• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Catchwords: CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness
CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(b), 3A(d), 5(1), 7(1), 21A, 21A(2), 21(3) 21A(3)(g), 21A(3)(h), 21A(3)(e), 21A(3)(f), 25D(2)(a), 54A(1)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)(a), Sch 1

Cases Cited: Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195
Chiarlini v R [2023] NSWCCA 227
DH v R [2022] NSWCCA 200
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Li v R [2023] NSWCCA 112
Meoli v R [2021] NSWCCA 21
Nguyen v R [2024] NSWCCA 178
Zuffo v R [2017] NSWCCA 187

Category: Principal judgment

Parties: Wai Sze Chung (Applicant)
Rex (Respondent)

Representation: Counsel:
Mr T Woods (Applicant)
Mr J Styles (Respondent)
Solicitors:
XD Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00276584

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 24 November 2023, Ms Wai Sze Chung (the applicant) was sentenced to a term of imprisonment of 6 years and 9 months, to commence on 23 February 2023 and expire on 22 November 2029, with a non-parole period of 5 years, expiring on 22 February 2028, following her plea of guilty to an offence of supplying a large commercial quantity of a prohibited drug (998.3g of methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant sought leave to appeal the sentence pursuant to s 5(1)(c) of the Criminal Appel Act 1912 (NSW), ultimately relying upon three of five initial grounds of appeal. They were:

“(2) The sentencing Judge erred in assessing the seriousness of the applicant’s conduct in that his Honour:

(a) failed to assess it in the context of the range of conduct that may be captured by s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and

(b) took into account assumptions about the workings of criminal organizations unrelated to the index offence.

(3) The sentencing Judge erred:

(a) in failing to take into account that the applicant had good prospects of rehabilitation per s.21A(3)(h) of the Crimes Sentencing Procedure Act 1999 (NSW), or

(b) in failing to explain in the reasons for judgment how the matter had been taken into account.

(5) The applicant was denied procedural fairness in that she was not given an opportunity to respond to adverse implications arising out of the link drawn between this case and the workings of criminal organizations involved in the cultivation of marijuana.”

Held (Ierace J, Stern JA and Fagan J agreeing), granting leave and dismissing grounds 2 and 5 but granting leave and upholding ground 3:

(1) As to ground 2(a), the sentencing judge properly assessed the applicant’s role in the supply. It was open on the evidence for his Honour to find that there was no direct or indirect evidence of a higher level of involvement in the enterprise of others: [51] (Ierace J) (Stern JA at [1] and Fagan J at [4] agreeing)

(2) As to ground 2(b), the sentencing judge’s reference to offenders involved in cannabis cultivation enterprises was by way of contradistinction. His Honour expressly distinguished the applicant’s circumstances, which did not involve a hierarchy, from the situation of those offenders, which often did: [50], [53] (Ierace J) (Stern JA at [2] and Fagan J at [4] agreeing)

(3) As to ground 5, the submission that the sentencing judge’s reference to the silence of low-level offenders in cannabis cultivation enterprises being often bought by their superiors paying their legal fees led to an available inference that his Honour contemplated that may have occurred in the instant case, is rejected. The passage in question did not provide a possible basis for that inference: [55]-[57] (Ierace J) (Stern JA at [2] and Fagan J at [4] agreeing)

(4) As to ground 3, while the sentencing judge acknowledged factors relevant to the applicant’s subjective case, it cannot safely be inferred that his Honour took into account the applicant’s good prospects of rehabilitation in the process of instinctive synthesis: [64]-[68] (Ierace J) (Stern JA at [1] and Fagan J at [4] agreeing)

Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195; Li v R [2023] NSWCCA 112, applied.

(5) The applicant is to be resentenced to a term of imprisonment of 6 years, reduced by 25 per cent for the applicant’s early plea of guilty to 4 years and 6 months with a non-parole period of 3 years and 2 months, noting mitigatory considerations including that the applicant has no record of previous convictions, was of good character prior to the offending, has good prospects of rehabilitation and is unlikely to reoffend: [68]-[74] (Ierace J) (Stern JA at [3] and Fagan J at [4] agreeing)

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

JUDGMENT

1. STERN JA: I have had the very great benefit of seeing a draft of the judgment of Ierace J. I agree with his Honour that ground 3 should be upheld and I agree with his Honour’s reasons for so finding. I agree with his Honour’s reasons for rejecting ground 2.

2. As to ground 5, whilst the sentencing judge made observations in his remarks on sentence to the effect that there was “some similarity” between the applicant’s case and the case of the other hypothetical offenders his Honour described in the passage set out by Ierace J at [39], I am satisfied that ultimately no inference adverse to the applicant was drawn by his Honour on the basis of such similarity. This is apparent from his Honour’s identification that in the applicant’s case there was no evidence of “any higher level in the hierarchy” and thus, logically, no “principals” paying her legal fees in exchange for her silence. It follows that I agree with Ierace J that there was thus no denial of procedural fairness.

