The Queen v Singh

[2020] NSWDC 665

District Court

New South Wales

Medium Neutral Citation:

The Queen v Singh [2020] NSWDC 665

Hearing dates:

18 August 2020; 14 August 2020, 28 July 2020, 15 June 2020, 1 April 2020, 25 October 2019,

Date of orders:

18 August 2020

Decision date:

18 August 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence. Decision at [63] – [66]

Catchwords:

CRIME – sentence after trial – two counts of supply prohibited drug – co-offender – prospects of rehabilitation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 NSW ss 5, 11

Drug Misuse and Trafficking Act 1985 NSW s 25

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Texts Cited:

None

Category:

Sentence

Parties:

Regina (Crown)
Gurinder Singh (Offender)

Representation:

Counsel:
T Hennessy (Crown)
L-C Hutchinson (Offender)

Solicitors:
C Patrizi (Crown)
P Katsoolis (Offender)

File Number(s):

2017/257048

Publication restriction:

None

Judgment

1. Mr Singh, hereafter referred to as ‘the Offender’, appears before the Court today for sentence in relation to 2 counts on an indictment, for which he was found guilty by a jury. The sentencing in this matter has been delayed due to a number of factors, including initially to allow Mr Singh an opportunity to deal with other charges and, more recently, to allow Mr Singh to agitate an application or bail pursuant to s 11 of the Crimes(Sentencing Procedure) Act 1999 NSW (the CSP Act). The application for bail to facilitate rehabilitation was, for reasons previously given, unsuccessful.

2. The two charges in respect of which Mr Singh is found guilty by the jury were as follows:

1. on 20 July 2017 in Belmore in the State of New South Wales he did supply a prohibited drug namely 28 grams of heroin in breach of s 25(1) of the Drug Misuse and Trafficking Act1985. That was Count 1, also sequence 1, in charge number ending in H824; and

2. on 1 August 2016 at Belmore in the State of New South Wales he did supply a drug, namely 56 grams of heroin in breach of s 25(1) of the same Act. That was Count 2 on the indictment.

3. Each of the 2 charges carries a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. The maximum penalty applicable represents the legislature’s assessment of, and reflects the community’s attitude to, the seriousness of the offending. In exercising the Court’s discretion, a judge must always arrive at an outcome that is just in all the circumstances, bearing in mind the guideposts set by the maximum penalty, and having regard of course to the objective seriousness of the offending and the subjective features of the Offender.

4. Count 1 occurred 20 July 2017, and Count 2 on 1 August 2017, with both offences occurring in the Sydney suburb of Belmore. At the time of the commission of both of these offences, Mr Singh was on bail for a separate proceeding before Magistrate Swain in the Downing Centre Local Court on 24 May 2016. Those proceedings involve the Commonwealth offence of trafficking controlled drugs, namely cocaine.

5. The Offender was arrested 23 August 2017. From the time he entered custody through to 20 February 2018 he was serving out the sentence imposed in respect of the Commonwealth matters. Having completed that sentence on 20 February 2018 he was then bail refused to 5 February 2019 at which time he was granted Supreme Court bail. That was to permit him to undergo rehabilitation. According to the records, he absconded from the rehabilitation facility, only to again be bail refused on 18 February 2019. He has been in custody since that time.

6. It is the obligation of the sentencing judge, following a jury trial, to determine the facts upon which an offender is to be sentenced. In this case, the Court has been assisted by the parties, who have agreed upon a statement of facts which the parties view represents the evidence at trial. Having reviewed the facts agreed between the parties, and the evidence given at trial, I am satisfied that the following facts provide an accurate representation of the evidence.

7. Between May and July 2017 police began investigating the supply of methylamphetamine by Timothy Newton, the co-offender, and his associates. This investigation involved the use of Undercover Operative Officers (UCO’s), in this case by the name of Dave, as well as covert surveillance operatives. All drug transactions between the UCO and the Offender were covertly recorded. The recording also covered the dealings between the UCO and the co-offender, Mr Newton. Through ongoing investigations, police identified the Offender to be a direct associate of and up-line supplier to the co-offender, Mr Newton.

