R v Field; R v Sibbritt; R v Tran; R v Ting; R v Yueng [2016] NSWDC 411 | Case summary

SIBBRITT - H113450402/3 AND YEUNG H59129008/1 - KNOWINGLY TAKE PART SUPPLY PROHIBITED DRUG GREATER THAN COMMERCIAL QUANTITY CONTRARY TO S 25(2) DRUG MISUSE AND TRAFFICKING ACT - 282 GRAMS METHYLAMPHETAMINE

On Monday 30 June 2015, Yeung contacted Field and the following conversation was recorded. "FIELD: Hello. YEUNG: Hello. FIELD: Hey buddy, how are you? YEUNG: Good, whereabouts are you? FIELD: I'm at the hotel at Marrickville near Watsons. YEUNG: Oh okay have you got wheels? FIELD: No, no I haven't. YEUNG: Well how do you want me to - how do you want to meet? FIELD: You haven't got no wheels? YEUNG: No I haven't got no wheels, I got my dad to drive me. FIELD: Oh okay, even if you want to jump in a cab or whatever and I'll fix you up or something for you. YEUNG: Yeah all right, I'm going to head home first but yeah I will…whatever, whatever you wanted I got. FIELD: Yeah, cool cool. YEUNG: All right. FIELD: All right, thank you. YEUNG: I told him, I told him, I said um well he just have - have to give me another six tomorrow. FIELD: All right, cool cool. YEUNG: The rest tomorrow morning and then um he was still sussing out, he was still sussing out are they trustworthy. I was like fuck man are you serious. FIELD: Yeah. YEUNG: Yeah but it's all good. FIELD: All right, all right, cool. YEUNG: If you can, if you can then maybe you try and come past. FIELD: Yeah all right no worries. YEUNG: Yeah all right, I'll try and get some wheels if I can, I'll make a phone call, I'll see if Gavin's available or not. FIELD: Yup. YEUNG: If not then I'll leave it but yeah we'll see what happens. FIELD: Okay, all right mate. YEUNG: Thanks, bye. FIELD: Bye. YEUNG: If you need it before that, if you're urgent then come past and grab it. FIELD: Yeah all right, cool. YEUNG: All right. FIELD: All right, bye. YEUNG: Bye bye."
On Wednesday 1 July 2015, Field and Yeung were the subject of electronic and physical monitoring. At around 10am Field and Sibbritt were observed as they attended 8 Terry Street, Blakehurst, after exiting a taxi. Yeung resided at 8 Terry Street, Blakehurst.
At around 11.35am Sibbritt was observed exiting 8 Terry Street and then went by taxi to the Hurstville Aquatic Centre where she met a female drug buyer in a vehicle. Sibbritt and the female drug buyer continued in conversation up to around 12.31pm.
During this time, Sibbritt made a number of calls to Field discussing aspects of the proposed drug supply and requesting a timeframe for how long Field would be before attending her location to complete the drug supply to the female.
Around 12.31pm Sibbritt exited the vehicle, and around 12.43pm Field, Yeung, Ting and Amato as the driver were monitored as they left the address of 8 Terry Street and travelled to the Hurstville Aquatic Centre.
At that location, Field and Ting exited the vehicle and met with the female drug buyer. At that time Ting supplied the female with 282 grams of methylamphetamine. A short time later, Field, Yeung, Ting, Sibbritt and Amato were arrested and detained. All persons were conveyed to the Kogarah police station. Amato was later released from custody, with the remaining persons charged with a number of criminal offences as identified during the investigation.
A short time later Tran was arrested at Unit 8, 84 Harris Street, Fairfield, during the execution of a search warrant on those premises. At that time he was detained for his part in the offence as committed on 2 June 2015 and conveyed to the Fairfield police station. He was subsequently charged with the relevant criminal offence.
The facts in relation to this sequence of offending demonstrate a close relationship between each of the offenders in relation to the supply of methylamphetamine on a number of occasions, although their roles vary, and in particular, in relation to Mr Tran, he is only involved in one instance of supply, being 103.1 grams of methylamphetamine. It is, however, clear that Sibbritt was an intimate of Field and Yeung, trusted to participate in communications and arrangements in relation to the supply of methylamphetamine on a number of occasions.
It would appear from the facts that Field was the most senior person, if that is a correct way to describe him, who called on others from time to time to actually supply the prohibited drug to be sold to persons that he had arranged to supply to.
In respect of each of Field and Sibbritt, it is of serious concern that having been arrested in respect of the accessory to the manufacture and the first offence I referred to in respect of each, of supply prohibited drug, each continued thereafter to participate in criminal offending relating to methylamphetamine.
Field, at the time of the first offending before this Court was subject to a s 12 bond imposed on 1 April 2014 in respect of an offence of possessing an unauthorised prohibited firearm. He was given a ten month sentence suspended pursuant to s 12. Having been arrested in respect of the first sequence of offending, at the time that the manufacturing process at the Adina apartments was discovered, he was not only still subject to the s 12 bond, he was also on bail in respect of the first set of offending, and at the time of the final sequence of offences involving Field, Sibbritt, Yeung, Ting and Tran, he was no longer subject to the s 12 bond but he was subject to bail in respect of the original offending, and must have been cognisant of the likelihood of being charged in respect of the manufacture at the Adina apartments.