3. I also agree with the sentence that his Honour proposes on resentence. I would only add that, on resentence, in addition to the matters relied upon by Ierace J, including the matters set out in the further evidence tendered at the appeal hearing, I have taken into account what I consider to be the applicant’s low risk of reoffending.

4. FAGAN J: I agree with Ierace J. I also agree with Stern JA’s observations about the passage in the remarks on sentence with which ground 5 is concerned.

5. IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence imposed upon her by his Honour Judge King SC on 24 November 2023, following her plea of guilty to an offence of supplying a large commercial quantity of a prohibited drug, namely, 998.3g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A large commercial quantity of methylamphetamine is not less than 0.5kg: Sch 1 of the Drug Misuse and Trafficking Act.

6. The applicant was sentenced to a term of imprisonment of 6 years and 9 months, that commenced on 23 February 2023 and will expire on 22 November 2029, with a non-parole period of 5 years, to expire on 22 February 2028. The maximum penalty for the offence is imprisonment for life (and/or 5000 penalty units): s 33(3)(a) of the Drug Misuse and Trafficking Act. It has a standard non-parole period of 15 years: s 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). The sentence imposed on the applicant took into account a mandatory 25 per cent discount for the utilitarian value of her early plea of guilty, pursuant to s 25D(2)(a) of the Sentencing Procedure Act.

7. The applicant initially advanced four grounds of appeal, although two were not pressed at the hearing of the application. The remaining grounds were:

“2. The sentencing Judge erred in assessing the seriousness of the applicant’s conduct in that his Honour:

(a) failed to assess it in the context of the range of conduct that may be captured by s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and

(b) took into account assumptions about the workings of criminal organizations unrelated to the index offence.

3. The sentencing Judge erred:

(a) in failing to take into account that the applicant had good prospects of rehabilitation per s.21A(3)(h) of the Crimes Sentencing Procedure Act 1999 (NSW), or

(b) in failing to explain in the reasons for judgment how the matter had been taken into account.”

8. At the hearing, the applicant was granted leave to add an additional ground:

“5. The applicant was denied procedural fairness in that she was not given an opportunity to respond to adverse implications arising out of the link drawn between this case and the workings of criminal organizations involved in the cultivation of marijuana.”

The sentence proceedings

Procedural history and pre-sentence custody

9. The applicant committed the offence on 9 June 2022, when she was 27 years old. She was arrested on 15 September 2022 and remanded in custody until 25 January 2023, when she was granted Supreme Court bail, conditional upon her reporting daily to police and, effectively, being subject to home detention. She pleaded guilty to the offence on 31 May 2023 while the matter was still in the Local Court, and did not oppose a detention application that was granted on 6 July 2023 following her guilty plea. The sentence hearing took place over two days, on 22 and 23 November 2023. The applicant was sentenced the following day, on 24 November 2023, by which time she had been held on remand for a total period of 275 days. Her period on bail was 4 months and 5 days.

The Crown case

10. The Crown bundle included a statement of agreed facts (the agreed facts) and a sentencing assessment report. The applicant had no prior convictions.

The agreed facts

11. The agreed facts were to the following effect.

12. On 11 March 2022, the New South Wales Police Force was granted authority to engage undercover officers (UCOs) in negotiations or agreements for the supply of prohibited drugs. On 7 June 2022, one such UCO (UCO 1) corresponded with an unknown person and arranged to purchase 1kg of methylamphetamine, for $150,000.

13. The agreement was that the exchange would occur at two specified locations. On 9 June 2022, an unknown person sent UCO 1 a message saying the person collecting the cash would be at the first location, and that the person supplying the methylamphetamine, who would be an “Asian woman”, would do so at the second location.

14. A second UCO (UCO 2) was deployed to deliver the cash at the first location. At 3:30pm, an unknown male approached UCO 2’s vehicle, entered the front passenger seat and handed UCO 2 two Chinese Yuan banknotes. UCO 2 photographed the banknotes and sent them to UCO 1. UCO 2 then provided the unknown male with $150,000 cash inside a white and blue bag. The unknown male counted the cash and departed the vehicle, and UCO 2 drove off.

15. About the same time, at 3:30pm, UCO 1 attended the second location, to collect the methylamphetamine. About 10 minutes later, the applicant arrived at the location alone, driving a vehicle. She parked her vehicle and got out, carrying a plastic bag with the word “Fancylife” written on it (the Fancylife bag). She entered the front passenger seat of UCO 1’s vehicle, placed the bag in the front passenger footwell and said to UCO 1, “that’s yours”. She was wearing a white beanie, white jumper, blue jeans and a black face mask.

