Regina v Tran Hoai Cao

Case •

[2017] NSWDC 268

•

19 May 2017

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Regina v Tran Hoai Cao [2017] NSWDC 268
Hearing dates: 12 May 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction:Criminal
Before: Judge AC Scotting
Decision:

1 For each offence the offender is convicted.
2 This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.
3 I impose a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022.

Catchwords: CRIMINAL LAW – plea of guilty – conviction
SENTENCE - mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment
DRUGS – illicit – possession – prohibited – use - marijuana - Methylamphetamine - of 3,4 methylenedioxymethylamphetamine (MDMA)
OTHER – ecstasy – ice
Legislation Cited: Drugs Misuse and Trafficking Act 1985 ss.10(1), 25(1), 25A
Crimes Act 1900 ss.93T(4A), 192J, 193(1)
Crimes (Sentencing Procedure) Act 1999 ss.3, 5, 12, 21A(20(n), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m), 22, 53A
Cases Cited: Fayd’herbe v R [2007] NSWCCA 20
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Borkowski (2009) 195 A Crim R 1
Category:Sentence
Parties: Regina (Crown)
Tran Haoi Cao (Offender)
Representation:

Counsel:
Ms J Ghabrial (Offender)

  Solicitors:
C Hyland, Solicitor for Public Prosecutions (Crown)
Oxford Lawyers (Offender)
File Number(s): 2015/00107508; 2015/00370496
Publication restriction: None

sentence

  1. Tran Hoai Cao (the offender) appears for sentence after he pleaded guilty in the Local Court to the following charges:

H61122964

Sequence 1 Supply prohibited drug on an ongoing basis contrary to section 25A Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years imprisonment and/or a fine of $385,000.

Sequence 9 Supply prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985 (7.6g methylamphetamine) The maximum penalty for the offence is 15 years imprisonment and/or a fine of $220,000.

The offender also asks the Court to take into consideration when dealing with Sequence 1 the following charges on a Form 1:

Sequence 2 Deal with property suspected of being proceeds of crime contrary to section 193(1) Crimes Act 1900

Sequence 3 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (8.4 g cannabis leaf)

Sequence 4 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (0.81 g MDMA)

H60233062

Sequence 1    Dealing with identification information contrary to section 192J Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment.

Sequence 5   Dealing with identification information contrary to section 192J Crimes Act 1900.

Sequence 7   Dealing with identification information contrary to section 192J Crimes Act 1900.

Sequence 8   Dealing with identification information contrary to section 192J Crimes Act 1900.

Sequence 14 Participate in a criminal group contrary to section 93T(4A) Crimes Act 1900. The maximum penalty for the offence is 5 years imprisonment.

The offender also asks the Court to take into consideration a further 4 counts of dealing with identification information contrary to section 192J Crimes Act 1900 on a Form 1 when dealing with Sequence 1.

Facts

  1. The parties presented an Agreed Statement of Facts, in relation to the charges in H61122964 that can be summarised as follows.

Ongoing supply offence

  1. Between 7 and 28 December 2015 police intercepted a mobile telephone service of the offender.

  2. On 2 October 2015 the offender was in telephone contact with a person referred to as Mel. During the course of those telephone conversations an agreement to supply 1 gram of methylamphetamine for the sum of $350 was negotiated. A meeting was arranged at 5.31 pm on that day and the offender supplied Mel with 1 gram of methylamphetamine for $350.

  3. On 4 October 2015 the offender spoke to a person on the telephone referred to as ‘Panda’. During the course of those discussions the offender agreed to supply Panda with 30 pills of 3,4 methylenedioxymethylamphetamine (MDMA). They met later that night and the offender supplied Panda with the 30 pills.

  4. On 9 October 2015 the offender was speaking with a person known as Lloyd Grubusia (LG). During the course of those discussions the offender agreed to supply LG 30 pills of MDMA. They met later that night and the offender supplied LG with the pills.

  5. On 9 October 2015 the offender spoke to a person referred to as ‘Blackie’. They negotiated the supply of 1 gram of methylamphetamine on the basis that Blackie would pay for it the following day. Later on that day the offender supplied Blackie with 1 gram of methylamphetamine for financial reward. In a call the following day, Blackie said he was around the corner with the money he owed the offender.

  6. On 13 October 2015 the offender had telephone contact with a person Chris Millares (CM). Later that afternoon the offender supplied CM with 10 pills of MDMA for financial reward.