8. From 2013 through to 2018, the Offender leased premises at 38 Platts Avenue, Belmore, and resided there with his wife and 2 children. The Offender’s wife and his 2 sons were overseas from 16 July 2017, and returned on 12 September 2017.

9. The following facts relate to Count 1.

10. On 20 July 2017 Mr Newton and the UCO met at the North Cronulla Beach Kiosk. Newton told the UCO that his up-line supplier could supply him with whatever quantity of heroin that he wanted. Newton told the UCO that his mate, the up-line supplier, had plates, being 12.5 ounces of heroin for sale for about $80,000. Mr Newton made a telephone call to a saved contact, however the call was not answered.

11. Later that day, several texts were exchanged between the UCO and Newton, arranging to meet on Mitchell Road, Cronulla, and drive together to obtain drugs from Newton’s up-line supplier, the Offender. Newton navigated the UCO to the rear car park of the St George Hotel. The UCO parked the vehicle and Newton said, “I’ll go and get it”, and alighted from the vehicle. Newton was observed walking from the rear car park into the St George Hotel through the hotel bistro, before exiting the hotel through the front entrance and walking along Canterbury Road and Platts Avenue in Belmore.

12. Newton entered the premises at 38 Platts Avenue, Belmore. Newton then exited 38 Platts Avenue and walked along Canterbury Road, entering the St George Hotel front entrance and exiting St George Hotel at the rear car park. Mr Newton entered the UCO’s vehicle and handed him a freezer bag tied with a knot at one end, containing a beige coloured substance, which he indicated was an ounce of heroin.

13. After receiving the bag the UCO paid Newton $8,500 cash. The UCO said to Newton, “Are you taking the money back to him now”, to which Newton replied, “Yes.” After this conversation, Newton alighted from the vehicle with the $8,500 cash, and was observed walking back to and entering 38 Platts Avenue, Belmore.

14. The freezer bag with the tied knot was seized by police and submitted for analysis. It was demonstrated the bag contained 28 grams of heroin with a purity of 49.5%. A crime scene officer took a swab of the knotted area of the freezer bag. On 8 September 2017 FASS determined that the Offender was the major contributor to DNA on the knotted area of the freezer bag.

15. The following facts relate to Count 2.

16. On 21 July 2017 the UCO and Newton had a conversation by text message, where Newton told the UCO that his up-line supplier had three plates of heroin at 12.5 ounces per plate at the price of $80,000, as discussed in their conversation on 20 July 2017. On 1 August 2017 Newton and the UCO met at the North Cronulla Beach Kiosk where they spoke about Newton’s up-line supplier. Newton told the UCO that his mate had already sold one of the three plates of heroin. The UCO said that he wanted one plate of heroin for $80,000 and Newton replied, “Yeah, I asked him yesterday about it and he said, ‘Yeah, yeah, they’re 80 something.’”

17. Newton sent a text message to a contact saved as LE ending in digits 580. Newton then made a phone call to the same number, which was not answered. After the meeting, that same day, Newton texted the UCO and told him his supplier only had 2 ounces rather than two plates available.

18. Following the text messages exchanged, the UCO and Newton had a telephone conversation. As Newton was ill, it was arranged that the UCO would meet directly with the up-line supplier at the St George Hotel rear car park. Whilst the UCO drove to the St George Hotel the UCO, Newton had a further text message conversation where he told the UCO that the supplier was going to meet him on the corner of Rod Street and Kingsgrove Road.

19. As directed by Newton, the UCO drove into Rod Street and parked on the corner of Rod Street in Kingsgrove Road. When the UCO arrived he sent a text message to Newton stating, “I’m here”. A short time later the Offender drove up in a silver Honda CRV wagon bearing registration CWP23H and stopped alongside the UCO’s vehicle.

