See v R

[2020] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

See v R [2020] NSWCCA 272

Hearing dates:

19 October 2020

Date of orders:

26 October 2020

Decision date:

26 October 2020

Before:

Hoeben CJ at CL at [1]
Harrison J at [2]
Bellew J at [54]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

APPEAL – sentence appeal – where applicant sentenced with co-offender – drug offences – where sentencing judge did not indicate standard non-parole periods – where aggregate sentence imposed – whether failure to indicate non-parole periods requires appellate intervention – whether sentencing judge gave consideration to objective seriousness of offending – whether sentencing judge gave consideration to subjective case

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581

Gal v R [2015] NSWCCA 242

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

R v Brown [2012] NSWCCA 199

Tepania v R [2018] NSWCCA 247

Trimarchi v R [2019] NSWCCA 189

Yeung v R [2018] NSWCCA 52

Category:

Principal judgment

Parties:

Young In See (Applicant)
Crown (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
K Jeffreys (Respondent)

Solicitors:
Ross Hill & Associate (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/49519

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 October 2019

Before:

Acting Judge Madgwick

File Number(s):

2018/49519

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J and the orders he proposes.

2. HARRISON J: Young In See seeks leave to appeal against the sentence imposed upon him by Madgwick A-DCJ on 3 October 2019 at the Sydney District Court. Mr See pleaded guilty on 23 July 2019 and was sentenced to an aggregate term of imprisonment of 8 years commencing on 14 February 2018 with an aggregate non-parole period of 5 years. The details of the offences, together with the maximum penalties and indicated sentences were as follows:

Count	Offence	Maximum Penalty Standard Non-Parole Period	Sentence Indicated
1	Supply methylamphetamine (231.4g) s 25(1) Drug Misuse and Trafficking Act 1985 Form 1 offences for Count 1: Count 2: Supply 3,4-MDMA (5.50g) s 25(1) Drug Misuse and Trafficking Act 1985 Count 3: Supply cocaine (42.88g) s 25(1) Drug Misuse and Trafficking Act 1985 Count 4: Supply heroin (5.62g) s 25(1) Drug Misuse and Trafficking Act 1985	15 years No SNPP 15 years No SNPP 15 years No SNPP 15 years No SNPP	3 years
5	Knowingly deal with proceeds of crime ($27,850) s 193B(2) Crimes Act 1900	15 years	1 year
6	Knowingly take part in supply of commercial quantity of methylamphetamine (499.8g) s 25(2) Drug Misuse and Trafficking Act 1985	20 years SNPP 10 years	4 years
7	Knowingly take part in supply of large commercial quantity of 3,4-MDMA (1,004.4g) s 25(2) Drug Misuse and Trafficking Act 1985	Life SNPP 15 years	5 years
/1 on s 166 certificate	Possess prohibited weapon (extendable baton) s 7(1) Weapons Prohibition Act 1998	14 years (Local Court jurisdictional limit 2 years)	6 months
/2 on s 166 certificate	Possess prohibited weapon (knuckle dusters) s 7(1) Weapons Prohibition Act 1998	14 years (Local Court jurisdictional limit 2 years)	6 months
/3 on s 166 certificate	Possess prohibited weapon (slingshot) s 7(1) Weapons Prohibition Act 1998	14 years (Local Court jurisdictional limit 2 years)	6 months
/9 on s 166 certificate	Possess cannabis (0.53g) s 10(1) Drug Misuse and Trafficking Act 1985	2 years	6 months

3. From the sentence imposed by his Honour, Mr See appeals on the following grounds:

Ground 1(a): His Honour breached s 45(1) of the Crimes (Sentencing Procedure) Act 1999 in not imposing a non-parole period in respect of counts 5 and 6 [sic, counts 6 and 7].

Ground 1(b): His Honour failed to consider the requirements of s 54B of the Crimes (Sentencing Procedure) Act 1999.

Ground 2: His Honour erred in relation to his assessment of the objective criminality of the indicative sentences.

Ground 3: His Honour imposed a sentence which was manifestly excessive.