  7. On 30 October 2015 the offender spoke the person referred as Mel. They discussed the supply of half a gram of methylamphetamine. Later that night the offender supplied Mel’s friend with half a gram of methylamphetamine for $200.

  8. The total amounts of the drugs and the ongoing supply charge were 2.5 grams of methylamphetamine and 70 pills of MDMA.

Supply offence

  1. On 17 December 2015 police executed a search warrant of the offender’s residence in Homebush West. They recovered a white envelope with the words “one full half” containing seven plastic resealable bags each containing a white crystalline substance. That was later analysed to be 7.1 grams of methylamphetamine with a purity of 78%. In the same drawer police found another resealable bag containing a white crystal substance. That was later analysed to be 0.5 grams of methylamphetamine. The combined total of the supply charge was 7.6 grams of methylamphetamine.

Form 1 matters

  1. Police also located $12,800 in Australian currency, 9 plastic resealable bags containing 8.4 grams of cannabis leaf packaged separately, a resealable plastic bag containing two clear blue capsules and a smaller resealable bag containing 7 tablets which was later analysed to be .081 grams of MDMA.

  2. The offender participated in an interview with police following the search warrant. He agreed that he was the user of the mobile phone. He said that the prohibited drugs found at his house were for his personal use and that he occasionally supplied to friends. He said he supplied ice for $200 per gram. He believed the pills to be MDMA. He purchased them for a $1000 for 80 pills. He said that maybe more than half of the money found was from the sale of prohibited drugs or passing on identification information.

  3. The parties presented an Agreed Statement of Facts, in relation to the charges in H60233062 that can be summarised as follows.

  4. In July 2015 the Identity Security Strike Team commenced an operation focussed on the activities of co-offenders, Lee, Yeoh, Zhang, Mohammed and the offender. A number of telecommunication interception warrants were granted. The police also undertook physical surveillance of the relevant people.

Sequence 1

  1. At about 9.21 pm on 5 September 2015 Mohammed provided by way of an SMS false identify information in relation to a fictitious person Vikram Ron. The contents of the SMS for an order from Mohammed to the offender requesting a New South Wales Drivers Licence and a Medicare card. Further messages were exchanged between them over the next short period. At about 11.20 pm on 5 September 2015 the offender informed Mohammed that the documents would be ready on Monday. National Australia Bank records revealed a person reporting to be Vikram Ron using a fictitious New South Wales Drivers Licence applied for an obtained a personal loan drawing $23,500 on 7 September 2015. The amount was not recovered by the bank.

Sequence 2 (Form 1)

  1. At about 4.33 pm on 12 November 2015 Mohammed sent details to the offender of another fictitious identity. The offender asked Mohammed if he wanted a picture and green. Picture is a code for a New South Wales Drivers Licence green was a code for a Medicare card. The false identity related to a person Jeffry McKean. National Australia Bank records revealed a person purporting to be Jeffry McKean using a fictitious drivers licence applied for and obtained a personal loan drawing $22,500 on 13 November 2015. That amount was not recovered by the bank.

Sequence 3 (Form 1)

  1. At about 12.59pm on 29 November 2015 Mohammed sent an SMS to the offender with details relating to a fictitious person by the name of Fedrick Hamen. The offender asked him to send one as they were running low on cards. National Australia Bank records revealed a person purporting to be Fedrick Hamen applied for and obtained a personal loan drawing $24,000 on 30 November 2015. That amount was not recovered by the bank.

Sequence 4 (Form 1)

  1. At about 5.54 pm on 8 December 2015 Mohammed sent an SMS to the offender placing an order for one for tomorrow, two for Thursday, two for Friday and two for Monday. The offender asked Mohammed to email the photo to him and SMS him the details. The details were sent in relation to a fictitious person Jed Logan. National Australia Bank records revealed a person purporting to be Jed Logan using a fictitious New South Wales Drivers Licence and a Medicare card applied for and obtained a personal loan drawing $24,000 on 11 December 2015. The amount has not been recovered by the bank.