20. The Offender indicated to the UCO to follow him. The UCO followed the vehicle and parked behind it outside 38 Platts Avenue. The Offender exited the vehicle ending 23H and directed the UCO to enter his vehicle. A conversation commenced where the Offender confirmed that he was a mate of Newton and that Newton had told him the UCO was interested in heroin and ice and wanted to purchase a plate.

21. The UCO asked the Offender for a plate, 12.5 ounces of heroin, and the Offender said he only had 2 ounces left. The Offender and the UCO exited the vehicle, and walked through the gate and down the driveway of 38 Platts Avenue. They entered a single car detached garage at the rear of the premises. In the garage the UCO saw a certificate on the wall bearing the name Gurinder Singh. The UCO and the Offender discussed the transaction.

22. The UCO and the Offender walked from the premises to their respective vehicles. The Offender removed a box from underneath his vehicle. The UCO removed cash from his vehicle. The Offender and the UCO exchanged phone numbers, and the Offender told the UCO that his phone number was 0424 201 580.

23. Both walked back into the garage at the rear of the premises. The Offender opened the black lock box which contained two freezer bags with knots tied at one end, each containing a beige coloured powder. The Offender placed a set of digital scales on the coffee table in front of the UCO and weighed each bag.

24. The UCO asked the Offender “Is this the same as last time?”. The Offender replied that it was. The UCO paid the Offender $15,000 cash for the two freezer bags. The bags were seized by police and submitted for analysis. It was determined that the bags contained 56 grams of heroin, at a purity of 48.5%.

25. The vehicle ending 23H was registered in the name of the Offender’s wife, Ms Reem, of 38 Platts Avenue at the time of the offence

26. Those are the facts upon which the sentence will proceed.

27. The Offender’s subjective case was derived largely from the following documents:

1. a report by Tim Watson-Munro, psychologist, 1 August 2014, (Exhibit 1);

2. a further report by Mr Watson-Munro, 5 June 2020 (Exhibit 2); and

3. a character reference by a Ms Reem (Exhibit 3).

28. Exhibit 1 was prepared in relation to a separate firearms supply offence for which the Offender was to be sentenced in 2014. In that report Mr Watson-Munro described the Offender as a cooperative, though somewhat anxious man, who despite never having had any psychiatric or psychological attention had some deficits in his personality and character which needed to be addressed.

29. The author noted that the Offender was born in the Punjab in India in October 1966 and is the youngest of 4 children, and that he lost his elder brother to liver cirrhosis at the age of 59 in 2001. The report suggested a possibility of some genetic determinant leading towards a propensity for addiction. Absent any clear evidence supporting that suggestion, I am not prepared to give it any weight.

30. The author noted that the Offender was evidently diagnosed with attention deficit hyperactive disorder, which offered some explanation as to his attraction to stimulant drugs such as cocaine, given that they work in a similar fashion neuro-chemically to dexamphetamine, a drug used to treat the condition. Again, however, this opinion was offered without any evidence to materially support it, and is approached with caution.

31. In addition to offering insights as to the Offender’s work history, including working as a labourer, taxi driver, mail sorter, the author noted the Offender’s previous de facto relationship, from which he had 3 children as well as his current marriage, in which he has another 2 children. Mr Watson-Munro pointed to the breakdown of the Offender’s de facto relationship, as well as adjustment difficulties faced when migrating to Australia, as being responsible in part for his addiction to cocaine, which was recorded at the time of the report in 2014. It was said that these factors also contributed to his exacerbated depression, affected judgment, increased alcohol abuse and general anxiety.

32. At the time of the first report, the Offender denied the use of intravenous drugs or taking benzodiazepine. The author described the Offender as being well oriented in time, place and person with no indications of major psychiatric disturbance. He also noted that due to time constraints testing was not undertaken as part of that interview.