16. No other conversation took place between the applicant and UCO 1. Pursuant to the arrangement, UCO 1 showed the applicant the photograph of the Yuan banknotes. The applicant took a photograph of it and sent it to an unknown person via an app. Shortly afterwards, the applicant left UCO 1’s vehicle and drove to her apartment building. Inside the Fancylife bag that she left in the vehicle was a large plastic resealable bag containing white crystal, which was submitted for forensic analysis and found to constitute 998.3g methylamphetamine with a purity of 80 per cent.

17. Police obtained CCTV footage from the lift at the applicant’s apartment building for the date of the offence, in which she could be seen for two minutes from 3:28pm holding the Fancylife bag and wearing the same outfit that she was wearing at the time of the offence.

18. On 15 September 2022, around 10am, police executed a search warrant at the applicant’s apartment, in her absence, during which they located an item of clothing that she was wearing during the offence. At 11:30am that day, the applicant was arrested at her workplace. A Mandarin-speaking police officer, who was present during the arrest, cautioned her. The applicant was conveyed to Fairfield Police Station, where a Mandarin interpreter assisted in her charging, interview and a forensic procedure process.

19. The applicant participated in an electronically recorded interview with a suspect person (an ERISP), during which she said that she resided by herself at her apartment and declined to answer any questions about the offence.

20. Her plea of guilty was accepted on the basis of recklessness; that is, as stated in the agreed facts:

“… she was aware that there was a significant chance that the substance she supplied to [UCO 1] was a prohibited drug.”

The sentencing assessment report

21. The Crown tendered a sentencing assessment report by Jodie McMahon, team leader at the Silverwater Parole Unit, dated 1 November 2023. Ms McMahon reported that the applicant’s parents resided in Hong Kong and that an older brother resided in Australia. She had a partner, who, at the time of the writing of the report, continued to support her, and informed Ms McMahon that she could live with his family upon her release to the community. The applicant had a history of ongoing employment, no prior contact with the justice system in Australia or overseas and no history of drug use. Her employer advised that she was “a good worker” and that full time employment would be available to her upon release. Ms McMahon noted that if supervision and interventions were contemplated, there would be a “need to consider Ms Chung’s limited English language skills”.

22. As to the offence, Ms McMahon stated:

“While [the applicant] stated that while she accepts responsibility for her actions, she claimed to be unaware that the parcel she delivered contained drugs.

[The applicant] claimed that she delivered a parcel as a favour for a colleague and in hindsight should have asked what the contents were before agreeing.

She reported that she needs to be less trusting and more cautious in the future.

…

[The applicant] denied any financial gain for her role in the offence.

Despite having debts for work related expenses, she stated that she was delivering the parcel as a favour only.”

23. Ms McMahon assessed the applicant as having a low risk of reoffending according to the risk assessment tool known as the Level of Service Inventory–Revised (the LSI–R), and as being suitable for undertaking community service work.

The defence case

Psychological report

24. The defence submitted a report by a forensic psychologist, Kris North, dated 25 October 2023. Ms North assessed the applicant during a two-hour audiovisual link interview on 19 October 2023, with the assistance of an interpreter in the Cantonese language. The applicant’s background, as recorded in Ms North’s report, was to the following effect.

25. The applicant is a Hong Kong national. She arrived in Australia on a working visa in 2014 when she was aged 19, subsequently obtaining student visas to undertake various courses, including in English, marketing and accounting, and cooking. She has a “stable history of employment, including having worked in Hong Kong and Australia” and “nil prior history of antisocial or offending behaviours”. She reported no history of alcohol abuse or illicit drug use.

26. The applicant has “a stable and prosocial family upbringing”. Her older brother resides in Australia, although her parents continued to reside in Hong Kong. She maintained regular contact with her parents and brother, whom she said had supported her throughout her court matters. At the time of assessment, the applicant had been in a relationship with her current partner for approximately three years. He and his family “had been supportive of her throughout her legal matters”, including by accommodating her while she was on bail.

27. As to the applicant’s mental health, she described experiencing stress, elevated anxiety and difficulties with her sleep in 2020 and 2021, due to financial issues and being unable to work during the COVID-19 pandemic lockdown. She had not been formally assessed or diagnosed with any mental health issues. She described experiencing mild symptoms of depression and anxiety since being on remand. Her scores on a self-report scale, known as the DASS-42, which measured the severity of depression, anxiety and stress symptoms, placed her in the mild range for depression and in the normal range for anxiety and stress. Ms North’s opinion was that the applicant’s symptoms were “related to her current environment and anxiety over her legal matters” and were “assessed as being reactive in nature and did not indicate any significant mental health issues”.