Facts

4. At the relevant time, Mr See was living in an apartment in Cabramatta with his mother, his sister, and the co-offender (his sister’s husband). In May 2017, a police investigation targeted a person named Pepsi Mola, who was sourcing large quantities of methylamphetamine, cocaine and pseudoephedrine for supply in Sydney, Newcastle and Brisbane. By early June 2017, police discovered that Mr Mola sourced drugs from the co-offender. On 30 August 2017, Mr Mola was arrested while delivering a large commercial quantity of methylamphetamine obtained from the co-offender to an associate in the Newcastle area.

5. Between 7 June 2017 and 4 August 2017, Mr Mola obtained 2,001 grams of methylamphetamine and 283 grams of pseudoephedrine from the co-offender. On occasions Mr Mola would ring Mr See and have conversations with him regarding the availability of drugs and the whereabouts of the co-offender. Mr See facilitated communication between the co-offender and Mr Mola regarding the supply of the drugs.

6. On 12 September 2017, police executed a search warrant at the Cabramatta apartment. They searched Mr See’s bedroom and also his car. In the car police located a small black magnetic box, identified as a concealment method often used to store prohibited drugs.

Count 1 (with Counts 2-4 on Form 1): Possession for supply of drugs located in Mr See’s bedroom

7. In Mr See’s bedroom, police located several plastic bags containing white powder or crystalline substances, as well as tablets and capsules. These items were found in the pockets of a jacket in the wardrobe, inside a lockbox chained under the bed, and elsewhere in the room. The total amounts of prohibited drugs located in Mr See’s bedroom were as follows:

1. 231.4 grams of methylamphetamine, packaged in multiple separate quantities ranging from 1 gram to 34.49 grams (Count 1);

2. 5.50 grams of 3,4 methylenedioxy-methylamphetamine, packaged in quantities ranging from 0.07 grams to 1.35 grams (Count 2, on Form 1);

3. 42.88 grams of cocaine, including one package containing 13.59 grams and another containing 28 grams (Count 3, on Form 1); and

4. 5.62 grams of heroin, including one package containing 3.62 grams (Count 4, on Form 1).

8. Mr See was in possession of these drugs for the purpose of supply. A drug ledger was also located in his bedroom.

Count 5: Knowingly deal with proceeds of crime

9. Police also found a total of $27,850 cash in Mr See’s bedroom, in the following separate quantities:

1. $850;

2. $7,000, inside a padlocked box chained to a set of bedside drawers;

3. $20,000, inside a locked carry case.

Counts 6 and 7: Knowingly take part in supply of drugs found in the Mercedes

10. Police searched a silver Mercedes-Benz sedan that was parked directly at the front of the premises. The car was registered to Mr See’s sister. Under the front passenger’s seat were two heat-sealed packages inside a white plastic bag. The packages contained:

1. 499.8 grams of methylamphetamine (76.5% purity);

2. 501.7 grams of 3,4-MDMA (42.5% purity).

11. Under the driver’s seat was a heat-sealed package in a grey plastic bag containing two clear plastic zip-lock bags, within which were:

1. 251.1 grams of 3,4-MDMA (60.5% purity);

2. 251.6 grams of 3,4-MDMA (31.5% purity).

12. The co-offender’s fingerprints were located on the exterior of the two clear plastic zip-lock bags.

13. CCTV footage from neighbouring premises showed Mr See putting a white plastic bag inside the Mercedes on 28 August 2017. On 30 August 2017, it showed the co-offender meeting with Mr Mola outside the house, retrieving a package containing 501 grams of methylamphetamine from the Mercedes and supplying it to Mr Mola. On 1 September 2017, the CCTV footage showed Mr See entering the Mercedes empty handed, leaving it after about 15 seconds with a white package and taking the package inside the house.

14. Police also located three prohibited weapons in Mr See’s bedroom that he had no permit or authorisation to possess: a black expandable baton in a leather case on the bedside table (s 166 certificate offence /1), two metal knuckle dusters (s 166 certificate offence /2), and a slingshot in a black container, consisting of three elasticised bands secured to a Y-shaped metal frame with a camouflage handle (s 166 certificate offence /3). Police also located 0.53 grams of cannabis in Mr See’s room (s 166 certificate offence /9).