Sequence 5

  1. At about 4.07 pm on 10 December 2015 the offender sent an SMS to Mohammed asking if there was anything to line up for later so he could tell his people. Mohammed replied, “One for the morning and two for Monday. My boy will send you a picture in 5 to 10 minutes”. At about 5 pm on 10 December 2015 an SMS was sent from Mohammed to the offender providing the fictitious details for a person Ethan Miller. On execution of the search warrant on the offender’s home the police seized a Sony Xperia mobile telephone used by the offender. A subsequent forensic examination of the mobile telephone revealed a digital image of the person purporting to be Ethan Miller on that phone. Also located on the Sony Xperia mobile phone was WeChat messaging between the offender and the co-offender Zhang. The messaging contained the details matching those used by Lee to populate the false New South Wales Drivers Licence. The digital photograph of the person purporting to be Ethan Miller was located on the laptop used by Lee. Lee was the person with the equipment to produce the false identity documents. National Australia Bank records revealed a person purporting to be Ethan Miller using a fictitious New South Wales Drivers Licence and Medicare card applied for and obtained a personal loan drawing $27,000 on 11 December 2015. That amount was not recovered by the bank.

  2. At approximately 6.05 am on Thursday 17 December 2015 police executed a search warrant on the offender’s residential address. He was arrested and taken to Flemington Police Station. He told the police that he obtained identification information from an Indian male, usually for driver’s licences and Medicare cards including photographs. He forwarded this information to a female known as Mandy who he later identified to be Zhang. He also sent information to a person he described as an Asian male who he later identified to be Yeoh. Once the identification documents had been manufactured, the offender stated that he collected them from Zhang or Yeoh before delivering them to the Indian male. The offender stated he was paid $1200 for the cards of which he kept $200 and Zhang took possession of the remaining $1,000. He did not know specifically what the fraudulent identification documents were used for but he knew that it was to do with something with the banks. He told the police that he engaged in the activity to support his daughter’s medical conditions. He said:

“I need this extra money. The eczema started coming when she was six months. It was just bad and she was scratching to the point of bleeding. We went - it costed money, her eye sight if you look at my daughter the left side is lazy and that’s the reason why I’m doing this”.

Sequence 7

  1. On execution of the search warrant at the residential address of Mohammed police located a false New South Wales Drivers Licence in the name of Vinod Sam. The digital image of the person purporting to be Vinod Sam was located on the laptop used by Lee. On 14 September 2015 several telephone calls were lawfully intercepted between the offender and Abraham Maka. During those calls the offender discussed how Mohammed needed a male to attend the bank with false identification in order to obtain a loan. Maka agreed to take on the false identity and attend the bank himself at which time the offender took a photograph of Maka.

  2. The offender met Zhang at about 4.30pm on 14 September 2015 to provide her with the details. In telephone intercepts on that day Zhang and Yeoh discussed with the offender acquiring two sets of yellow and green. Police allege this was a code for 2 drivers licences and 2 Medicare cards. Later that day the offender told Mohammed that he had taken the photograph and was waiting for him in Chinatown to receive the identification information that would accompany the photograph. The offender arranged for his flatmate Jason Phi Huynh to meet Zhang later to collect the false identities. That was recorded on closed circuit television footage. After Huynh received the documents he sent an SMS message telling the offender that had received the documents.

  3. At about 9.37 am on 15 September 2015 the offender told Mohammed to have $1500 ready for Maka. This money was payment for Maka attending the bank and using false identification to obtain a loan. A short time later the offender and Mohammed had a further conversation where it was agreed the loan application would be done after 2 pm on that date as the bank was busy. At about 11.17 am Mohammed sent an SMS to the offender stating that he had given $500 to the offender earlier in the day and would pass another $1,000 on to Maka.

  4. At about 1.56 pm on 15 September 2015 the offender asked Mohammed which bank would be attended. Mohammed informed him it was the National Australia Bank and that they were there already. At about 2.58 pm on 15 September 2015 Maka told the offender that he was still in the bank waiting and that he should be done soon. Between 3.51 pm and 3.52 pm on 15 September 2015 the offender sent SMS messages to his partner indicating that the job had taken longer than anticipated so that he and Maka were paid an additional $200 each. The offender was paid a total of $500 for his assistance and Maka was paid $1400 for entering the bank and making a false loan application and using false identification depicted in his image.

Sequence 8

  1. At approximately 4.56 pm on 16 December 2015 the Mohammed sent details of a fictitious person Connor Bradley to the offender for the purposes of obtaining false identification documents. WeChat messaging between Zhang and Yeoh indicated that the offender was in a rush for these false documents. National Australia Bank records revealed a person purporting to be Connor Bradley using a fictitious New South Wales Drivers Licence and a Medicare card applied for an obtained a personal loan drawing $26,000 on 29 December 2015. This amount has not been recovered by the bank.

