Conviction for Drug Trafficking in NSW

The defendant was convicted of supplying a prohibited drug, specifically 923.1 grams of methylamphetamine, which was deemed a large commercial quantity. Sentenced to 8 years and 3 months in prison, with a non-parole period of 5 years and 4 months.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2016] NSWDC 248 Hearing dates: 23 September 2016 Date of orders: 14 October 2016 Decision date: 14 October 2016 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: [NAME] is convicted;

[NAME] is sentenced to a term of imprisonment of 8 years and 3 months to date from 9 December 2015 and to expire on 8 March 2024, comprised of a non-parole period of 5 years and 4 months and a balance of term of 2 years and 11 months; and

[NAME] is eligible to be released to parole on the expiry of the non-parole period on 8 April 2021. Catchwords: CRIMINAL LAW – DRUG TRAFFICKING – not less than large commercial quantity – methylamphetamine – SENTENCING – principles of sentencing – special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 44 Drug Misuse and Trafficking Act 1985 (NSW) s 25(2) Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW) Cases Cited: Butters v R [2010] NSWCCA 1 Elyard v R [2006] NSWCCA 43 Legge v R [2007] NSWCCA 244 Mansour v R [2011] NSWCCA 28 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 R v [NAME]; R v Hoete [2004] NSWCCA 448 R v Dang [2005] NSWCCA 430 R v Huang [2000] NSWCCA 238; (2000) 113 A Crim R 386 R v Leroy [1984] 2 NSWLR 441 R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369 Regina v Shi [2004] NSWCCA 135 [NAME] v [NAME] (Unreported, [ADDRESS] of Criminal Appeal, 16 October 1998) Tiknius v R [2011] NSWCCA 215 Category: Sentence Parties: [NAME] (Crown) [NAME] ([NAME]) Representation: Solicitor for the Director of Public Prosecutions (Crown) Legal Aid NSW ([NAME]) File Number(s): 2015/3621460 Publication restriction: Nil

Judgment 1. On 23 September 2016, [NAME] pleaded guilty before me to a charge of supplying a prohibited drug, namely, 923.1 grams of methylamphetamine, being an amount which was not less than the large commercial quantity pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). [1]

FACTS 1. On 9 December 2015, the police attached to the Transport Action Group were conducting an authorised drug detection dog operation at Central Railway Station, commencing at about 10:30 am. At 2:45 pm, [NAME] approached a police dog handler at the top of the escalators which separated the country and suburban platforms and asked for directions. [NAME] was carrying a black satchel bag over his shoulder. At that time the drug detection dog "Rachey" was nearby and working with a dog handler, [NAME]. Rachey had a change of behaviour and indicated at [NAME]. 2. [NAME] approached [NAME] and informed him that the dog had detected a scent of prohibited drugs in the free air space around him. [NAME] was advised that he did not have to say anything if he did not want to. When asked if he understood, [NAME] said: "No English. Hong Kong." 3. [NAME] noticed that [NAME] appeared nervous, his skin was pale, his fingers were shaking and he was swallowing hard. On the basis of these observations and the positive indication made by the dog, [NAME] formed the suspicion that [NAME] was in possession of prohibited drugs. 4. [NAME] was asked to place his bag on the ground. He complied but continued to look at the bag from the corner of his eye. [NAME] was then informed that he was going to be searched. Inside the main compartment of [NAME]'s bag, police found a white plastic shopping bag. Inside the bag were four individual clear plastic bags, containing a large quantity of a clear crystalline substance. Rachey made a positive indication. [NAME] was then cautioned and placed under arrest. [NAME] told police that the bag was not his, but agreed that he had been carrying it. When asked if he knew it contained drugs, [NAME] replied that he was "not sure." He also said that someone had told him to keep the bag safe and deliver it. He opened the bag when he first received it at the beginning of the month and saw that there was a white powder inside. He did not ask what was inside the bag. [NAME] said that he had been asked by a friend, whom he first met over the internet and then in person in Hong Kong, to deliver the bag to Perth. He said that he would be taken to dinner and paid when he returned to Sydney, but did not know how much.