15. On his arrest on 14 February 2018, Mr See participated in an ERISP in which he denied being involved in drug supply.

Criminal history

16. His Honour noted that Mr See was “for present purposes virtually a first offender and this is his first occasion in prison”.

Subjective findings

17. His Honour found that Mr See was of Lao ethnicity, 35 years of age at the time of sentence and 33 years of age when he committed the offences.

18. He also accepted the following contentions from the psychological report:

1. He was born in Laos, but his parents moved to New Zealand when he was a small child. He then moved to Australia when he was about eight and settled in the Cabramatta area.

2. His childhood was noted to be one where the family were “not well-off”, and his Honour accepted that his “father was given to regularly inflicting severe physical punishment on the children, including this offender, including caning them with bamboo stocks”.

3. His parents separated after moving to Australia and he had limited contact with his father thereafter.

4. His adolescence was noted to have been affected by antisocial peers and drug-taking. He was expelled from school in year nine. His employment record was poor.

5. His drug usage began at 14 with cannabis, and progressed to heroin at 15. It has continued since save for various periods when his use has diminished through methadone treatment.

6. Since 2014, when he was about 30, Mr See’s use of heroin was replaced by alcohol and MDMA. There has been a pattern of alternating methamphetamine, heroin, Xanax and a range of other drugs used in order to manage his sleeping and waking cycles.

7. Mr See has attempted to address his drug issues without achieving long term success.

8. Whilst the supply was primarily to fund his habit, his Honour noted that it had progressed beyond that and that he had been “a fairly highly functioning addict”.

19. Mr See provided material that established that he had participated in a remand addiction program and provided a commitment to rehabilitation.

Special circumstances

20. His Honour found special circumstances for reasons that included the fact that the sentence he was intending to impose would be Mr See’s first time in gaol and that the sentence would be “a heavy one”. The non-parole period amounted to approximately 62 percent of the head sentence.

Discount

21. Mr See received a 10 percent discount for his plea of guilty.

Consideration

Ground 1

22. Section 45 of the Crimes (Sentencing Procedure) Act is relevantly as follows:

45 Court may decline to set non-parole period

(1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so--

(a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b) because of any other penalty previously imposed on the offender, or

(c) for any other reason that the court considers sufficient.

…

(2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

23. Section 54B of the Act is as follows:

54B Consideration of standard non-parole period in sentencing

(1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division.

(2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

(3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account.

(4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence.

(5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account.

(6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable.

(7) The failure of a court to comply with this section does not invalidate the sentence.

24. Mr See conceded that the sentence was not “invalidated” by his Honour’s failure to comply with either s 45(2) or 54B(5) of the Act. He nevertheless complained that his Honour failed to consider the standard non-parole periods for the offences that carried them, and failed to indicate non-parole periods for those offences. However, the sentence imposed was an aggregate sentence, which included an aggregate non-parole period of 5 years. Section 45(1) therefore does not apply and the error asserted in Ground 1(a) has not been established.

25. A court that imposes an aggregate sentence of imprisonment is required to indicate the sentence that would have been imposed for each offence, had separate sentences been imposed: s 53A(2)(b). The court is not required to indicate the non-parole periods that would have been imposed unless required by s 54B: s 44(2C). The sentence indicated for an offence therefore represents the total term that would have been imposed.

26. In his remarks on sentence at page 12, his Honour listed the indicative sentences for the eight individual offences (four on the indictment and four on the s 166 certificate) for which the aggregate sentence was imposed. Of those eight offences, Counts 6 and 7 on the indictment (not Counts 5 and 6, as stated in Ground 1(a)) each carry a standard non-parole period. His Honour did not indicate the non-parole periods he would have imposed for these offences as required by s 54B(4). However, the failure to comply with s 54B(4) does not have the capacity to influence the sentence and is not an error requiring the intervention of this Court: Ibbotson (a pseudonym) v R [2020] NSWCCA 92.

27. Mr See appears to contend that his Honour failed to have regard to the applicable standard non-parole periods. The standard non-parole periods are not mentioned in the section of his Honour’s reasons that relates specifically to Mr See although the 15-year standard non-parole period applicable to Count 7 was referred to at the start of the reasons, when dealing with the co-offender.