33. Mr Watson-Munro considered the Offender to be cooperative, and there was concern that he appeared clearly anxious and suffering a degree of reactive depression.

34. The second report is dated 5 June 2020. Again, the author noted that the Offender was cooperative, though depressed and anxious. It was noted that since his sentence and subsequent release from the previous offending, he had returned to live with his family and commenced working as a truck driver, although this ceased after some 6 months due to chronic back pain. There was reference to the possible need for some surgery, as well as another condition, being type 2 diabetes.

35. In relation to drug use, the Offender reported ceasing heroin use, however had commenced using methylamphetamine, smoking up to half a gram per day. This addiction reportedly caused the first breakdown in his marriage, with the Offender reporting severe sleep deprivation, paranoia, alcohol dependence and rebound depression during the peak of his addiction.

36. The Offender told the psychologist that since his arrest he had remained drug-free in custody, which had led to a dramatic improvement, as well as improvements in his state of health and mental equilibrium. The author noted a clearer insight by the Offender into the subject offending, who reported as being sorry for what he did and expressed the need to change. He also expressed sorrow for affecting innocent people. He was eager to maintain his rehabilitation for the benefit of his wife and children.

37. Applying the DSM-5 criteria, the psychologist assessed the Offender as suffering severe and recurring depressive disorder including feelings of pessimism and guilt and low self-esteem. Mr Watson-Munro was not required for cross-examination, and his opinion was not challenged. Although it remains an opinion expressed out of Court, and based upon a history provided by the Offender, I accept the opinion of Mr Watson-Munro that the Offender suffers from a severe and recurring depressive disorder.

38. I have also had regard to Exhibit 3, namely the reference by his wife of 17 February 2019. This was presumably obtained in support of an application for bail.

39. In the reference Ms Reem referred to her relationship between herself and the Offender as well as his relationship with their children, and expressed a desire for him to return home – a desire shared by her children. She reffered to the fact that her husband fell into depression as a result of drug use, and has suffered from depression and hardship. Her opinions, even at that stage, mirrored the desire of the Offender to rehabilitate himself.

40. Other material has been made available to me for the purpose of sentence. I do not intend to recite all of that material, but I do provide the following brief chronology of events relevant to the Offender and the sentence:

3 October 1966	Offender born (now 53 years old).
1985	Moved to Australia working as a builder’s labourer, in a foundry, as a taxi driver and in a mail room.
1992	First offence involving violence, domestic violence.
1997	Split from first wife/de facto partner. Same year started using cocaine and MDMA.
2000	Sentenced for his drug offence.
27 July 2003	Released on parole.
2008	Sentenced for importing a commercial quantity, a sentence of nine years, two months with a non-parole period of five years, six months.
11 February 2011	Released on parole.
2014	Sentenced for selling a pistol, fixed term of 15 months.
1 August 2014	First interview with Mr Watson-Munro.
13 August 2014	Released on parole.
2014	Undertook Smart Recovery Program.
2016	Commenced receiving the disability support pension for reasons which included anxiety and depression.
20 July 2017 and 1 August 2017	Subject offending occurs, at which time Offender was on bail.
23 August 2017	Arrested for the subject offending, thereafter serving a sentence until 20 February 2018 for Commonwealth offences re trafficking.
2017	Sentenced to a fixed term of six months for trafficking.
26 February 2018	Sentenced for the Commonwealth offences expired, but then he was bail refused in relation to the current charges and the other charges which were originally on the same indictment but severed on the application of the accused prior to the commencement of the trial before me.
2 July 2018	Committed for trial in relation to the subject matters.
5 February 2019	Granted Supreme Court bail and referred to Odyssey House.
12 February 2019	Left Odyssey House.
18 February 2019	Bail refused by Syme DCJ of this Court.
13 May 2019	First trial not reached.
8 October 2019	Commencement of trial before me.
14 October 2019	Jury returned with verdicts of guilty in relation to Counts 1 and 2.
25 October 2019	Mr Newton, the co-offender, sentenced by Zahra SC DCJ in the District Court.
29 May 2020	The second interview between the Offender and Mr Watson-Munro leading to the report of 5 June 2020.
15 June 2020	Sentence hearing commenced but interrupted by s 11 bail application.
28 July 2020	Section 11 bail application dismissed.
14 August 2020	Sentence hearing resumed.