5. The conversation with [NAME] was initially in English and then in Cantonese, conducted by a Cantonese speaking police officer. 6. [NAME]'s bag was subsequently seized and he was conveyed to Surry Hills Police Station. In a further search of [NAME]'s bag, a train ticket was located in his name for a trip departing Sydney on 9 December 2015 and arriving in Perth on 12 December 2015. 7. [NAME] participated in an electronically recorded interview with the assistance of a Cantonese interpreter. He agreed that he had taken part in a conversation at the scene which was recorded. [NAME] confirmed that he had been asked by a friend to deliver the bag to a relative of that person in Perth. He knew that friend by the nickname "Chicken." He first met "Chicken" in Hong Kong, where [NAME] became involved in "exporting" goods to mainland China. This involved secretly transporting large quantities of goods such as milk powder or shampoo in his luggage. 8. [NAME] said that he had paid for the trip to Perth himself but he was to be repaid on arriving in Perth. He said he was going to be paid a meal and a handling fee in exchange for making the delivery. He claimed that the bag was delivered to him in Ashfield, where he had been staying. He said he was told not to open the bag but he had done so when he put his clothes in. 9. [NAME] initially told police that he did not know what the substance was but thought it looked like some kind of sugar. He said that it was only when the police searched his bag and removed the substance that he realised it was a drug. He identified a receipt dated 8 December 2015 that was found in the plastic bag as his and suggested it must have fallen inside through a little gap. He maintained that he did not know the bag contained drugs. Later in the interview he was asked whether he had touched the four packages and [NAME] told police that he had touched them because he had never seen drugs before and did not know what kind of drug they were. He said that he had opened the bag and pressed it.

10. On analysis, the substance was determined to be 923.1 grams of methylamphetamine with a purity of 78.5%.

11. The plastic bag and drug packaging were later analysed and a number of fingerprints were developed and determined to have been deposited by [NAME]. [NAME]'s DNA was recovered on a trace swab from the shopping bag and on the flap along the top edge of one of the bags containing the drugs.

12. Police obtained a copy of [NAME]'s bank account in Hong Kong, which was a savings account with [COMPANY]. That revealed a balance, as at 11 February 2016 of HKD 8176.03. [2] 13. [NAME] has produced a letter which was tendered as Exhibit 2 in the proceedings. In that letter, [NAME] expresses remorse for his conduct, and states that he "will devote to whatever necessary steps that is required of me to amend my mistakes." [3] He states that he has suffered depression during his incarceration but because of the language barrier he "could not get proper help from the prison." [4]

14. Also tendered in [NAME]'s case was a psychologist's report from [NAME]. The report obtains a history that [NAME] previously suffered an addiction to crystal methylamphetamine whilst living in Hong Kong. [5]

15. The report also notes that [NAME] has expressed remorse, and that the "exposure to the harsh realities of custodial life has had a salutary effect upon him." [6] Not surprisingly it notes that the "intensity of his incarceration has been increased by the [[NAME]'s] separation from his family and country of origin, as well as language nuances." [7] 16. [NAME] was born in [DATE]. He has four siblings, including two brothers and two sisters. He is third eldest in his family. According to [NAME]'s siblings are aware of his current circumstances, although this is not the case with his parents as he has no desire to upset them, particularly because his father is 80 and his mother in her 70s [8] .

17. According to the report, [NAME] completed school at age 15 and thereafter entered various jobs for about eight years before becoming involved in relocating products from Hong Kong to China. This involved transporting shampoo and hardware, a job [NAME] held for about a year. Through this work, he was brought into contact with drug suppliers and in this context, apparently drifted into using ice which continued until June 2015. [9] 18. [NAME] is not married and has no children. [10] 19. [NAME] obtains a history that [NAME] did not use illicit drugs until 2015 but thereafter, was using up to two "caps" per day. In terms of history, this affected his judgment, perception and impulse control, although he apparently did not experience psychotic breaks. He conceded high levels of paranoia and rebound depression. [NAME] also stated that with escalating drug use, his financial position declined and he claimed that he needed to borrow money, in addition to getting drugs on credit, which led to him incurring a substantial debt. [11] Ultimately, he was able to cease drug use by going "cold turkey." He claimed that he was under pressure from his supplier to repay the debt, and in this setting he acquiesced to a demand to move drugs between Sydney and Perth. [12]