28. The standard non-parole periods for Counts 6 and 7 were referred to in the Crown Sentence Summary (in Exhibit B) with the Crown’s written submissions on sentence. These were provided to his Honour on the day of the sentence proceedings and his ex tempore judgment. The fact that his Honour indicated different sentences for Counts 6 and 7, which related to drugs found in the same location, indicates that he was conscious of the differing statutory guideposts that applied to each.

29. This ground of appeal is not made out.

Ground 2

30. His Honour made no reference in terms to the “objective seriousness” of any of the offences with respect to Mr See. He maintained that this Court was therefore required to determine whether his Honour assessed the objective gravity of the subject crime and Mr See’s moral culpability.

31. His Honour’s remarks on sentence as to the first two counts noted that there was a quantity of drugs in Mr See’s possession for the purposes of supply that was “not much less” than the commercial quantity and that it was packaged in “small to smallish” quantities. His Honour also referred to the presence of a magnetic box in his car and a substantial amount of money.

32. Mr See submitted that these features pointed to him being a retailer of the drugs, with “the objective criminality falling in the lower range of moral culpability”. His Honour was otherwise silent as to what formed the basis of the criminality of these two offences.

33. With respect to Counts 5 and 6, his Honour repeatedly described Mr See as an “aide and adjunct”, or an “aide and assistant”, and the facts referred to him relaying telephone messages and performing menial tasks, albeit with knowledge of the quantities relevant to the co-offenders. Mr See contended that there was no evidence that he was involved in the transactions themselves, the sourcing or the financing of the trafficking or that he stood directly to gain financially.

34. Mr See submitted in these circumstances that his criminality was objectively in the low range.

35. In the first part of his judgment, his Honour sentenced the co-offender and provided reasons for doing so. In that way, his Honour summarised the circumstances that led to the search conducted by police on 12 September 2017 of the house where the co-offender and Mr See both lived and the Mercedes parked outside. His Honour described the roles of the co-offender and Mr Mola and the type and quantity of drugs they supplied, finding that the co-offender was “in business as a substantial wholesaler of very considerable quantities of drugs”. The co-offender’s offences were assessed as “at least well up in the middle range of comparative seriousness”.

36. Mr See’s offences all arose out of the search conducted on 12 September 2017. As the agreed facts make clear, a number of relevant items were located in his bedroom, including the drugs that were in his possession for supply (Count 1) and the proceeds of drug supply (Count 5). He further knowingly took part in the supply by the co-offender of the prohibited drugs located in the Mercedes (Counts 6 and 7). Accordingly, the Crown submitted that when his Honour proceeded to deal with Mr See, it was unnecessary to repeat the circumstances of the offending as he had earlier referred to the search of the house and the car.

37. His Honour noted the weight and type of each of the drugs located and the amount of money charged as the proceeds of crime. In relation to Count 1, it was noted that the methylamphetamine was packaged in “various small to smallish quantities”, that the total amounted to not much less than the commercial quantity, and that the presence of the money and the hidden box in his car confirmed he had the drugs for the purposes of sale. In the sentencing proceedings, his Honour had described Mr See as a retailer and the Crown had accepted his Honour’s suggestion that Count 1 was about low or mid-range. In relation to Count 5, his Honour noted that the amount of money was “substantial”.

30. With respect to Counts 6 and 7, his Honour referred to Mr See’s involvement as a “secondary participant” and “an aide and adjunct” to the co-offender. The Crown submitted that these findings are consistent with the level of involvement suggested by his counsel in the proceedings, namely “an assistant, a fetcher”. His Honour stated:

“In relation to the more serious charges he appears to have acted, as I have said, as the aide and assistant to the other offender. The agreed facts are that on occasions Mola would ring this offender when Vich See was apparently unavailable, and it is clear that the offender would make enquiries of Vich See and seek to ensure the smooth running of intended and actual transactions between Mola and Vich See. He well knew that Mola and Vich were trafficking very large quantities of a very powerful and dangerous drug, and notwithstanding his subordinate position, knowingly taking the part that he did in those supplies was very serious.”