Sequence 9 (Form 1)

  1. At approximately 3.06 pm on 15 August 2015 Mohammed instructed the offender not to make a false identity document in the name of Kalash Bargav. During a forensic examination of an Apple iPhone 6 used by Zhang forensic information was obtained relating to a false identity in the name of Kalash Bargav. Westpac Bank records indicated a person purporting to be Kalash Bargav using a fictitious New South Wales Drivers Licence applied for a Flexi Loan on 2 October 2015 drawing $16,744.63. This amount was not recovered by the bank.

Sequence 10 (Form 1)

  1. During a forensic examination of the Sony Xperia mobile telephone used by the offender information was recovered relating to WeChat messages between the offender and Zhang. Located was a digital image of a person purporting to be Fabian Elmer. A false New South Wales driver’s licence in the name of Fabian Elmar was located at the residential premises of Mohammed during the course of the search warrant. At about 3.18 pm on 15 December 2015 Mohammed sent an SMS to the offender providing the false identification details relating to the fictitious person Fabian Elmer. National Australia Bank records revealed a person purporting to be Fabian Elmer using a fictitious New South Wales driver’s licence applied for and obtained a personal loan drawing the sum of $27,000 on 16 December 2015. This amount has not been recovered by the bank.

Sequence 11 (Form 1)

  1. During the execution of the search warrant on Mohammed’s premises a false New South Wales driver’s licence in the name of Paul Nelson was located. On the offender’s mobile phone was a digital image matching the image of the person purporting to be Paul Nelson. St George Bank details revealed a person purporting to be Paul Nelson using a fictitious New South Wales driver’s licence applied for a credit card, drawing $16,531.30. This amount has not been recovered by the bank.

Sequence 12 (Form 1)

  1. On the execution of the search warrant at Mohammed’s home police located a false New South Wales driver’s licence in the name of Tyler Daylon. Forensic examination of the offender’s mobile telephone found identification information and WeChat messages between the offender and Zhang relating to this fictitious identity. National Australia Bank records revealed a person purporting to be Tyler Daylon used a fictitious New South Wales driver’s licence, applied for and obtained a personal loan drawing $24,000 on 16 December 2015. This amount was not recovered by the bank.

Sequence 13 (Form 1)

  1. On the execution of the search warrant at Mohammed’s residence police located a false New South Wales driver’s licence in the name of Patrick Conroy. A forensic examination of the offender’s mobile telephone located the identification information relating to this false identity together with a digital image of the person purporting to be Patrick Conroy. National Australia Bank records revealed a person purporting to be Patrick Conroy using a fictitious New South Wales driver’s licence applied for and obtained a personal loan drawing $28,000 on 24 December 2015. This amount has not been recovered by the bank.

Sequence 14 participate in a criminal group

  1. Lee, Yeoh, Zhang, Mohammed, Singh and the offender had formed a criminal group. Each member of the group had a different role. Mohammed placed orders for fraudulent New South Wales driver’s licence and Medicare cards with the offender paying a cash fee in advance for the completed product. The offender would retain a fee from the funds provided by Mohammed prior to placing the order through Zhang. In placing the orders the offender would provide Zhang with the identification information particulars including the photographs. The offender would provide Zhang with the balance of the remaining fee paid by Mohammed, Zhang would retain her fee, passing the identification information and the cash balance of the remaining funds to Yeoh. Yeoh would retain his fee and pass the remaining payment to Lee along with the identification information. Lee manufactured the requested identification documents using the provided particulars, being paid the balance of the funds for his services. The final product would then be forwarded back along the group members until it reached Mohammed or Singh. The identification information was then provided to runners such as Maka who ultimately used the documents to defraud financial institutions for a fee. The runners such as Maka and others whose image appeared on the false identification documents were paid a fee for their part in defrauding financial institutions.

Pre-sentence report

  1. The Court received a PSR that can be summarised as follows.

  2. The offender is 36 years of age and lives with his partner of 4 years and their 2 daughters in rented accommodation. The offender has a supportive relationship with his partner notwithstanding that he experienced some difficulty adjusting to the birth of his eldest daughter.

  3. The offender immigrated with his parents in the early 1980s. His parents struggled financially to start a business and that impacted negatively on the family. He has a supportive relationship with his mother but not with his father due to his father’s alcoholism and violence towards the offender and the other family members. The offenders siblings are supportive but he has limited contact with them.

  4. The offender left school prior to completing his Higher School Certificate. In 1994, he completed a Certificate II in Commercial Cookery at TAFE. He is presently employed full-time as a chef in a hotel and works on the weekends in a café.