20. A history was also obtained that [NAME]'s mood had deteriorated since his incarceration in light of his social isolation and fear for his future. [NAME] administered the Beck Depression Inventory, which confirmed a clinical impression that [NAME] suffers from a Major Depressive Disorder with features of Anxiety Disorder, according to the DSM-V criteria. His anxiety appears to have been heightened by concern for his family's welfare, particularly now that a substantial quantity of the drugs has been confiscated. [NAME] states that [NAME]'s anxiety is reflected in high levels of agitation. [13] 21. [NAME] asserts that [NAME]'s substance misuse disorder is now in partial remission and the intensity of the symptoms has been augmented by his social isolation and the fact that he receives no visits and support from any individual in this country. [14] [NAME] remains concerned about [NAME]'s indication that would like to end his life and suggested that in this context, that he required treatment. [NAME] also states that [NAME] may require psychotropic medication for depression as well as cognitive behavioural therapy focussed on the development of further relapse prevention strategies, in addition to acquiring techniques to deal with his anxiety. Supportive and motivational psychotherapy, he states, would also be of added advantage. [NAME] also states that given [NAME]'s lack of understanding of English, and the remote likelihood of receiving this type of treatment in custodial environment:- "[4] … Ideally therapy should be undertaken by a Mental Health Practitioner who is fluent in his primary language. Given an absence of prior offending, his clear desire prior to him committing these offences to relinquish his drug use and his expressed intentions of moving forward with his life upon a resolution of these matters, I believe that with support, treatment and supervision his overall prognosis is positive." [15]

OBJECTIVE SERIOUSNESS 1. The Crown has submitted that the offence falls within the mid-range of objective seriousness. 2. [NAME] submitted that the offence falls below the mid-range of objective seriousness for the following reasons:- "(a) [NAME] did not stand to gain a profit from the offending but 'was going to be bought a meal and paid a handling fee in exchange for making the delivery.' (Agreed Facts, paragraph 13) (b) [NAME] was merely acting as a courier … (c) The amount of the drugs was less than 1kg (923.1g). (d) None of the drugs in relation to the offence charged were ever used, consumed or distributed into the community." [16]

1. The Crown did not submit that any of the aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) [17] were engaged with the exception of s 21A(2)(n). 2. [NAME] submitted having regard to s 21A(3)(b) of the 1999 Act that there was no evidence to suggest that [NAME] played any part in the planning of the offence as the "bag was delivered to him in Ashfield where he was staying. He said he was told not to open the bag but had done so when he put his clothes in." [18] 3. [NAME] drew attention to the decision of the [ADDRESS] of Criminal Appeal in Legge v R, where Simpson J held:- "[34] No doubt the offence was planned; but, on the applicant's evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where [NAME] being sentenced was not involved in, or part of, the planning and organisation." [19] 1. [NAME] arrived in Australia on 17 October 2015. On his account, the bag was delivered to him in Ashfield where he was staying. Nevertheless, it is clear that he arrived in Australia for the purpose of delivering the bag and to this end, arranged and paid for a rail trip to Perth himself.

2. I accept that the facts themselves lend some credence to [NAME] being criminally inexperienced and not participating in any broader planning or organised activity with regard to the offending in that he approached police and was proximate to the drug detection dog whilst carrying the drugs. [20] 3. [NAME] has submitted in terms of s 21A(3)(d) of the 1999 Act in that he committed the offence in circumstances of duress that were non-exculpatory and in circumstances of "a brief though intense addiction to ice whilst he was living in Hong Kong and in association with this, acquiring a substantial debt leading in turn to significant pressures and threats referable to his family if the money was not repaid." [21] [NAME] reported that:- "This involved threats against him, as well as his family including a threat to disclose the extent of his debt and addiction to his parents. Given the cultural nuances of the 'loss of face' in this case, these pressures were overbearing and in this setting [NAME] acquiesced to the demand that he move the drugs between Sydney and Perth." [22]

1. The source of the asserted duress is the conduct of persons in another country – a claim that could be easily made. [23] Beyond this, the statements were made to a third party and were not tested in Court. [ADDRESS] of Criminal Appeal has previously stated that considerable caution needs to be exercised in relying on such statements made in such circumstances, without [NAME] giving any evidence and the Crown not conceding it. [24] Indeed the practice of placing material before a sentencing Judge in an attempt to minimise the objective seriousness of a crime, otherwise apparent on the face of the record, has been the subject of criticism. [25] In the circumstances I am unable to find non-exculpatory duress.