28. In relation to the applicant’s risk of reoffending, Ms North said:

“[The applicant] described her involvement in the offence as having related to her naivety however had accepted responsibility for her behaviour and expressed regret. [She] had also remained optimistic about her future and was noted to continue to enjoy the support of her family and boyfriend whilst in custody. With regard to her risk for reoffending, my assessment also indicated no criminogenic risk factors (eg. past offences, substance use, antisocial acquaintances, unstable employment, lack of social support) and as such [her] risk for reoffending was assessed as being in the low range.”

29. Ms North noted the positive aspects of the applicant’s assessment:

“To her credit, [the applicant] had maintained an optimistic outlook since entering custody, stating she was willing to accept her sentence and would learn from this experience. She noted she had been working in custody, and had also completed a short course in computer skills. [The applicant] had also participated in Remand Addictions and was motivated towards engaging in further courses should she receive a custodial sentence.”

Affidavit evidence

30. An affidavit of the applicant’s solicitor, Erin Hoile, sworn on 27 October 2023, was read at the sentence hearing. Ms Hoile attested to matters pertaining to the applicant’s period on remand, based on conversations with the applicant. Ms Hoile stated:

“I am aware that [the applicant’s] first language is Cantonese and while she can understand English to a decent level, she has difficulty understanding and speaking English. I am aware that this has made her time in custody more difficult, particularly with knowing what is happening in the custodial setting, with knowing what courses she can access and when seeing a doctor as she does not understand the medical terms.”

31. During her post-guilty plea period on remand, the applicant was employed and completed two courses; a computer course and one focused on addiction.

32. Annexed to Ms Hoile’s affidavit is a copy of the Supreme Court bail conditions to which the applicant was subject upon grant of bail on 25 January 2023, which included a 24-hour curfew, except to attend her employment, report daily to police, attend court and legal conferences, and to obtain emergency medical treatment. A letter of the applicant’s employer prior to the commission of the offence was annexed to the affidavit, promising post-custodial employment to the applicant.

Character references

33. Written character references by the applicant’s partner and his mother were tendered at sentence. Both stated that they were aware of the serious nature of the charge to which the applicant had pleaded guilty and expressed strong support for the applicant while in custody and upon her eventual release.

Submissions on sentence

34. As to the objective seriousness of the offence, counsel for the applicant submitted that it was “at the very bottom of the range”, although he accepted that no penalty other than imprisonment was appropriate. However, he submitted that in view of relevant sentencing factors, it was open to the Court to impose a sentence of imprisonment to be served either by way of an Intensive Correction Order pursuant to s 7(1) of the Sentencing Procedure Act, or a sentence of full-time imprisonment with a non-parole period equivalent to the period she had been on remand. Those sentencing factors were: the 275 days served on remand (as of the date of sentence); the basis of the applicant’s criminal culpability (recklessness rather than actual knowledge); her prior good character; her remorse; her good prospects of rehabilitation; and consequently, the reduced need for the sentence to reflect specific deterrence.

35. The Crown submitted that the weight, purity and value of the methylamphetamine were relevant to fixing the objective seriousness of the offence, which, it submitted, was below the mid-range, noting “there is nothing in the brief that would be suggestive of an elevated position”. The Crown noted the importance of general deterrence and the protection of the community for such offending. No submission was made as to a need for specific deterrence.

36. The parties were agreed that there were no statutory aggravating factors, pursuant to s 21A(2) of the Sentencing Procedure Act.

The remarks on sentence

37. The sentencing judge adhered closely to the agreed facts in his remarks on sentence, by way of background to the offence. As to the agreed basis of criminal responsibility, his Honour referred to the element of recklessness thus:

“While the facts state that she is criminally responsible for the offence on the basis that she was aware there was a significant chance that the substance she supplied to the UCO is a prohibited drug, it is clear from the facts that she had possession of the drug when she left her apartment and was solely responsible for transmitting it to the pickup location and handing it over. She was recorded carrying the package down in the lift at her apartment building. She must in those circumstances have had a fair idea as to the quantity because she was then carrying it in the pink bag.

She was also party to an arrangement whereby the money having been paid over and Chinese currency provided for the purpose of an identity check or security code, photographs taken by UCO 1 had been transmitted either directly or indirectly to her and she was aware when delivering the methylamphetamine to UCO 2 that she was to engage in a not unsophisticated process of checking the code.

That she was aware that there was a significant chance that the substance she supplied was a prohibited drug should be interpreted as being a very highly significant chance, in the circumstances of what she did as part of this arrangement. She may not have known what the actual drug was, but she was being asked to perform a task, if asked by anyone else to do so, in circumstances of some sophistication.”

38. His Honour noted the submission made on behalf of the applicant that the applicant was “low in the hierarchy” and concluded, “there is no evidence of a hierarchy beyond the two who were involved with UCO 1 and UCO 2”.

39. His Honour continued:

“This matter has some similarity with the constant stream of cases that come before the Court in relation to the enhanced cultivation of marijuana by way of hydroponic cropping. The persons who are most frequently detected are not those who have financed or set up the operation or supplied the necessarily expensive equipment to grow large crops but those who have been hired for the purpose of cultivating the crop, that is, watering it, fertilising it, matters of that nature.

