for nine months where he resided with his maternal grandparents and saw his mother on a daily basis. In late 2008, he returned to Australia and returned to living with his father and grandparents. In 2009 he is said to have obtained fulltime employment as a gyprocker.

36. It is said that when the offender was 19 years of age he did not cope well with his father’s death, and was introduced to methylamphetamine or “ice” by a fellow gyprocker, having never been involved with illicit substances prior to that. He claims to have ceased using ice for 12 months in 2012; however in 2013, his grandfather died, and again he relapsed into ice use, his addiction developing to a point where he was unable to work. As a result he lost his employment and was then unable to pay for his addiction. It is said that he then began working for his dealer in order to support his habit and as a result he was detected in 2014, arrested and imprisoned as I have already referred to.

37. On his release he was only able to obtain casual employment and had limited money and significant free time. He reconnected with his past drug associates and within a short space of time, clearly less than six weeks, he was again using ice, and claims that in order to obtain the ice he was again working for his dealer. He claimed to the psychologist that his role in the offence was to simply do what others told him to do and that he was to receive 2 grams of ice.

38. There is no independent evidence of what the offender was to receive either by way of any drugs or payment. The offender, who was on parole for an offence of supply, in my view must have anticipated a more significant reward for his participation in this serious offence than simply being provided with 2 grams of ice for his own consumption.

39. I note he did not give evidence on sentence and what he has said at various times indicates that the Court must be highly circumspect in relation to accepting statements made to others by the offender.

40. The presentence report includes a passage under the heading of “Attitude to Offending”, which is as follows:

“Mr Zhang disagreed with the police facts as presented. The offender denied knowledge of the drug deal and advised that he was told by the co-accused that he would be selling a BlackBerry. The offender denied any interaction with the undercover police officer and purported that he did not go the location for the purpose of selling drugs. It would appear that Mr Zhang did not accept responsibility for his offending behaviour and failed to understand the seriousness of his actions.”

41. That passage would have led to the Court rejecting his plea of guilty and referring the matter for trial. However, Mr Ainsworth, counsel appearing for the offender, has indicated to the Court that the offender does not in any way rely on that self-serving statement made to the presentence officer.

42. The psychological report contains the following relevant passage:

“I pointed out to Mr Zhang that in the presentence report prepared by Ms Lucinda Bennett, Community Corrections Officer, City Community Corrections Office, it is stated that he disagreed with the police facts as presented....denied knowledge of the drug deal....denied any interaction with the undercover police officer....purported that he did not go to the location for the purpose of selling drugs. Mr Zhang told me that when he was interviewed for that report he had a different solicitor and that solicitor had poorly advised him. At the time of that interview he was confused. Mr Zhang apologised for making incorrect statements.”

43. Mr Zhang made a clearly false statement to the presentence officer, at least in part. He sought to explain that to the psychologist engaged on his behalf by claiming that his false statement was as a result of poor advice and that he was confused. I fail to understand how he could possibly have been confused in any way about what he had done and the role he had played. It is for that reason that I indicate that the Court has to be very circumspect in relation to any statement by Mr Zhang contained by way of hearsay in the documents before the Court, in the absence of his having given sworn evidence which might allow the Court to make its own judgment in respect of his honesty and veracity.

44. The offender is said to have a close relationship with his grandmother, as referred to in the reports and as referred to in particular in Exhibit Z4, all being documents either from Mrs Verkhoturova or documents in relation to her state of health, which includes chronic medical conditions of hypertension, diabetes and severe arthritis in the back and knees as well as osteoporosis and peripheral vascular disease.

45. It is said that the offender has looked after her. That must exclude the period that he served in prison before being released and free in the community for only six weeks before returning to custody on 14 May 2015. I have no difficulty in accepting that his grandmother has a number of serious health problems. She has, however, apparently been able to cope in his absence for the periods that I have just referred to, and there is nothing in the reports or her own letter which indicates that she is unable to continue as she does currently at the age of 77, living alone.

43. I note that the Chaplain Bazan had contact with the offender over a six month period prior to April 2017, and he indicated that the offender showed an interest in the service and participated in prayers, bible readings and group discussions, and that he appeared to be a respectful and reflective person who seemed to enjoy the Christian fellowship and that he had a genuine desire to redirect his life and was hence searching for guidance in the Christian faith. I note the letter and certificate from Mr Simpson indicating that he has completed the “Great Truths of the Bible” course. I hope that his attendances and his studies of the bible assist in ameliorating the impact of the sentence that will be imposed on him.