2. However, even if [NAME]'s judgment were clouded by his previous addiction and need to repay creditors it provides little mitigation to the objective seriousness of the offence. [26] 3. [NAME] claimed that he did not stand to gain a profit from the offending, but was "going to be bought a meal and paid a handling fee in exchange for making the delivery" and that he performed the task to pay off a drug debt. Again, these were untested self-serving statements and it is appropriate to exercise significant caution in relation to them. [27] In the circumstances I am not satisfied as to the precise nature of any arrangement.

4. In relation to s 21A(2)(i) of the 1999 Act, the Crown made no submission. [28] 5. [NAME] submitted within the terms of s 21A(3)(a) of the 1999 Act that the drugs were intercepted and none of the drugs in relation to the offence charged were ever used, consumed or distributed into the community. That submission needs to be considered in light of what was said in [NAME] v [NAME] [29] : "[34] … culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v [NAME] (1962) 63 A Crim R 402."

1. As indicated, [NAME]'s role involved some planning on his part to transport a prohibited drug. The quantity involved was marginally under double the threshold for a large commercial quantity and had a high purity of 78.5%. Bearing in mind that the large commercial quantity has no upper range and the level of [NAME]'s involvement being somewhat more than a courier, I consider that the objective gravity of the offence falls just below the middle range of objective seriousness.

SUBJECTIVE FACTORS 1. Pursuant to s 21A(3)(e) and (f) of the 1999 Act it was submitted that [NAME] does not have any record of previous convictions and was otherwise of good character. Whilst this fact is acknowledged, in the context of matters of this nature, this carries little weight. In R v Leroy, Street CJ held: "Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because of their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders." [30]

1. Pursuant to s 21A(3)(g) of the 1999 Act it was submitted that [NAME] was unlikely to re-offend for the following reasons: "(a) [NAME] is acutely aware of the significant impact his actions would have on his elderly parents, family and friends (see Exhibit 2); (b) [NAME] accepts responsibility and acknowledges blame for his actions (see Exhibit 2); (c) [NAME] has gained considerable insight into his offending behaviour (see Exhibit 2); (d) [NAME] has no previous criminal record; (e) [NAME] previously had a serious drug problem which led to the offending which was overcome of his volition (see Exhibit 1)." [31]

1. It was further submitted that [NAME] for the purposes of s 21A(3)(h) of the 1999 Act has good prospects of rehabilitation. 2. [NAME] was 22 years of age at the time of the offence. [NAME] also appears to have ceased using drugs and is now in partial remission.

3. I accept for the purposes and within the terms of s 21A(3)(i) of the 1999 Act, [NAME] has through a document presented as Exhibit 2 in the proceedings ,expressed remorse and contrition to the Court for his conduct. In the circumstances I accept that he has good prospects of rehabilitation and is unlikely to reoffend.

SPECIAL CIRCUMSTANCES 1. [NAME] submits for the purposes of s 44 of the 1999 Act that this is a case for special circumstances to be found on the basis of: "(a) [NAME]'s youthful age with good prospects of rehabilitation; (b) [NAME]'s limited education and lack of qualifications; (c) [NAME]'s lack of family support and isolation; (d) [NAME]'s inability to communicate effectively with other inmates and staff; and (e) [NAME]'s psychological issues …" [32]

1. I accept that because of his age, that this is his first time in custody and his good prospects of rehabilitation, that this is a case that calls for some special circumstances to be found. As to the circumstances of his incarceration the evidence before me is set out in the aforementioned report. In particular I noted that [NAME]'s siblings have offered to come to Australia to see him but he is reluctant for this to occur as he does not want them to see him in prison. Beyond that it is clear that he is suffering depression arising from his isolation, concern for his parents and anxiety as to his future. Generally with offences of this kind committed by foreign nationals, communication difficulties in prison and social isolation are inevitable consequences and do not give justifiable cause for complaint. [33] Overall the circumstances may require some recognition but not much. [34] 2. [NAME] has been in custody since 9 December 2015 and the Crown concedes that any penalty is to be imposed from that date.

3. It is not in issue that no penalty other than a term of imprisonment is appropriate in this case.

SENTENCE 1. The effect of the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW) (effective from 1 September 2015) was to increase the penalty in cases where the amount in question was not less than 500 g from the previous threshold of 1 kg by reducing the threshold amount that would bring the offence within a large commercial quantity. [35] The Regulation has increased the maximum penalty for the offence in question to life imprisonment and provided a standard non parole period of 15 years imprisonment.