On 7 May 2015, he was committed for trial in respect of the offences that occurred on 9 July 2014. Of note is that the three offences of ongoing supply occurred on the 5th, 12th and 19 May 2015, that is, in close proximity to the time at which his trial on the earlier charges was before the Court for committal proceedings.
A s 12 bond had been imposed in respect of his being found in possession of what is referred to as a "keychain gun" which I will refer to later. That offence was the only offence on his record prior to the offending represented by these charges.
Kristy Sibbritt had no criminal convictions prior to the commencement of her offending in relation to these matters, but in respect of the take part in the manufacture at the Adina apartments, she was then on bail as a result of being arrested for the offences in respect of 9 July 2014. The manufacturing offence was only approximately two months later, and at the time of the third sequence of offending involving Field, Sibbritt, Yeung, Ting and Tran, she was still on bail in respect of the offences from 9 July 2014, and had been committed for trial in respect of those offences on 7 May 2015.
In respect of Mr Yeung, I will subsequently refer to his criminal history but I note at the moment that at the time of his offending, he was on conditional liberty, being subject to a s 9 bond for possessing a prohibited drug. The bond was for two years from 5 June 2015, that is, shortly before the commission of the offence and the offence on the Form 1. He was also on bail in respect of two offences of driving while disqualified, for which he had been charged on 22 February 2015 and 27 May 2015.
As to Mr Ting, at the time of his offending - I will refer to his criminal record later, but he was the subject of a s 9 bond of nine months, imposed on 19 March 2015 for driving while disqualified, and he was also the subject of a s 9 bond of 18 months, imposed on 5 May 2015 in respect of an offence of possessing a prohibited drug.
Each of the offenders, Field, Sibbritt, Yeung and Ting, was, accordingly, at the time of the commission of the offences on conditional liberty, which is an aggravating circumstance. I will deal with the respective subjective matters.
Joshua Field was born on 17 February 1984. He was at the time of the various offences aged either 30 or 31, and he is now 32 years of age. He is the eldest of two children, his parents having separated amicably when he was nine years of age. He lived with his mother until Year 8 and then with his father after being suspended from school. He had a supportive family who have remained supportive.
He obtained the School Certificate and then moved out of home and commenced an apprenticeship at approximately 16 years of age, being more interested in sports than academia. For approximately one year he was employed by Telstra as a pipe and pit layer, and over a period of approximately a year and a half he completed an apprenticeship in formwork and carpentry at the Tuggerah TAFE. He started a concreting business with a friend but sold the business when the friend died in 2009. He worked for approximately one year on a casual basis before moving from the Central Coast to Sydney. The work on a casual basis would appear to have been with a business called Remote Drilling Australia as a site supervisor - see Exhibits JF2 and JF1.
At about the time that he moved to Sydney, a relationship of approximately ten years duration ended. On moving to Sydney, he became associated with drug users and quickly became addicted to methylamphetamine or "ice" and became isolated from his earlier life, friends and family. He formed a relationship with Kristy Sibbritt, which continued throughout the period of offending.
He did not give evidence on sentence, and the subjective matters are taken from the material that was tendered on his behalf: Exhibit JF1 being a psychological report of Helen Kearney, dated 4 July 2016, and JF2 being a reference from Clint Bass, the director of the business Remote Drilling Australia, as well as the material provided by the Crown as to the criminal history and a Pre-Sentence Report under the hand of Stephen Mahoney, the unit leader of the Cessnock Parole Unit, dated 29 June 2016.
The offender informed Helen Kearney, psychologist, that: "He lived in the moment and his only concern was his next fix. This need for a consistent supply of ice was his motivation for becoming involved in criminal activities as he had to have a regular supply to prevent withdrawal and maintain his addiction."
He is said to have overcome his addiction while in custody and has undertaken relevant courses in custody. There have been no disciplinary infringements while in custody. He has been assessed as a medium risk of re-offending by Mr Mahoney. He has only two prior entries in his criminal history, one being an offence of public nuisance committed in Queensland in 2008, but in respect of which a conviction was not recorded, and he was fined $450.
I have already referred to the charge of possess unauthorised prohibited firearm, being the "key chain gun". That matter also came before me and I have previously dealt with the s 12 by revoking the s 12 and imposing the sentence that had been determined by the learned magistrate of ten months, and imposing a five month non-parole period commencing on 15 May 2015. The sentence in respect of the revoked s 12 of ten months commenced on 1 July 2015 and the five month's non-parole period expired on 30 October 2015. The total sentence expired on 30 April 2016. Since 1 December 2015 he has been in custody solely in respect of these matters.
As I have previously said, of serious concern and an aggravating factor, is the fact that he was on conditional liberty in relation to the s 12 as well as also being on bail after the detection of the first offences during the period when the subsequent offences were committed.
As to remorse, he is said to have gained some insight into his offending and he is determined not to use and wishes to in due course return to the Central Coast where he is apparently still held in high regard by the proprietor of Remote Drilling Australia, who has indicated he is prepared to employ him in the future.