Invariably they are detected by surveillance of the premises and recorded as being there on a number of occasions. They are frequently from the Vietnamese community, have no criminal history, or at least any relevant criminal history, come from very poor economic circumstances, and there is usually little evidence as to any reward they are expecting other than what they might assert, which is normally insignificant in relation to the crops being cultivated.

That is designed to be a cut-off point where they will get the benefit of their lack of criminal history on sentence. It is probable that those who have families have been assured that they will be looked after if they serve a period of imprisonment, and that their legal fees in relation to pleading guilty, which most inevitably do when caught red-handed, will be looked after by the principals, providing that they do not provide any assistance to the authorities.

Those matters may have some similarity with this matter, but in terms of an offence of supply, and in this case, there is no evidence of any higher level in the hierarchy. This offender was the one who supplied the one kilogram of methylamphetamine in circumstances where common sense can inform one that she would not have been trusted to do so if there was a hierarchy unless anyone above her in the hierarchy was entirely confident that she would take the course that she has taken, that is, to reveal no information about anyone else that may have been concerned.

She has left herself in the position where she is one of two significant offenders, where neither of them can point at any more significant hierarchy on the evidence before the Court in respect of what I have referred to as an objectively very serious offence of supply prohibited drug.” (emphases added)

40. Turning to the applicant’s subjective case, the sentencing judge noted the applicant’s absence of prior offending and recited in a summary fashion the content of the sentencing assessment report, the psychologist’s report, the affidavit by Ms Hoile, the character references by the applicant’s partner and his mother and the offer by her former employer of renewed employment on her release. In so doing, his Honour expressly accepted the absence of any criminogenic factors, including the absence of any mental health issues, the applicant’s denial of using prohibited drugs and the absence of any evidence suggesting otherwise.

41. His Honour noted that the applicant had told the psychologist that she accepted responsibility for the offence and expressed regret for having committed it. His Honour observed that regret is not necessarily remorse and found there was no evidence of the applicant being remorseful, stating:

“I would have taken a different view if, in the circumstances of this matter, the offender had done one of a number of things: that is, actually confessed when first spoken to, rather than simply acknowledging where she lived, had she provided information as to anyone else that was involved in this matter, if there was anyone else other than the person who collected the money, or indeed who that person was. As I understand it, from what I have been informed of during the sentencing hearing, the person who collected the $150,000 has not been arrested, and the $150,000 has not been recovered.”

42. And later:

“She has left herself in the position where she is one of two significant offenders, where neither of them can point at any more significant hierarchy on the evidence before the Court in respect of what I have referred to as an objectively very serious offence of supply prohibited drug.

In this matter it appears, although not the offender’s fault, but it appears that the New South Wales authorities have lost $150,000 of taxpayers’ money in order to acquire almost one kilo of methylamphetamine, which has no value to the authorities and would of necessity simply be destroyed in due course.

… I am stunned to learn that the person who collected the $150,000 was apparently unidentified and has not been arrested or charged.”

43. His Honour said that he took into account the past and future impact of the COVID-19 pandemic on the applicant’s conditions of imprisonment and turned to the issue of deterrence, stating:

“However, offending of this nature is serious and there is a need for any sentence to be imposed to reflect both general and specific deterrence.

There are no factors in this matter which would diminish the need for the sentence to reflect both specific and general deterrence. Despite what I have just said, considering the offender’s lack of past criminal offending, the need for the sentence to reflect specific deterrence is somewhat less important than it would otherwise be, but the need for the sentence to reflect general deterrence is high because offences of this nature, where sophisticated plans are put in place, are difficult to detect and to obtain evidence of despite the best efforts of the New South Wales Police Force.

Mr Averre, on behalf of the offender, submitted that this matter fell at the very bottom of the range of objective seriousness for the offence. A submission with which I disagree strongly.

As to the risk of reoffending, I note the report of Jodie McMann indicates that she was assessed as a low risk of reoffending, which appears to me to be a reasonably accurate assessment in the circumstances of her past history. I should note that in relation to what is contained in the Sentence Assessment Report by way of hearsay statements from the offender as to what she did, and why, I am not prepared to accept those untested statements and have not done so as being untested and self-serving, I also note that In McLean v R [2020] NSWCCA 344 at 50 it was said:

‘... it should be noted that the absence of factors relevant to the offender’s participation that would otherwise elevate the assessment of objective seriousness should not render the offence less serious than it in fact is.’”