44. The offender wrote a letter to the Court which was admitted subject to weight, as indicated at the time of the tender. I do not place much weight on such letters, where the offender in particular does not given evidence and so cannot be cross-examined on the statements. In his letter, he expresses remorse and contrition for the offence and claims to be regretful, sorry and suffering from depression which is “getting worse and worse after I heard my grandmother is getting sick too”. He also states:

“I realise that my behaviour caused great harm to the community and as a serious criminal offence I deserve to be punished severely. At that young age being highly addicted to drugs and haven’t fully understand the seriousness of my crime all the above put me into this situation. I have nobody to blame but myself.”

48. He further asks for another chance to be a responsible and righteous individual and to be able to take care of his grandmother. Perhaps he might have thought of his grandmother before taking part in such a serious offence.

49. In view of the content of the presentence report and the psychological report that I have already referred to relating to his attitude to the offences, I am unable to find that there is any acceptable evidence of genuine remorse or contrition in relation to this offender. I accept however that he has had a history of poly-substance abuse, the latest in 2011, and at the time of committing this offence he was using ice on a regular, if not daily, basis. I note that to the presentence officer he described himself as dependent on ice and advised he has continued to use illicit substances during his current period of incarceration.

50. Under the heading of “Prior Management by Community Corrections” the presentence report includes the following:

“Mr Zhang first came into contact with Community Corrections on 27 March 2014 when he was sentenced to a 14 month period of incarceration for the offence supply prohibited drug. The offender was released to supervised parole on 3 April 2015. Service records indicate that between 3 April 2015 and 15 May 2015, whilst subject to conditional liberty, Mr Zhang attended for appointments as directed. Efforts were made to engage the offender in community based alcohol and other drug intervention, however due to the offender’s rearrest and subsequent bail refusal on 15 May 2015, offence targeted intervention did not commence. Since his bail refusal, Mr Zhang has been subject to seven sentencing episodes for institutional misconduct. The behaviour breaches are drug related including possession and refuse/fail drug sample, fight or other combat and possess offensive weapon.”

51. In the circumstances of his rapid return to the use of prohibited drugs, which has apparently continued while in custody, the Court is unable to find that there is a good prospect of rehabilitation, nor can it find that there is a low prospect of reoffending. That is of course not to say that there is no prospect of rehabilitation. The offender is currently only 25 years of age. That holds out some hope for him determining in the future that he will cease using prohibited drugs, which are no doubt the underlying cause, although not an excuse, for his offending on this occasion.

52. Mr Zhang, would you please stand.

53. In respect of the offence of knowingly take part in the supply of prohibited drugs, being more than a large commercial quantity, 1996.9 grams of methylamphetamine, you are convicted. In sentencing you in respect of that offence, I take into account the offence contained on the Form 1 of knowingly participate in a criminal group, and directing any of the activity.

54. You are sentenced to a non-parole period of six years and nine months. The balance of term is two years and three months, giving a total sentence of nine years. As I have previously indicated, while cognisant of the fact that I have discretion to make the sentence concurrent or partly concurrent upon the revoked parole period, in the circumstances of this matter, I find that it is inappropriate to make it either concurrent or partly concurrent. So, allowing for what I believe is a one day miscalculation of one day served before the revoked parole period commenced, the sentence will commence on 3 October 2015.

55. The non-parole period of six years and nine months means that you will be first eligible for parole on 2 July 2022. The balance of term of two years and three months, it being the total sentence of nine years, will expire on 2 October 2024.

56. I have found no special circumstances, and I am aware that the sentence imposed accords with the statutory relationship between the non-parole period and the balance of term but that it flows on entirely after the expiry of the revoked parole period. It is a result which I intend, and I have expressly declined to find as a special circumstance a need to re-establish the statutory relationship between the time in custody and the time on parole by reducing the non-parole period to take account of that fact.

HIS HONOUR: Is there any matter that I have failed to mention?

AINSWORTH. Not that I’m aware of.

DICKINSON: No, your Honour.

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Decision last updated: 04 March 2019