His addiction to methylamphetamine is not an excuse for the offending behaviour, but it is at least some explanation for why a person who had had no relevant trouble with the authorities for so long fell foul of the law. It cannot be said, in light of the continued offending or repeated offending over the period from July of 2014 to July 2015, and the re-offending occurring in the circumstances of conditional liberty, that there is a low prospect of re-offending, except in circumstances where the offender first addresses his drug-related problems and not only determines to cease using prohibited drugs in the future but in fact manages to do so. Considering his prior good character, should he be able to achieve cessation of the use of prohibited drugs, in my view he would have a low prospect of re-offending, and there is in the circumstances at least a reasonable prospect of rehabilitation.
Kristy Sibbritt was born on 24 June 1993. She did not give evidence on sentence and the subjective matters are drawn from the Pre-Sentence Report of Oscar Yu, dated 29 June 2016, and the material contained in Exhibit KS1, being the report of Ruth Allen, psychologist, dated 9 May 2016, a mental health care plan dated 5 October 2011, and a letter from Fe Limjap, psychologist, dated 3 June 2011, the Justice Health Mental Health Assessment dated 22 December 2015, and a letter from Michelle Tzirkas of Odyssey House, dated 28 January 2016.
At the time of the offending, she was variously 21 to 22 years of age. She is now 23 years of age. She is one of four children from a blended family, her parents separating when she was eight years of age due to her father's substance abuse and violence towards her mother. Unfortunately, her mother is apparently also an abuser of prohibited drugs, in particular amphetamines and methylamphetamine. The offender maintains contact with her mother but not with her father. The material indicates that she had a very disrupted childhood both in relation to emotional support and education. She attended six different high schools, but managed to obtain the School Certificate and Higher School Certificate, and later attended the University of Western Sydney to do a one year diploma in Social Science. However she discontinued this course in order to help and support her then partner's studies and never returned.
At 15, she had left home and then lived with a boyfriend and his family while finishing her Year 10. She had moved in with a new boyfriend when she was approximately 17 years of age. During her Years 11 and 12 she worked in butcher shops and then did some store work and bartending. After ceasing at university, she commenced escort work to support herself and her then partner. She is said to have met the co-offender, with whom she formed a relationship, through her mother's drug associates when she was approximately 20 years of age. She was said to have been exposed to drug use at an early age and on an ongoing basis.
At 17, it was her mother who introduced her to methamphetamine, although she did not begin using that substance regularly until approximately three years ago while working as an escort. Her usage increased over time and particularly after forming the relationship with the co-offender, Field. She has been previously diagnosed with anxiety, depression and Obsessive Compulsive Disorder when she was 17, and was prescribed the anti-depressant Prozac. Since being taken into custody she has re-commenced that medication. She has had some assistance in the past with cognitive behaviour therapy, and was medicated with Lovan in 2011 for her Obsessive Compulsive Disorder. She is said to have gained insight into her offending. She has no prior convictions, has not incurred any institutional charges, and has been employed as a leading hand in the kitchen while in custody.
She has been assessed by Probation and Parole as having a low to moderate risk of re-offending. I accept that she is remorseful, and should she be able to conquer her addiction to the prohibited drug methylamphetamine and/or any other prohibited drug, there is a reasonable prospect of rehabilitation. Should she fail in the future to address those problems, then she is very much at risk of re-offending.
Gilbert Wai Kit Yeung did not give evidence on sentence. Before the Court in respect of subjective matters is his criminal history and a number of documents tendered on his behalf, being a report from Mr Watson-Munro, psychologist, dated 16 May 2016, a letter from Jane Wilson of the Offender Services and Programs Unit, dated 8 June 2016, a character reference from Gavin Koo, dated 10 June 2016, and a further character reference from Vivienne Rodgers, dated 20 June 2016. In addition tendered on behalf of the offender was a letter from him to the Court, tendered without objection from the Crown. In addition a certificate of completion dated 13 July 2016 of the EQUIPS Addiction program, being a 20 session program, has been tendered and is Exhibit GY2. The subjective material is drawn from that material.
He was born on 27 September 1983. He is now 31 years of age, and was 33 at the time of the offending. I have already referred to the fact that at the time of the offending he was on conditional liberty in relation to a Section 9 Bond for possessing a prohibited drug, and on bail in respect of two offences of driving while disqualified.
He is one of two siblings born in Hong Kong. He came to Australia with his parents and his sister when he was approximately seven. His father continued to operate a business in Hong Kong and visited Australia every two months for approximately a fortnight. He discontinued high school in Year 12 after failing the trial Higher School Certificate. While supported initially by his parents, he was for several years unemployed, and attended a number of TAFE courses which he failed to complete.
When approximately 25 years of age, his parents financed him into an Optus dealership, but the business failed. He married at approximately 25 years of age, and there were two children approximately six and a half and eight years of age, however, he and his wife separated at a time when the offender was serving a term of imprisonment, and he has had no physical contact with his children, who reside with their mother in Hong Kong. There had been ongoing conflict in the marriage due to the offender's mood changes and drug abuse. His use of methylamphetamine or "ice" had commenced when he was approximately 25 and it escalated over time to an addiction and a significant level of use.