39. Although his Honour did not attach a specific label to the objective seriousness or objective criminality of Mr See’s offending, he did undertake an evaluative assessment of the relevant factors, including the amount of the drugs and money involved, the circumstances and location in which the drugs and money were found, Mr See’s role, the nature of his conduct, and, for Counts 6 and 7, his culpability relative to the co-offender.

40. Moreover, his Honour nominated different indicative sentences for the offences, thereby implicitly recognising the different offences and the different quantities of drugs. The Crown submitted this demonstrates that his Honour gave appropriate separate consideration to each count to the extent that was practical in the circumstances of the case: Trimarchi v R [2019] NSWCCA 189 at [51].

41. “[A]ssessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences”: Tepania v R [2018] NSWCCA 247 at [107]. The imposition of an aggregate sentence does not extinguish the requirement to assess the criminality involved in the individual offences for sentence: R v Brown [2012] NSWCCA 199 at [17]. However, what is required at a minimum is for the sentencing judge to refer to the essential facts upon which an offender is sentenced and to provide some assessment of, or reflection upon, the seriousness of the offending conduct: Gal v R [2015] NSWCCA 242 at [39].

42. In considering an assertion that a sentencing judge has failed to make any finding of objective seriousness, regard must be had to the sentencing reasons as a whole. In the context of drug offences, Hoeben CJ at CL said this in Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]:

“While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.”

43. The task for an appellate Court is to consider whether, reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment: Yeung v R [2018] NSWCCA 52 at [30].

44. I am satisfied in this case that his Honour gave appropriate consideration to all factors that were relevant to his assessment of the objective seriousness of Mr See’s offending. Without suggesting that there could only be one view of that assessment, it is clear that his Honour came to sentence Mr See with an obvious appreciation of the amounts of drugs and money concerned and the role played by Mr See in the distribution and sale of the drugs and in possessing the proceeds. I do not consider that his Honour erred as alleged. The underlying burden of Mr See’s complaint on this ground is more conveniently considered when dealing with Ground 3.

Ground 3

45. Mr See complained that even though his Honour accepted that he was from a disadvantaged background with long-standing issues relating to his childhood and subsequent drug use, he failed to reflect these concerns in the ultimate result. This was exacerbated by the fact that his Honour’s remarks clearly accepted the absence of any relevant criminal history. Mr See complained that his Honour appears not to have given any consideration to the fact that his rehabilitation prospects were likely to be favourable.

46. In contrast, the Crown re-emphasised the following matters.

47. Mr See was sentenced for four offences that related to the supply of prohibited drugs, including an offence of knowingly take part in the supply of a large commercial quantity of 3,4-MDMA (Count 7), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The objective seriousness of Counts 1, 6 and 7 was elevated by the fact that the quantity of the prohibited drug was considerably above the applicable indictable, commercial or large commercial quantity threshold. The objective seriousness of Count 6 was elevated by the relatively high purity of the 499.8g of methylamphetamine (76.5%). Moreover, the amount of cash that constituted the proceeds of crime for Count 5 was substantial.

48. Three further offences of supplying different prohibited drugs were taken into account on a Form 1, requiring greater weight to be given to the need for personal deterrence and retribution. Mr See was also sentenced for a further three offences of possessing various prohibited weapons and one offence of possessing cannabis that were on a s 166 certificate.

49. Although Mr See’s role with respect to Counts 6 and 7 was secondary to the co-offender and to Mr Mola, he facilitated communication between them to ensure the smooth running of their illegal transactions.

50. His Honour properly took Mr See’s subjective case into account and made a finding that he was entitled to a measure of favourable consideration. A finding of special circumstances resulted in a three year parole period allowing ample opportunity for Mr See to attempt to rehabilitate successfully into the community without further offending.

51. It does not seem to me in all of the circumstances that the sentence imposed upon Mr See was unreasonable or plainly unjust. Mr See committed multiple serious offences. He was actively and knowingly concerned in several aspects of a drug supply business. His involvement may be contrasted with someone whose activities were peripheral or inconsequential.

52. This ground of appeal should be rejected.

Orders

53. In my opinion the following orders should be made:

1. Grant leave to appeal against sentence.

2. Dismiss the appeal.

54. BELLEW J: I agree with Harrison J.

**********

Decision last updated: 26 October 2020