  5. The offender commenced using drugs at age 17 up until the current offences in 2013. He has completed a 12 week drug treatment counselling program from December 2012 to March 2017. He reported being abstinent from all drug use since the commencement of the program. This was confirmed by the program provider. The offender commenced drinking alcohol to excess at age 17. He has ceased drinking during the week but continues to binge drink socially on the weekends to intoxication. He has not participated in any alcohol cessation treatment and is willing to undertake counselling for alcohol abuse.

  6. The offender expressed remorse for his offending behaviour stating that supporting his family financially was the primary motivation behind his offending. He stated that his drug and alcohol abuse issues contributed to his poor decisions but was unable to offer any insight into the impact of his offending behaviour on the victims.

  7. The offender’s partner confirmed that he is very remorseful for supplying drugs the financial gain. She confirmed that he has ceased using illicit drugs but noted that he still struggles with alcohol abuse.

  8. The author of the PSR assessed the offender as a medium to low risk of reoffending. The offender was assessed as suitable for supervision and community service.

The offender’s case on sentence

  1. The offender tendered a report of Mr Sam Borenstein, clinical psychologist dated 11 May 2017. The psychologist saw the offender on one occasion for the purpose of preparing the report. The psychologist’s report can be summarised as follows. I will not repeat matters of history that have been set out in the PSR.

  2. The offender told the psychologist that he supplied drugs to friends primarily to support his own drug habit. In relation to the fraud matters the offender described himself as a “middleman” and the offences occurred when his one-year-old daughter was suffering severe eczema.

  3. The offender told the psychologist that he was very distressed observing his daughter scratch herself to the point of bleeding. He was unemployed and they could not afford to take her for specialist attention.

  4. The offender lost his employment in May 2015. He actively look for work between May 2015 and December 2015. He was not successful finding alternative employment and his confidence waned. The offender reported becoming increasingly depressed adapting to a new baby who had eczema.

  5. The offender first started drinking alcohol at age 17 and smoked cannabis at age 19 before trying other drugs namely, MDMA, cocaine and methylamphetamine. Prior to 2014 he was a binge drinker and used illicit drugs. He experienced recurrent episodes of memory loss and black outs. There were many occasions on which he did not know how he found his way home.

  6. In 2014 he commenced using the drug ice in the course of his work as a chef. He commenced smoking upwards of four points of ice per day and that usage increased when he was unemployed. He entered into the offending conduct to support his ice addiction.

  7. Leading up to his arrest the offender reported experiencing a worsening depression as result of being unemployed and unable to support his daughter who was born on 15 March 2014. He reported difficulties adapting to parenthood. He was finding it to find employment. He is quite heavily tattooed and believed prospective employers would judge him. He noted social withdrawal, reduced motivation, ease of distraction and difficulties maintaining concentration.

  8. The offender worried about his daughter’s eczema. She had to attend hospital on a regular basis. It spread from her arms to her neck, back and knees. She required constant wet dressings to prevent scratching. The offender reported spending upwards of $300 per week on their daughter’s needs.

  9. When he was released from custody, the offender learnt that his partner was pregnant with their now one-year-old daughter. He could not celebrate her birth. The offender returned to work and has managed to fit employment in with his curfew restrictions. Throughout 2016 he slowly reduced his drug usage. His second daughter was born on 11 August 2016. He went to drug counselling in December 2016.

  10. In the future the offender wants to continue drug counselling. He impressed the psychologist is highly motivated to ensure he remains drug free and on a positive life path. He would like to set up his own restaurant.

  11. The psychologist opined that the offender was “mildly depressed” in his presentation. Psychological testing indicated severe symptoms of depression, moderate symptoms of anxiety and moderate symptoms of stress.

  12. The psychologist opined that the offender’s substance dependency is in partial remission.

  13. The psychologist opined that the offender symptoms of depression worsened as is daughter suffered severe and debilitating eczema requiring fairly frequent hospital admissions at a time when he and his partner were unable to afford specialist treatment for their daughter. The psychologist accepted that the offender supplied drugs in order to support his addiction to ice and there was causal connection between his chronic drug usage and the offending behaviour. The psychologist opined that the severity of the offender’s depression led him to rely exclusively on illicit drugs as a form self-medication. As a result the offender severe depression affected his ability to form proper judgement of make sound decisions.