Mr Watson-Munro, psychologist, has diagnosed him as suffering from major depression with features of an anxiety disorder. While in custody, he has worked in the metal workshop at Parklea and in the textile industry at Lithgow. On 4 May 2016, he commenced the EQUIPS program, being 22 hour sessions targeting substance abuse, which he completed in July 2016. He continues to be supported by his family and friends.
His criminal history includes four previous offences of possessing prohibited drugs, and at the time of these offences, as previously referred to, he was subject to the Section 9 bond. He has been convicted of a total of ten drive whilst disqualified offences, and is disqualified from driving until the year 2040. The relevance of those offences in particular is that he had previously served a period of time in custody in respect of such offences. There are a small number of other offences of a comparatively minor nature. After being arrested in respect of the current matters, he was sentenced to two terms of imprisonment for drive whilst disqualified offences which were committed in February and May of 2015. The terms were partially concurrent and the total effect was a sentence of 18 months imprisonment with a non-parole period of 13 months commencing on 13 August 2015, the non-parole period expired on 12 September 2016.
From his arrest on 1 July 2015 to 13 August 2015 .which was the commencement of the combined sentences for the drive whilst disqualified offences, he spent a period of 43 days in custody which are solely referable to this matter and must be taken into account. There was apparently no action taken in respect of the breach of the s 9 two year bond for possessing a prohibited drug. While in custody there have been no disciplinary charges.
His remorse has been referred to by Mr Watson-Munro. It is also contained in a letter to the Court from the offender and was also referred to by his sister, Vivienne Rodgers, and also his friend Gavin Koo. I accept that the offender is remorseful for his conduct, and I accept that should he be able to conquer his addiction there would be a reasonable prospect of rehabilitation and a low prospect of re-offending. However, I note that he has had a significant addiction for a substantial period of time. The absence of any disciplinary charges while in custody and the fact that he has completed the EQUIPS Program would appear to hold out reasonable hope that the offender either has or can successfully address his drug addiction.
Kwun Yip Ting was born on 21 August 1977. He was 37 years of age at the time of the offending, and he is now 39 years of age. At the time of the offending, as I have previously referred to, he was subject to two Section 9 bonds for driving whilst disqualified and a Section 9 bond of 18 months in relation to the possession of a prohibited drug. There appears to have been no action taken in relation to any of the Section 9 bonds.
Again, the offender gave no evidence on sentence. Subjective material is drawn from his criminal history, part of Exhibit 11, the Corrective Services Report, also being part of Exhibit 11, the material contained in Exhibit KT(1) being a psychological report from Mr Milic, psychologist, dated 5 July 2016, and a report from Mr George Tirris, being a MERIT or Magistrate's Early Referral Into Treatment program report, dated 30 April 2015, prepared and provided for his appearance at the Local Court on 5 May 2015 at Burwood for an offence of possessing a prohibited drug. Of note of course is that the Section 9 bond of 18 months was imposed on 5 May 2015, and the two matters that are before the Court by way of the charge on the Form 1 occurred on 23 June 2015 and 1 July 2015, that is, in close temporal relationship to his being given the benefit of the 18 month bond for possessing a prohibited drug.
He was born after his parents migrated to Hong Kong from mainland China, and he has an older sister. During his second year of high school he was transferred to a Hong Kong English language school, where because of his poor English language skills, he fell behind and truanted in order to play video games with like-minded friends. He arrived in Australia at the age of 13 and spent one year in a language school; having been bullied at school in both Hong Kong and Australia he continued truanting and performing poorly academically. After completing high school, he worked picking and packing for Woolworths and Franklins for approximately two to three years which was followed by a number of odd jobs. He was a computer technician with Optima for nearly two years and with Asus for about 18 months prior to his last period of imprisonment. However, due to his drug abuse, his performance had deteriorated in those jobs, causing him to lose them.
He is said to have commenced using MDMA ("ecstasy") at the age of 20 during a period of social and familial isolation, later becoming dependant on methylamphetamine at the age of 30, and after a successful period on parole for offences of dealing with the proceeds of crime and possessing counterfeit money, the offender reoffended in November 2014. He attended the MERIT program between February and April 2015 and completed detoxification but ultimately did not enter a residential rehabilitation or attain complete abstinence. He had of course failed in his attempt to cease the use of prohibited drugs by 23 June 2015, as the offender was using half a gram of ice over a period of two to three days at around about the time of this offence.
Mr Milic opined; "It is likely that the offender's addiction and the underlying issues maintaining his addiction were significant causal factors in his offences."
I accept that an addiction to methylamphetamine is of course likely to contribute to the motive for participating in offences such as this, but it is not an excuse.
His criminal history is consistent with a long standing dependency on illicit substances.
His past criminal history indicates a variety of offences: such matters as wilful and obscene exposure, larceny, shoplifting, using false instruments, obtaining money by deception, and a number of those offences, particularly using false instruments, have been the subject of a number of charges. There are also offences of receiving/disposing of stolen property and terms of imprisonment have been imposed.