2. In Markarian v the Queen [36] the plurality of the High Court stated "[31]… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick." 1. s 54A(2) of the 1999 Act specifies that the standard non-parole period represents the non-parole period for an offence in the middle range of objective seriousness. s 54B(2) and (3) of the 1999 Act provide that the standard non parole period for an offence is a matter to be taken into account in determining the sentence subject to the matters otherwise required or permitted to be considered in fixing the appropriate penalty.

2. Both the maximum penalty and the specified standard non-parole period are legislative guideposts for the Court along with other established sentencing practices referenced to the relevant matters such as identified in ss 3A, 21A, 22 and 44 of the 1999 Act as well as other common law principles.

3. It is necessary to ensure that the sentence imposed adequately punishes [NAME] and deters him and others from committing similar offence offences. Further it must make [NAME] accountable for his actions, denounce his conduct and promote his rehabilitation. [37]

4. The mitigating factors are limited in the way I have outlined.

5. For the purposes of s 21A(3)(k) of the 1999 Act, [NAME] has also pleaded guilty at the first reasonable opportunity [38] and the Crown acknowledged that he should be afforded a full 25% discount on sentence which I accept as appropriate.

6. Were it not for the plea of guilty I would have imposed a sentence of 11 years imprisonment. I find special circumstances for the reasons indicated and vary the relationship of the minimum term to the balance of the sentence pursuant to s 44(2) of the 1999 Act.

7. Overall I impose a non-parole period of 5 years and 4 months and a balance of term of 2 years and 11 months making a head sentence of 8 years and 3 months to date from 9 December 2015 and expire on 8 March 2024. [NAME] will be eligible to be released to parole on the expiry of the non-parole period on 8 April 2021.

Endnotes 1. Hereinafter the "1985 Act"

2. Exhibit B 3. Exhibit 2 4. Exhibit 2 5. Exhibit 1 at p 2 6. Exhibit 1 at p 2 7. Exhibit 1 at p 2 8. Exhibit 1 at p 2 9. Exhibit 1 at p 3 10. Exhibit 1 at p 3 11. Exhibit 1 at p 3 12. Exhibit 1 at p 4 13. Exhibit 1 at p 5 14. Exhibit 1 at p 6 at [2]

15. Exhibit 1 at p 6 at [4]

16. Defence Written Submissions, dated 23 September 2016, pp 4 – 5 at [26]

17. Hereinafter the "1999 Act"

18. Agreed Facts at [13] 19. [2007] NSWCCA 244 at [34] (Simpson J with Spigelman CJ and Harrison J agreeing)

20. Agreed Facts at [2]

21. Exhibit 1, p 5 at [1]

22. Exhibit 1, p 4 23. Tiknius v R [2011] NSWCCA 215 at [45] (Johnson J with Tobias AJA and Hall J agreeing)

24. Butters v R [2010] NSWCCA 1 at [18] (Fullerton J with McClellan CJ at CL and McCallum J agreeing)

25. R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369, 377 [58] – [59] (Smart AJ); and 380 [79] (Spigelman CJ)

26. See R v Dang [2005] NSWCCA 430 at [32] (Howie J with Studdert and Whealy JJ agreeing)

27. Butters v R [2010] NSWCCA 1 at [18] (Fullerton J with McClellan CJ at CL and McCallum J agreeing)

28. See: Mansour v R [2011] NSWCCA 28 at [51] (Price J) and Elyard v R [2006] NSWCCA 43 at [14] – [16] (Basten JA) 29. [2004] NSWCCA 135 at [34] (Wood CJ at CL with Spigelman CJ and Simpson J agreeing) 30. [1984] 2 NSWLR 441, 446 – 447 (Street CJ with Glass JA and Yeldham J agreeing); and R v [NAME]; R v Hoete [2004] NSWCCA 448 at [50] (Giles JA)

31. Defence Written Submissions, dated 23 September 2016, p 8 at [48] 32. 32 Defence Written Submissions, dated 23 September 2016, p 10 at [62] 33. [NAME] v [NAME] (Unreported, [ADDRESS] of Criminal Appeal, Spigelman CJ, 16 October 1998)

34. R v Huang [2000] NSWCCA 238; (2000) 113 A Crim R 386, 391 [19] (Adams J with Spigelman CJ and Newman J agreeing)

35. Muldrock v The Queen (2011) 244 CLR 120, 133 [31]

36. Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ) 37. s 3A of the 1999 Act 38. See also s 22 of the 1999 Act DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2016