  14. The psychologist recommended that the offender should participate in the intensive psychological treatment based on cognitive behavioural therapy to assist him to avoid recurrent depressive episodes in the future and that he should continue with drug and alcohol rehabilitation.

  15. The offender read an affidavit of his partner, Vanessa Kasemsuk sworn 12 May 2017. The contents of the affidavit can be summarised as follows.

  16. In about early January 2015 the offender’s partner became concerned about her daughter’s eyesight. Between January 2015 and October 2015 they paid $570 for specialist medical appointments to have her eyesight assessed.

  17. On 4 May 2015 the offender and his partner took their daughter to the general practitioner in relation to her eczema. She wasn’t getting any better. She was constantly scratching her eyes, elbows, back and the fault of the arms and legs until it became infected. The general practitioner prescribed an appointment and a soap free wash, Cetaphil.

  18. On 1 June 2015 the offender and his partner took their daughter to the Sydney Children’s Hospital in Randwick. She had been scratching her body and started bleeding and got infected. She had yellow discharge around the relevant areas. The wounds would stick to her clothes and removing her clothes would cause the wounds to bleed. The hospital prescribed Advantin fatty ointment and Dermaid. The nurses educated the offender and his partner on the “wet dressing” method. The clinical notes of that attendance were annexed to the affidavit. The notes reported a history of itchy elbows and groin over 6 months. The diagnosis made was of “mild eczema”. The treatment recommended was wet dressings for 3 days, together with Advantan Fatty Oitment, Dermeze and moisturising baths until specialist review.

  19. On 14 August 2015 the offender and his partner took their daughter to the general practitioner and she was referred to see a dermatologist, Prof Zagarella.

  20. On 18 August 2015 the offender and his partner took their daughter to see the dermatologist. A letter from the dermatologist dated 1 May 2017 was annexed to the affidavit. The offender told the dermatologist that the child had a “long history” of atopic dermatitis. The dermatologist prescribed treatment with Elidel cream, Advantan Fatty Oitment and Dermeze ointment. The child has not seen the dermatologist again.

  21. The offender’s partner set out the expenses that were incurred in bandages, ointments and washes used on her daughter over the relevant period. That period was not defined. The costs of all of the treatments added up to about $200 per month.

  22. Ms Kasemuk deposed that they were struggling financially in 2015. The offender was not working and she was looking after their daughter. She stated that the offender would stress about how they would cope financially.

  23. Since January 2017 Ms Kasemuk deposed that the child has developed eczema on her eyelids that has become progressively worse.

  24. There were some undated photos of the offender’s daughter annexed to the affidavit showing the presence of rashes on various parts of her body. The photos were said to have been taken in the last 2 years.

  25. Ms Kasemuk deposed that the offender had always been responsible for the financial support of his family. She was unable to return to work because she breastfed their daughter until she was aged 2 and she would not take a bottle.

  26. This financial support included the cost of specialist consultation fees and medication to help treat their daughter.

  27. Ms Kasemuk expressed concern as to how she would look after her two young children without the offender. She does not have any family close by. She did not have a drivers licence or any qualifications to find work. She is dependent upon the offender to provide for her.

  28. The offender has expressed remorse to her and undertaken steps to rehabilitate himself. He was careful not to breach any of his bail conditions. He has undertaken drug counselling. He has told her that he wants to do more programs if he has the chance to stand the community or once he is released on parole.

  29. The offender relied on an affidavit of his solicitor sworn 11 May 2017. The affidavit annexed his bail conditions in force from 17 December 2015 to the present. The offender was subject to a curfew between 7pm and 7am the following night each day. The curfew condition was only suspended on a few occasions. The curfew condition did not stop him from working in 2 different positions and he did not seek to vary the curfew condition to allow him to work alternate hours as a chef.

  30. The offender tendered a letter to the Court dated 12 May 2017. The offender expressed his desire to be able to support his family including the medical needs of his eldest daughter and to experience his children achieve their milestones. He described himself as not being ready to become a father and at the time was unable to reduce his drug and alcohol intake. He associated with the wrong people. The Court process has put him through considerable stress. The offender stated that he was sorry for everything that he had done and that he was deeply ashamed of his actions.

  31. The offender also tendered letters confirming his employment and his participation in the drug rehabilitation course.

Factual findings

  1. Taking into account all of the evidence I am not satisfied on the balance of probabilities that the offender suffered from severe or significant depression during 2015 or that he was self-medicating with drugs and alcohol for the following reasons.