He has four previous offences of supplying prohibited drugs, and two previous offences of possessing prohibited drugs, again including several periods of imprisonment between 2003 and 2015. As well, there have been offences involving the proceeds of crime, driving while disqualified, possessing and uttering counterfeit money. His Corrective Services Report indicates that he has had no disciplinary charges while in custody at any time.
In relation to rehabilitation, it is clear from the records that past attempts at rehabilitation have failed, and appear to have failed relatively quickly. There is no expression of remorse contained in any of the material. The offender clearly has a significant difficulty with the consumption of prohibited drugs and while I accept that it is likely that most of his criminal history is orientated around that addiction it cannot in the circumstances be said that there is a good prospect of rehabilitation, or a low prospect that he would not reoffend.
Cam Tang Tran was born on 26 September 1974. He was aged 40 at the time of the offending, and is now 42. However, according to the psychologist's report and one of the birthdates given in his criminal history, he was 42 years of age at the time of the offending and is now 44. As I understand it, the offender's case is that the correct ages are 42 and 44.
I note that the Crown material contained an error in relation to suggesting that he was the subject of bail at the time of the offending, but that error has been acknowledged by the Crown, and I disregard that information. The offender did not give evidence on sentence, and the subjective material was taken from: a Pre-Sentence Report under the hand of Christine Moellmer, Community Corrections officer, dated 1 July 2016, his criminal history, and the Corrective Services Report contained in Exhibit 13, the Crown bundle, and from material contained in Exhibit CT1, the report of Dr Jeremy O'Dea, forensic psychiatrist, dated 8 July 2016, a discharge referral from New South Wales Health and various hospital notes from Justice Health, in particular in relation to a previous shooting injury. In addition, I note a number of certificates from TAFE in relation to courses of: "Working Safely with Industrial Chemicals and Materials", "Producing Powder Coated Products" and a letter to the Court from the offender which was not objected to by the Crown.
The offender was born in Vietnam and is the youngest of six children. He came to Australia with his family, when he was approximately 15 years of age. There is no significant family history. The offender claims limited education in Vietnam and that on coming to Australia he attended Fairfield High School and participated in a "Special English" class, completing Years 8 to 11 by the age of twenty, and leaving school in 1992 with limited skills in respect to reading and writing. He commenced using heroin in 1998 and rapidly escalated to a daily habit. He was a member of the "5T" gang for approximately twenty years before ceasing.
He has a very limited work history, and the Pre-Sentence Report indicates a considerable difference between his claims and his sister's reporting of his work history. He continues to have family support but to a lesser degree than claimed by him. While in custody he has worked in the powder coating unit and has received high praise from the overseer. As referred to, he has completed relevant TAFE courses.
He married at 23 and there is one 18 year old child of the marriage. He was divorced in 2001 and he has had no contact with his wife or child for approximately ten years. He has been in a further relationship for a period of approximately two years.
In 2002, he was "ambushed" and shot by "enemies" to the hip, shoulder and jaw while seated in a motor vehicle. The face/jaw injury has required multiple operations and resulted in chronic pain and infection. He lost all of his lower teeth. While previously in custody he commenced a methadone programme. He states that he ceased using heroin in 2002/2003 but unfortunately had commenced using ice to deal with the pain. He was using ice twice a week at the time of the offence.
He has an extensive criminal history, commencing as a juvenile. There are nine previous convictions for possession of prohibited or restricted substances, although no convictions for supply. The penalties imposed would appear to indicate that they were all relatively minor matters. He has been subject to a number of fines, bonds and custodial sentences. He has had the benefit of two s 12 bonds and one s 9 bond with supervision, but breached the bonds due to non-compliance with supervision. There are a number of offences involving violence or threatened violence. His longest sentence was one of six years and six months with a two and a half year non-parole period, concluding in August of 2003.
The Pre-Sentence Report indicates that he responded well to parole supervision and complied with all parole requirements and conditions. However, by 2009, he was again regularly before the courts with a poor record of attendance. There have been no disciplinary charges while the offender has been in custody.
As to remorse, Mr O'Dea's report contains the following p 5: "...I went to my friend's house...they asked me to smoke (ice)...they asked me to do them a favour...I know dealing drugs is bad...but I did not realise until the day that I delivered the package...I did not realise it was a serious crime...I feel like I owe him a favour...because he asked me if I wanted to smoke..."
In light of the offender's past history of offending in respect of drugs, and previous terms of imprisonment as well as his admitted lengthy connection over twenty years to a notorious criminal gang titling itself "5T", it cannot be accepted that the offender did not appreciate the seriousness of his conduct in participating in the supply of the prohibited drug on this occasion.
The submissions by Mr Payne, Barrister, on behalf of the offender indicated: "...benefitted to the extent he was able to further his own drug habit".
There is no evidence of financial involvement, but in his submissions, Mr Payne accepted that he participated for financial gain. There is no evidence as to what that may have been, but at least there appears to be no issue that there was at least a gain, or expected gain in the sense of obtaining access to the drug to which he was addicted.
The Pre-Sentence Report indicates that he informed the officer that he was to be given drugs in return for his services. It also states that he expressed remorse for his actions as well as accepting responsibility. In the absence of dealing with his drug addiction, in respect of which his past history indicates great difficulty, it cannot be said that there is a low risk of reoffending or a good prospect of rehabilitation. That is, of course, not to say that there is no prospect of rehabilitation or that he will necessarily reoffend in the future. While it is not an excuse for the offending conduct, I accept that having a significant addiction to the prohibited drug methylamphetamine is a strong motivation for participating in offences of this nature.