41. Written submissions were prepared by both the Crown and the Offender. After some discussion between the Court and the counsel for both the Crown and for the Offender the scope of disagreement between them was narrowed.

42. In relation to the objective seriousness of the offending, it was contended on behalf of the Offender that the offending did not rise above the mid-range of seriousness for offences of this type. In support of that submission, reference was made to:

1. the period of offending;

2. the total quantity of drugs;

3. the purity of the drugs;

4. the level of planning or sophistication;

5. the purchase price and financial gain; and

6. the role of the Offender.

43. The Crown also made submissions in relation to the objective seriousness of the offending, and on the last occasion submitted that the objective seriousness was more than that conceded on behalf of the Offender.

44. In the Crown’s submissions, MFI 1, considerable emphasis was placed on the fact that the Offender was on conditional liberty at the time of the subject offending, and that the offending took place at premises to which the Offender was bailed. Reference was also made by the Crown to an aggravating feature of the offending being the prior record of the Offender, although that does not impact upon the objective seriousness of the offending.

45. Whilst a prior criminal record cannot be taken into account when determining the objective seriousness of the offence, and a prior record does not have the effect of aggravating the offence, it may either deprive the Offender of leniency, or indicate that more weight is to be given to retribution, personal deterrence, and the protection of the community.

43. In terms of his prior convictions, I accept the submission advanced on behalf of counsel for the Offender that it is not an aggravating factor, but does deprive him to a finding of good character and any leniency which may flow.

44. Returning to the question of objective seriousness. I find that the objective seriousness of the offending in relation to both Counts is slightly above the midrange, having regard to the fact that:

1. the Offender was on conditional liberty;

2. the amount of the drug involved, noting in relation to Count 1 it was 28 grams and in relation to Count 2 it was double that, namely 56 grams; and

3. most significantly, recognition of the role played by the Offender.

48. It was conceded as an Agreed Fact that the Offender was an up-line supplier to Mr Newton. Mr Newton was dealing with purchases on the street, and for that reason would be considered to be a street level dealer. I note that at his sentence hearing he was referred to variously as a mid-level street dealer by the Crown, and as a low level street retailer on behalf of the accused by his counsel.

49. I note that Zahra SC DCJ considered Mr Singh to be an up-line supplier, and his Honour considered the offending of Mr Newton was substantially less than that of the Offender Mr Singh. As findings made by another judge in the context of another sentence, albeit for some of the charges relating to the same offences, I do not rely upon the findings made by Zahra SC DCJ. I do, however, find that the Offender Mr Singh was, in the words used by the parties in the Agreed Facts, an “up-line supplier” to Mr Newton, who is very much a street level dealer.

50. I confirm my finding of objective seriousness that it falls slightly above the mid-range for both offences. I find that the statutory aggravating factor of conditional liberty apply. I have already commented upon the prior convictions and the manner to which that should be put in the context of this Offender.

51. In terms of mitigating factors, I informed counsel for the Offender last Friday that I intended to find the prospects of rehabilitation, and therefore the risk of reoffending, as being guarded. I maintain that finding.

52. In terms of remorse, I am unable make a finding in a statutory sense, however I do accept that in the course of the consultation with the psychologist, the Offender did express remorse for his behaviour and the effects upon others. I would describe that as being limited contrition or qualified remorse in the circumstances.

53. Given his history of addiction, as well as a problematic upbringing, which is referred to in the report by Mr Watson-Munro, I find that the Offender has a relatively strong subjective case, characterised since 1997 by addiction to drugs and the offending to which I have already made reference.