  2. The contemporaneous medical records relating to the offender’s daughter to not support the conclusion reached by the psychologist that her eczema was “severe” or “debilitating”. I accept that the offender experienced some adjustment issues as a result of having a child at the time and is it likely that her eczema was of concern to him as a parent. The records provide no evidence of infection, open wounds or regular treatment.

  3. The costs of her various treatments were not substantial and they did not require funding by recourse to criminal activity. A generous view puts those costs at about $200 per month and $570 in total for specialist fees. The medical records indicate that the offender and his partner did not regularly take their daughter for treatment. They missed a number of appointments relating to her eyesight and did not stay for the entirety of the intended examination when they did attend.

  4. The offender had $12,840 in cash in his possession on 17 December 2015 when he was arrested. He told the police that over half of that money came from selling drugs and dealing with the identification documentation. The offender was unemployed at the time and on the evidence was providing food and accommodation for his family. It is clear that he had more than enough cash available to him to provide for the modest sums that were required to care for his daughter’s eczema.

  5. The psychologist based his opinion on the history that the offender gave that during the period of the offending that he was socially withdrawn, had reduced motivation and a lack of confidence. In my view that history was inconsistent with matters outlined in the agreed facts for both matters. The offender was enterprising, organised and bore a position of some responsibility in the false identification organisation. I am not prepared to accept that untested history when the offender did not give evidence in the sentence proceedings.

  6. Further, there was a substantial disconnect between the offender’s presentation to the psychologist as “mildly depressed” and the scores on the DASS21 test administered by the psychologist. The scores are hard to reconcile with the central premise of the offender’s case that he was so severely depressed in 2015 that he began to commit the criminal offences, when those circumstances on the basis of the testing at least appear not to have changed.

  7. Ms Kasemsuk’s evidence does not independently verify that history. First, her evidence does not go as far as what is stated by the psychologist. Second, her evidence is coloured by her concern that she will not be able to support herself and the children if the offender is incarcerated. Whilst I accept that the incarceration of the offender would have an adverse effect on her and the children, this is not an exceptional case.

Consideration

Objective seriousness of the offences

  1. An offence under section 25A is generally considered to be more serious than an offence of supply simpliciter under section 25. An offender charged with a section 25A offence cannot rely on an argument that the act of supply was an isolated event. The maximum penalty provided for is a clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the offender. The offender supplied 2.5 grams of methyl amphetamine and 70 pills of MDMA. There is very little evidence upon which I can understand the size of the operation involved, or where the offender was positioned in it. There was some planning and use of a mobile phone to make arrangements for the supply of the drugs. The Court of Criminal Appeal has decided that the offences under section 25A should attract a full-time custodial sentence unless there are exceptional circumstances: Fayd’herbe v R [2007] NSWCCA 20 at [18].Overall, I accept that he was a low level user dealer and the objective seriousness of the ongoing supply charge was in the low range.

  2. The supply charge involved 7.6 grams of methyl amphetamine. By his plea the offender accepts that he had at least some of that amount in his possession for the purpose of supply. It is likely that some of that amount of the drug would be used by him personally. The packaging of the drugs when it was located suggests that it was to be on supplied. The purity of the drug was quite high at 78%. The objective seriousness of the supply charge is in the low range.

  3. The dealing with identification information charges reveal a sophisticated and organised criminal operation. The orders for fake driver’s licences and Medicare cards were placed by Mohammed with the offender. The offender told Mohammed when they would be ready and he knew the operation was running low on cards. Mohammed was supplying the false information to be used to create the false identification documents. The offender received the digital images of the persons to be depicted in the false driver’s licences. The information received by the offender was passed onto Zhang by WeChat and to Yeoh and that information was passed onto Lee. Lee possessed the equipment and the blank card stock to manufacture the false documents. The offender would then deliver the false documents to Mohammed. The false documents were being used to obtain bank loans that would not be repaid. The offender knew the false documents were being used for something to do with the banks. The total amount of the loss to NAB was $226,000, to St George was $16,531.30 and to Westpac was $16,744.63.

  4. The offender took the photograph of Maka that appeared on the false driver’s licence in the name of Vinod Sam. The offender arranged delivery of that false documentation. The offender organised with Mohammed for Maka to go into the bank and obtain a fraudulent loan. The offender was in constant contact with Maka during the loan application process. The offender was paid $500 for this involvement.

  5. On the facts the offender was involved at the mid level of the organisation that was systematically producing the false identification documents. The offender’s involvement was important because he acted as a go between and it assisted in the syndicate avoiding detection. I note that the dealing with identification documents could have been dealt with in the Local Court. The objective seriousness of each of the dealing with identification information offences is in the mid-range.