Endeavouring to sentence the five offenders in relation to this matter has been a complex task, not assisted by the provision of nine sets of individual facts and complicated by the manner in which the Crown has elected to proceed such as in respect of Mr Field and Ms Sibbritt, and in relation to the last series of offences, the Court being expected to sentence separately for the two offences, that is, on 1 July 2015 and 23 June 2015 of supply commercial quantity of methylamphetamine in the amounts of 282 grams and 279.2 grams as separate offences, when in respect of the offenders Yeung and Ting, the Crown has accepted that it was appropriate to proceed by way of a single charge of supply prohibited drug, being 282 grams, and to place on a Form 1 the second offence of 279.29 grams of methamphetamine.
I note as previously indicated during the hearing of the sentence proceedings, that the Court of Criminal Appeal has frowned in the past on offences which have legislated standard non-parole periods being included on a Form 1.
However, despite the past comments of inappropriateness by the Court of Criminal Appeal, I will deal with the matters. But it does I note make the task of providing parity between offenders more difficult than it might otherwise have been.
While I have endeavoured to reduce the facts into one set of facts, I indicate that I only take into account the facts that I have referred to that were specifically relevant to each of the offenders, as contained in the individual set of facts provided in respect of each of them. As I noted on a previous occasion, I have been careful to note where there was any difference between the facts for the individual offenders, a process which required a considerable period of time to achieve.
I note that where an offender at the time of the offending was the subject of conditional liberty, whether that be by way of a s 12 bond, a s 9 bond, or bail, that there is a long line of authority that that fact is a serious aggravating circumstance. The protection of the community from those who abuse their conditional liberty calls for significantly deterrent sentences.
In respect of these matters, I will later refer to the individual discounts for the utility of the plea as allowed when dealing with the individual charges.
In respect of each of the offenders, in my view both specific deterrence and general deterrence are important factors for the Court to take into account. For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act and take into account any aggravating or mitigating factors as referred to in s 21A(2) and (3).
Any sentence must reflect the objective seriousness of the offence, as well as the need for both specific and general deterrence, as well as meeting the fundamental purpose of punishment, that is, the protection of society. The protection of society is important in relation to offences involving the prohibited drug, methamphetamine, which in recent years has become such a scourge in the community that the legislature has seen it appropriate since the time of this offending to reduce the large commercial quantity from 1 kilogram to half a kilogram.
I am of course, however sentencing, according to the state of the legislation at the time of this offending.
I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act in relation to each of the individual offenders, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I note that no counsel on behalf of any offender has suggested in submissions that there is any course available to the Court other than a period of imprisonment.
I have taken all of those matters into account, and I intend to deal with the offenders by way of sentence in the reverse order to which I have so far referred to them.
Accordingly, in respect of the offender Cam Tang Tran and the offence of supply prohibited drug, more than an indictable quantity, being 103.1 grams of methamphetamine, with a maximum available period of imprisonment of 15 years, noting that the plea of guilty was entered in the Local Court on 2 March 2016 and that in those circumstances it is appropriate to provide a utility discount of 25%, as referred to in Thomson and Houlton [2000] 49 NSWLR 383, and noting that the quantity of 103.1 grams is somewhat less than half of the next level of seriousness, being a commercial quantity, 250 grams, but is nonetheless approximately 20 times more than the indictable quantity, the sentence will be a non-parole period of 18 months commencing on 1 July 2015, when he was taken into custody. The non-parole period will expire on 31 December 2016. The balance of term, having found special circumstances to provide for a period of one year on parole to assist him with supervision in relation to rehabilitation and dealing with his drug habit, the full sentence is two years and six months with an 18 month non-parole period. The sentence will expire on 31 December 2017.
I order that he be released on the expiry on the non-parole period. I direct that his parole be subject to supervision by Community Corrections with particular regard to treatment and/or counselling in respect of drug abuse and note that such supervision should include random drug urinalysis.
Mr Tran, I have no doubt in relation to you and your past history that you understand that if you are in breach of your conditions of parole you will end up back in custody for any unexpired parole period, all right? Please take a seat.
In respect of Kwun Yip Ting, and in respect of the offence of supply of prohibited drug being more than a commercial quantity, being 282 grams of methamphetamine, and taking into account the matter contained on the Form 1, being a further offence of supplying a commercial quantity of methamphetamine, being 279.29 grams, I have allowed for the maximum utility discount of 25%, the plea of guilty having been entered in the Local Court at the earliest opportunity, on 2 March 2016.
The offender has been in custody since the 1 July 2015, and only in respect of this matter, however Mr Ting was involved, unlike Mr Tran, in two separate matters involving significantly larger quantities. The sentence must reflect that as well as the fact that he was on conditional liberty.
The sentence in respect of Mr Ting is a non-parole period of two years and six months with a balance of term of one year and six months, the total sentence being four years. The sentence commences on 1 July 2015. He will be first eligible for parole on 31 December 2017 and then subject to parole for the balance of the four years. The full term of sentence will expire on 13 June 2018.