54. It is necessary in considering the appropriate sentence in this matter to have regard to the sentence imposed upon the co-offender Mr Newton. I pause, however, to observe that parity does not directly apply in a strict sense, as they are both being sentenced for a different configuration of offences. Whilst Mr Singh is being sentenced for the 2 counts on the indictment, namely both in breach of s 25(1) for 28 grams and 56 grams of heroin respectively, Mr Newton was sentenced for two charges, one, aid supply on an ongoing basis, for which Count 1 on Mr Singh’s indictment formed supply number 4, and secondly, a count on an indictment for supplying prohibited drug not less than a commercial quantity. That was 357.9 grams.

55. The second count on Mr Singh’s indictment was a charge on a Form 1 document attaching to Count 1 in Mr Newton’s case. Accordingly, it is not possible to determine the extent to which the Count 2 on Mr Singh’s indictment contributed to the sentence imposed upon Mr Newton.

56. Similarly, it is not possible to ascertain the extent to which the first count in Mr Singh’s case bears upon the sentence imposed in relation to the ongoing supply charge in Mr Newton’s case. Further, the sentence imposed upon Mr Newton was on the face of a stronger subjective case, where the sentencing judge made findings consistent with considerations enunciated in Bugmy v The Queen [2013] HCA 37. More significantly, the sentence imposed upon Mr Newton was done so after a reduction of 25% on account of an early guilty plea. Mr Singh does not get any such reduction.

57. Mr Newton was sentenced to an aggregate head sentence of 4 years, 6 months, and an aggregate non-parole period of 3 years, after a finding of special circumstances was made and the sentence reduced for the guilty plea. The indicative sentence provided in relation to sequence 1, the ongoing supply charge, was 2 years and 8 months, after discount, and for the supply of prohibited drug not less than commercial quantity, 4 years after discount.

58. Having careful regard to the differences which would inform a variation in sentences between Mr Newton and Mr Singh, I have had careful regard to the sentence imposed by Zahra SC DCJ and I am satisfied that the sentence to be imposed on Mr Singh will not give rise to any sense of grievance.

59. Before turning to sentence, I am satisfied that the s 5 threshold is met and that no sentence other than one of imprisonment and in this case full-time custody is reasonable. Further, I am satisfied that the evidence establishes special circumstances on the basis of the desire and need for rehabilitation, together with the risk of institutionalisation by reason of Mr Singh’s prolonged period in custody. He would benefit from a longer than usual period on parole, in order to address his continued rehabilitation.

60. I intend to impose an aggregate sentence in relation to the two charges. Before doing so, it is necessary to have regard to questions of accumulation, concurrency and totality. It is incumbent upon a sentencing judge to fix an appropriate sentence for each offence, and then consider questions of accumulation and concurrency.

61. In relation to the first charge for sentence, namely the supply of 28 grams of heroin, I provide an indicative sentence of 3 years.

62. In respect of the second charge for sentence, namely supply 56 grams of heroin, I provide an indicative sentence of 4 years.

63. Mr Singh, you are convicted of two charges:

1. supply a prohibited drug, namely 28 grams of heroin, in breach of s 25(1) of the Drug Misuse and Trafficking Act 1985; and

2. a second count of the same charge, namely supply a prohibited drug, this time 56 grams of heroin, in breach of the same provision.

64. In relation to those convictions I impose an aggregate sentence consisting of a non-parole period of 3 years, commencing at 20 February 2018, which I pause to note was the commencement date agreed between the parties. I impose a head sentence of 5 years.

65. The non-parole period will expire on 19 February 2021. The head sentence will expire on 19 February 2023.

66. Mr Singh, you will be eligible for parole on 19 February 2021, being 19 February next year. The head sentence expires on 19 February 2023.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 66 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

Associate

James Bailey

Decision last updated: 03 November 2020