44. His Honour gave an indicative starting point sentence of 9 years’ imprisonment, mandatorily reduced by 25 per cent for the utilitarian benefit of her early plea of guilty to 6 years and 9 months, with a non-parole period of 5 years. His Honour declined to find special circumstances. After handing down the sentence, his Honour said:

“What I haven’t said, Mr Crown, is that one of the purposes of special circumstances is to allow for rehabilitation and on what is before me the accused does not have a drug or alcohol problem and there is no need for any extended period of rehabilitation, nor in that sense is she a recidivist criminal offender. It’s perhaps a shame that she didn’t take a different course of action.”

Submissions on appeal

45. Grounds 2 and 5, in my view, are unsuccessful and may be dealt with briefly. Ground 3, which I would uphold, raises a discrete issue.

Ground 2

The sentencing judge erred in assessing the seriousness of the applicant's conduct in that his Honour:

(a) failed to assess it in the context of the range of conduct that may be captured by s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW); and

(b) took into account assumptions about the workings of criminal organizations unrelated to the index offence

46. As to ground 2(a), the applicant submitted that the sentencing judge erred by not assessing the seriousness of the applicant’s conduct in the context of the range of conduct that may constitute an offence of “supply”, other than noting that she was one of two, perhaps three, persons engaged in the enterprise and that there was no evidence of a hierarchy. In so doing, his Honour failed to acknowledge the applicant’s “limited role” which caused the sentencing judge’s assessment of the objective seriousness of the offending to miscarry.

47. Ground 2(b) concerns the passage from the sentencing judge’s remarks that is extracted at [39] above (the cultivation enterprise passage), which, the applicant submitted, introduced “irrelevant and extraneous considerations” into his Honour’s assessment of the applicant’s role. The reference in that passage to the applicant, consequent to her decision to not assist police by incriminating others, having “left herself in the position” where it was not open to submit that she was low in the hierarchy, was “an unfair and erroneous approach”. The applicant was entitled to not incriminate others. It remained for his Honour to determine the applicant’s role, as part of the determination of objective seriousness, on the evidence in the case, which pointed to a limited role.

48. Counsel for the applicant submitted orally that the cultivation enterprise passage “placed a great deal of emphasis upon my client not having assisted the police with any information about other people involved in the offending”, thereby implying a finding that the applicant’s failure to assist police had been treated as an aggravating factor.

49. In response to ground 2 generally, the respondent submitted that error had not been disclosed as to how the sentencing judge considered the objective seriousness of the offence. As to the specific complaint made in ground 2(a), it was submitted that the sentencing judge took into account a range of factors that were relevant to the issue of objective seriousness, including the weight, purity and value of the prohibited drug, the acts that the applicant undertook and the applicant’s participation in the banknote device to ensure security. His Honour was entitled to find that there was no evidence of a hierarchy. His Honour’s conclusion that it was “an objectively very serious offence of supply prohibited drug” was a finding that was open to the sentencing court to make.

50. The respondent submitted that error was not demonstrated by ground 2(b), concerning the cultivation enterprise passage:

“The sentencing judge’s comments can be fairly read as revealing a contradistinction: other matters might include evidence demonstrating the low level of involvement of an offender within a structure. The sentencing judge expressly differentiated this case before him from that example, saying, ‘… in this case, there is no evidence of any higher level in the hierarchy’.” (page references omitted)

Consideration

51. In my view, whether the evidence permitted an inference that persons other than the applicant and the male who collected the cash were likely involved and, being removed from first-hand contact with purchasers, they were likely to be in a more criminally culpable hierarchical position, is beside the point. The findings made by the sentencing judge were open: that the applicant’s role in the supply was central to the offence and there was no direct evidence of a higher level of involvement in the enterprise of others. His Honour did not find that the applicant was a principal, but rather, confined her role to the evidence of what she did.

52. The sentencing judge did not qualify where in the range of objective seriousness the offence fell and was not obliged to do so: see for example DH v R [2022] NSWCCA 200 at [33], [56] and [58]-[60]. However, it is apparent from the remarks that his Honour regarded the offence as more objectively serious than the parties had submitted.

53. As to ground 2(b), I accept the respondent’s interpretation of the cultivation enterprise passage; that the sentencing judge was illustrating by example how in some circumstances, low-level participants who are to be sentenced and who are silent as to the identity of their superiors, may nevertheless be accepted as being in a hierarchy. The passage refers to the persons who are arrested for the cultivation being from “very poor economic circumstances” and are often not “those who have financed or set up the operation or supplied the necessarily expensive equipment to grow large crops”.

54. I would grant leave and dismiss this ground.

Ground 5

The applicant was denied procedural fairness in that she was not given an opportunity to respond to adverse implications arising out of the link drawn between this case and the workings of criminal organizations involved in the cultivation of marijuana

55. Ground 5 concerned a further aspect of the same passage, which is the reference to the legal fees of the lower-placed members of cannabis enterprises being paid by their principals to ensure their silence. The applicant submitted orally that the sentencing judge equated this arrangement with the applicant’s situation which implied a relationship of on-going loyalty to her superiors, which in turn bore on a range of sentencing issues that included her prospects of rehabilitation. Although these observations did not constitute a positive finding by his Honour that the applicant’s defence was funded in this fashion, it was a finding, nevertheless, that it remained a “real possibility”, thus denying the applicant procedural fairness; had the applicant been forewarned of this reasoning, she could have led evidence as to the source of payment for her legal fees.