I have again found special circumstances in relation to Mr Ting, those special circumstances being to provide for a more significant period on parole than would otherwise be the case if the statutory relationship applied to assist him with rehabilitation, that is treatment and/or counselling in respect of his drug addiction.
I recommend that when released on parole, he be subject to requirements to participate in drug counselling and/or treatment as well as being subject to random urinalysis. Thank you, sit down.
In respect of Gilbert Wai Kit Yeung, and the offence of supply prohibited drug, being more than a commercial quantity, being 282 grams of methamphetamine, and taking into account the further offence contained on the Form 1, being the further offence of the same nature in respect of a quantity of 279.29 grams of methamphetamine, noting again, as previously referred to, that he was on conditional liberty, and that the plea of guilty was entered at the Local Court on 2 March 2016, that it is appropriate to provide a 25% discount for the utility alone of the plea.
Further, taking account of the fact that after entering custody, he was sentenced in respect of the two drive while disqualified offences to a combined sentence totalling one year and six months, with a non-parole period of one year and one month, that sentence commencing on 13 August 2015, he having been taken into custody in respect of these matters on 3 July 2015, the non‑parole period of one year, one month, expired on 12 September 2016.
I recognise that the sentencing discretion to be exercised today includes the ability to make the sentence imposed in this matter concurrent, partially concurrent with or wholly accumulative upon the sentence to which the offender has been sentenced as a result of the drive while disqualified charges for the reasons referred to be Simpson J in Callahan v R [2006] NSWCCA 58.
In my view, however, it is not appropriate to make the sentence to be imposed in respect of this matter in any way concurrent with the sentences imposed for the drive while disqualified offences, and so I intend to commence the sentence to be imposed in respect of Mr Yeung from 13 September 2016, that is, the first day after the expiry of the non‑parole period imposed for the drive while disqualified offences, but I intend to take into account the 43 days in custody between 1 July 2015 and the commencement of the drive while disqualified offences on 13 August 2015. Accordingly, the sentence will be backdated by 43 days from 13 September 2016.
Mr Yeung had a significantly more senior role in the supply for which he is to be sentenced than Mr Ting, who essentially appears to have only acted at the direction as necessary of Mr Yeung. Mr Yeung was himself a supplier of methamphetamine at the direction of Mr Field, and in view of his much more significant role, it is appropriate to impose a more significant sentence than was imposed on Mr Ting.
In respect of Mr Yeung, he is sentenced to a non-parole period of three years and nine months, commencing on 13 September 2016, but, backdated by 43 days, it will commence on 1 August 2016, meaning that he will be first eligible for parole on 30 April 2020. The balance of term is one year and nine months, the total sentence being five years and six months.
I have found special circumstances in respect of Mr Yeung in relation to his need for a longer period of supervision on parole to assist him to deal with his drug addiction problems. I have also taken into account the concept of totality. While I have made the sentence cumulative on the non‑parole period for the drive while disqualified offences, the overall relationship of the total non‑parole period for those offences and this offence to the total sentence for those offences and this offence is less than 75%, having found special circumstances both on the basis of the need for assistance in rehabilitation and also to take account of the principle of totality. Thank you, Mr Yeung, I take it, in view of your past history, you have no difficulty in understanding that your release on or about 30 April 2020 will depend largely upon how you perform in custodial circumstances and with Community Corrections. There are courses available in custody. You should ensure you make full effort to take whatever courses that might assist you in the future in relation to both your use of prohibited drugs, and also possible work in the future.
I turn first of all to Ms Sibbritt. Ms Sibbritt, like Mr Field, has to be sentenced in respect of a number of offences, and I have decided that it is appropriate to proceed by way of an aggregate sentence, in which case it is necessary for me to give individual indicative sentences for the various offences currently before me, including where such offences have a standard non‑parole period provided, indicating not only the head sentence or total term, but the non‑parole period that would have been imposed for the individual offence. Accordingly, I will indicate, first of all, each of the indicative sentences.
In respect of the offence of accessory after the fact to the serious indictable offence of manufacture a prohibited drug, in respect of which the maximum penalty is five years' imprisonment, noting that while the quantity assessed to have been manufactured was in fact almost 19.4 kilograms of methylamphetamine, there is no indication in the evidence that the offender was aware of such a quantity, the indicative sentence is a fixed term of 18 months. I have taken into account that the plea was entered on 16 March 2016, which was two days after the trial had been listed to proceed.
I have allowed in respect of the accessory after the fact offence a utility discount, in those circumstances, of 10% for that offence. I similarly allow a discount of 10% in respect of the further offence of supplying 385.1 grams of methylamphetamine on the same basis; that is that the plea was a belated plea, two days after the trial was listed to commence.
In respect of the second offence of supply a prohibited drug, being contrary to s 25(2), being 385.1 grams of methylamphetamine, the indicative non‑parole period is two years and nine months. The total term is four years and nine months, which would have meant a parole period of two years on the basis of special circumstances.