  6. The offender’s involvement in a criminal group was for about 6 months, between July 2015 and December 2015. Each of the members of the group had a defined role. The offender received money as a result of being in the criminal group. The operation of the group was organised and sophisticated. The objective seriousness of the offence is in the mid-range.

Deterrence

  1. General deterrence is of significance in sentencing offenders for serious drug supply offences. The availability of drugs is pervasive in the community and persons considering committing these types of offences should be aware by references to the penalties given for them that they will meet with severe punishment if they choose to participate in the supply prohibited drugs.

  2. The problem of identity offences is also prevalent and general deterrence should be reflected in the penalties imposed.

  3. General deterrence may be afforded less weight when the offender suffers from a mental condition. In my view, the extent of the offender’s depression was minimal at the time of the offending conduct and it was his substance abuse that led to the commission of the offences. There was nothing about the reasons for his substance abuse to indicate that it was not a choice made by him, in addition he was given a substantial opportunity in the form of a 2 year suspended sentence in 2004 to deal with that issue. In the circumstances the reduction to be given to general deterrence is minimal. I do not accept that his mental condition would make his time in custody more difficult.

  4. There is a need for specific deterrence. The offender has a prior conviction for drug supply for which he was sentenced to 2 years imprisonment that was suspended pursuant to section 12 Crimes (Sentencing Procedure) Act 1999. The offender has taken some limited steps towards achieving drug rehabilitation.

Aggravating factors

  1. The offender has a record of previous convictions, but in my view they are insufficient to amount an aggravating factor for these offences.

  2. The dealing with identification documents offences were part of a planned or organised criminal activity: section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

  1. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken some steps towards drug rehabilitation by undertaking a course and remaining abstinent from drugs since December 2016. He has not yet addressed his alcohol abuse. The offender in his letter to the Court appears to understand the need for his rehabilitation and wants to pursue a positive lifestyle. I am satisfied on the balance of probabilities that the offender has demonstrated that he has good prospects of rehabilitation.

  2. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has in his letter to the Court and in what he has said to the author of the PSR and the psychologist accepted responsibility for his actions and I am satisfied on the balance of probabilities that he has expressed genuine contrition and remorse.

  3. The offender co-operated with the investigation: 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. In the identification offences the offender confirmed the identity of others involved but was not prepared to give evidence against them. The level of co-operation does not warrant a separate discount on penalty, but I have taken it into account in mitigation.

  4. The appellant entered a plea of in the Local Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The appellant is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount in this case is 25%.

  5. I do not accept that the offender’s bail conditions amounted to a form of quasi-custody and that they should be taken into account to significantly mitigate the sentence imposed. The offender was able to work, live at home and participate in rehabilitation. The conditions may have limited his work opportunities but not significantly so. It was always open to the offender to apply to vary the curfew conditions to permit him to attend work if that is what he wanted to do.

No alternative to imprisonment

  1. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

  2. I was asked to consider dealing with the matter by way of an Intensive Corrections Order. I have come to the view that the appropriate sentence when partially accumulated to reflect the different criminality and having regard to the principle of totality that the appropriate head sentence is one of more than 2 years.

Sentence

  1. For each offence the offender is convicted.

  2. This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.

  3. The sentences, after allowing for the discount for the plea of guilty, that I would have imposed if separate sentences were imposed are:

H61122964   Sequence 1                   18 monthstaking into account the matters on the Form 1

Sequence 9                  9 months

H60233062   Sequence 1                  24 months         taking into account the matters on the Form 1

Sequence 5                  6 months

Sequence 7                  12 months

Sequence 8                  6 months

Sequence 14                  6 months

  1. I find that there are special circumstances. This is the offender’s first time in custody and he will benefit from a longer period of supervision on parole to assist him with drug and alcohol rehabilitation and to obtain psychological treatment, if warranted.

  2. I impose a term of imprisonment consisting of a non-parole period of 2 years and 9 months to date from 19 May 2017 and expire on 18 February 2020 and a head sentence of 4 years and 9 months expiring on 18 February 2022.

  3. The offender will be eligible to be released on parole on 18 February 2020.

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Decision last updated: 29 September 2017

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

3

Fayd'herbe v R [2007] NSWCCA 20
Simkhada v R [2010] NSWCCA 284
R v Borkowski [2009] NSWCCA 302