56. The respondent submitted that an issue of procedural fairness was not raised by the cultivation enterprise passage because, as noted in the respondent’s submission extracted at [50] above, that scenario was meant only as a point of contradistinction with the applicant’s situation. Those judicial observations had not been demonstrated to have materially impacted on the formulation of the sentence.

Consideration

57. While it is correct to observe that the focus of the cultivation enterprise passage was that in some prohibited drug criminal enterprises a hierarchy may be inferred in the sentencing of low-level offenders in spite of their silence, his Honour went a step further and postulated that their silence is bought by those who are higher up in the hierarchy paying their legal fees. By stating as much in the context that he also said the instant case and that scenario are similar, as is apparent from the parts in that passage at [39] that I have italicised, his Honour came close to inferring that the applicant’s silence as to who else was involved was for a similar reason. That is an inference that would not have been open on the evidence. There are many possible reasons as to why an offender may decline to assist police by volunteering information as to who else was involved in their offending. The reason, or reasons, in this case, could only be a matter of speculation. Nevertheless, although his Honour’s language was somewhat oblique, such an equation was neither stated nor available as an inference. Accordingly, I would grant leave but dismiss the ground.

Ground 3

The sentencing judge erred:

(a) in failing to take into account that the applicant had good prospects of rehabilitation per s 21A(3)(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or

(b) in failing to explain in the reasons for judgment how the matter had been taken into account

58. The applicant submitted that, although defence counsel had referred to the applicant’s “good prospects of rehabilitation” and there was ample evidence of that proposition, the sentencing judge did not refer to the applicant’s positive prospects of rehabilitation and it was not possible to discern from the remarks what view his Honour took in relation to that issue, which left open the possibility that it had not been properly considered. The applicant noted that ss 21A(3)(g) and (h) were separate mitigatory factors, although closely related: Zuffo v R [2017] NSWCCA 187 (Zuffo) at [46]-[49].

59. The respondent submitted that defence counsel at the sentence hearing had made only passing reference to the applicant’s prospects of rehabilitation. In accordance with authority, it was not necessary for the sentencing judge to expressly refer to rehabilitation, provided it is apparent that it was taken into account: Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195 (Baker) at [73]. The sentencing judge’s reference to rehabilitation in the passage extracted at [44], that is, that as rehabilitation was not required, it did not warrant a finding of special circumstances, demonstrated that his Honour had made a determination in respect of the applicant’s rehabilitation. The respondent continued:

“In the wider context of this matrix of considerations and the findings of the sentencing judge relating to re-offending, the applicant’s prior good character, and the express indication that that further rehabilitation was not required, it is clear that the applicant’s good prospects of rehabilitation was by necessary implication taken into account as a factor favouring the applicant, considered within the synthesis of the judgment.”

Consideration

60. If the sentencing judge found on the balance of probabilities that the applicant was unlikely to reoffend and that she had good prospects of rehabilitation, he was obliged to take those separate factors into account as mitigatory considerations, pursuant to s 21A(3) of the Sentencing Procedure Act:

“Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows—

…

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise

…”

61. A favourable finding in respect of one of these two factors is not necessarily determinative of the other, although a positive finding as to rehabilitation prospects may sometimes incorporate a finding that the offender is unlikely to reoffend: see for example Zuffo per Adamson J (as her Honour then was) at [92] and Meoli v R [2021] NSWCCA 213 per Simpson AJA at [43]. Specific deterrence (which concerns the same issue as whether an offender is likely to reoffend) and rehabilitation are also separate objectives of the sentencing process, as is apparent from ss 3A(b) and (d) of the Sentencing Procedure Act, which provides as follows:

“3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

62. As noted above at [43], his Honour made a finding as to whether the applicant was likely to reoffend. His Honour said there was an undiminished need for specific and general deterrence, although he qualified that statement by stating that specific deterrence was “somewhat less important than it would otherwise be”, in view of the applicant having no prior convictions.

63. However, the only mention of the applicant’s rehabilitation as a sentencing factor that was taken into account was in his Honour’s explanation as to why he had not found special circumstances. In that passage, which is extracted at [44] above, his Honour correctly said that “rehabilitation” and recidivism may be reasons to find special circumstances. An offender with a criminogenic factor of prohibited drug use, for example, may be more likely to overcome their drug use and therefore be rehabilitated if they are subjected to a longer period of parole supervision. His Honour’s reasoning that the applicant “does not have a drug or alcohol problem and there is no need for any extended period of rehabilitation, nor in that sense is she a recidivist criminal offender”, was orthodox reasoning.

64. The question here though, is whether, since there is no other mention of the factor of rehabilitation, it may safely be inferred from the remarks as a whole that his Honour nevertheless took into account the applicant’s good prospects of rehabilitation, as required by s 21A(3)(h) of the Sentencing Procedure Act, in the process of instinctive synthesis.

65. As noted in Baker by Adamson J at [73] and in Li v R [2023] NSWCCA 112 per Yehia J (Davies and Fagan JJ agreeing) at [46]–[49], the reasons must make it evident that relevant factors have been taken into account, particularly factors that are identified in s 21A of the Sentencing Procedure Act; a “tick-box” approach is impermissible. Both cases concerned the applicant’s prospects of rehabilitation.

66. It is apparent from his Honour’s recital in summary form of the evidence as to the applicant’s subjective case that he was aware of the evidence in that regard; the applicant was of prior good character, there was no evidence that it was other than a one-off offence, she had no criminogenic factors such as mental health issues, the use of prohibited drugs or abuse of alcohol, and a stable relationship, home environment and resumption of her prior employment awaiting her on her release. Yet, there was no acknowledgement of the applicant’s good prospects of rehabilitation or of any alternative view that his Honour may have formed of that material.

67. Had the sentence imposed been lenient, it would have tended towards an inference that this factor had been taken into account, but the sentence of 6 years and 9 months following the mandatory utilitarian discount of 25 per cent for the applicant’s early plea of guilty, with a non-parole period of 5 years, in all the circumstances, could not be so described: see for example by way of comparative sentences Nguyen v R [2024] NSWCCA 178 and Chiarlini v R [2023] NSWCCA 227.

68. I am of the view that the sentencing judge did not take into account in formulating the sentence a material consideration, namely, the applicant’s good prospects of rehabilitation. Accordingly, I would grant leave and uphold this ground of appeal, with the consequence that the sentencing discretion must be exercised afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Resentence

69. In addition to the material admitted into evidence in the court below, I would take into account further material that was tendered in the event that the applicant is to be resentenced, that is not canvassed for reasons of policy.

70. As to the objective seriousness of the offence, I am satisfied that the applicant committed the offence at the request of a person superior to her in the enterprise and further removed from the risk of being apprehended. In that sense, she was lower in the hierarchy. I note that it is accepted by the Crown that the applicant was to be sentenced on the basis of recklessness as to the contents of the Fancylife bag. Although there is no need to fix the objective seriousness on a scale, I would not disagree with the Crown submission that was advanced below that it fell below the mid-range.

71. Findings I would make pursuant to factors identified in s 21A(3) of the Sentencing Procedure Act include: the applicant does not have any record of previous convictions (s 21A(3)(e)); and that prior to the offending, she was of good character (s 21A(3)(f)). I would also find on the balance of probabilities, having regard to the evidence summarised at [66] above, that the applicant has good prospects of rehabilitation. In addition to those matters, taking into account the singular nature of the supply, the evidence of the applicant’s regret, her absence of prior offending and Ms McMahon’s opinion informed by the results of the LSI-R that the offender has a low risk of reoffending, I am satisfied that there is minimal need for the sentence to reflect specific deterrence.

72. The sentence for an offence of this type, that is, supplying a large commercial quantity of methylamphetamine which, it is trite to observe, is an inherently dangerous prohibited drug, must reflect general deterrence, the protection of the community and have the effect of holding the applicant accountable for her actions. I have regard to the maximum penalty and the standard non-parole period, although remaining mindful in considering comparative sentences that while the amount of methylamphetamine in this case is around twice the threshold quantity of 0.5kg, there is no upper limit to the statutory category of a large commercial quantity. The threshold of s 5(1) of the Sentencing Procedure Act is crossed; only a sentence of imprisonment is appropriate.

73. I would find special circumstances and modestly amend the statutory ratio of the non-parole period in light of the additional burden the applicant has in prison from not being fully fluent in the English language and having endured tougher conditions of imprisonment due to the COVID-19 pandemic.

74. The starting point of the sentence of imprisonment I would impose is 6 years, which is reduced by 25 per cent for the applicant’s early plea of guilty to a period of 4 years and 6 months, backdated to have commenced on 23 February 2023 in light of the total period that she has been on remand, and to expire on 22 August 2027. I would impose a non-parole period of 3 years and 2 months, to expire on 22 April 2026.

Orders

75. I propose the following orders.

76. Appeal allowed.

77. The sentence imposed on the applicant on 24 November 2023 is quashed.

78. The applicant is sentenced to a term of imprisonment of 4 years and 6 months, backdated to commence on 23 February 2023 and to expire on 22 August 2027, with a non-parole period of 3 years and 2 months, to expire on 22 April 2026.

**********