In respect of the charge of take part in the manufacture, being 24.61 grams of methylamphetamine, commenced by way of ex officio indictment, of which the offender was informed on 10 March 2016, that is, four days before the trial was anticipated to commence, and in respect of which she entered the plea six days later, on 16 March 2016, it is appropriate to allow the maximum discount for the utility of 25%, and I do so. The indicative sentence is a fixed term of 22 months.
In respect of the offence on 1 July 2015 of take part in the supply of a prohibited drug, being more than a commercial quantity, being 282 grams of methylamphetamine, I take into account the Form 1 attached to that offence, being a further offence of take part in the supply of a prohibited drug, being 103.10 grams of methylamphetamine, and in respect of the further offence on 23 June 2015 of take part in the supply of a prohibited drug, being 279.29 grams of methylamphetamine.
Each of the pleas was entered in the Local Court on 2 March 2016 and I allow in each case a maximum utility discount of 25%.
In respect of the offence of take part in the supply of prohibited drug, 282 grams, the indicative sentence is a three year non-parole period with a balance of term of two years, that is, a sentence of five years with a three year non-parole period.
In respect of the further offence of take part in the supply of prohibited drug, 279.29 grams, the indicative non-parole period is again three years with a further balance of term of two years, that is, a total indicative sentence of five years with a three year non-parole period.
It will be obvious from that, that I have found special circumstances, it being the offender's first time in custody, and also on the basis of the significant term that she will serve, the need for an extended period on parole to take into account the need for counselling and/or treatment in respect of her drug addiction and to assist her in returning to a lawful life in the community.
Having indicated the indicative sentences, the aggregate sentence will commence from 1 July 2015 when she went into custody. The non-parole period is five years and the balance of term is two years. The non-parole period having commenced on 1 July 2015, she will be first eligible for parole on 30 June 2020, and the balance of term of two years will expire on 30 June 2022.
It will be evident in relation to the sentence that I have reduced the statutory relationship of the non-parole period to the full term by some three months to provide for a full two years of supervision, should she be released at the earliest time on parole. In my view, two years of parole is a significant period of parole to effect rehabilitation, and to assist her in returning to a lawful life in the community. I recommend when released on parole that she be subject to a requirement to participate in drug rehabilitation and/or counselling or treatment for that purpose, as well as recommending that she be subject to random urinalysis during the period of parole.
Ms Sibbritt, I take it you would understand by now, from what I have said to the others, that you will be first eligible to be released on parole on or about 30 June 2020. That will depend on your performance while in custody and you will then be subject to a further two years, or whatever balance remains of the parole period, subject to supervision by Community Corrections. If in breach of any of the conditions imposed upon you in parole you will no doubt end up being returned to custody for such balance.
I should indicate of course that I have, in reaching the sentence, taken into account not only special circumstances but also the principle of totality.
I then turn to Mr Field, who is before the Court for sentence in respect of a total of six offences, together with one offence on a Form 1, and I again, as indicated, will proceed by way of an aggregate sentence. The first offence was accessory after the fact to a serious indictable offence, being manufacture a prohibited drug. The same comments that I have made in respect of Ms Sibbritt are relevant to Mr Field in relation to the actual commission of that offence, and I have again noted that the plea was entered two days after the trial was due to start. In those circumstances, a utility discount of 10% is appropriate, and in respect of Mr Field, the indicative sentence for that offence is 20 months imprisonment, that is, two months more than I provided in respect of Ms Sibbritt.
In respect of the second offence of supply prohibited drug, being more than a commercial quantity, 385.1 grams, again the utility discount allowed is 10%, in view of the late nature of the plea, and the indicative sentence is a three year non-parole period with a balance of term of two years, meaning a total term of five years with a three year non-parole period.
In relation to the ex officio offence of manufacture prohibited drug, 24.61 grams of methylamphetamine, the plea having been entered at the earliest time, the utility discount allowed is 25%, and the indicative sentence is one of two years, a fixed term.
In respect of the further offence of supply prohibited drug on an ongoing basis on 5, 12 and 19 May 2015 in a total quantity of 259.97 grams of methylamphetamine, the plea was entered at the earliest opportunity. The utility discount allowed is 25%. I note that the offence of supplying prohibited drugs on an ongoing basis was originally introduced in particular to deal with persons who sold drugs on a regular basis in the street in small quantities, being singular grams or points of grams. The offending on this occasion in each case involved a quantity on three occasions of more than 80 grams, and is for that reason alone a more significant offence than might otherwise be reflected by the statistics, on each occasion involving a payment of some $18,000.
The plea of guilty, if I did not say it, was entered at the earliest opportunity, that is, on 2 March 2016 in the Local Court, and I allow a utility discount of 25%. The indicative sentence is a six years fixed term of imprisonment. In sentencing him for that offence, I have also taken into account the Form 1 matter involving a minor quantity of 0.61 grams of methylamphetamine.
In relation to the further offence of supply prohibited drug more than the commercial quantity, 279.29 grams of methylamphetamine, the plea having been entered at the earliest opportunity, the utility discount is 25% and the indicative sentence is five years with a three year non-parole period.
I have again in respect of Mr Field found special circumstances on the basis of need for an extended period of supervision on parole to deal with his drug addiction.
I also take into account the principle of totality, and with regard to Mr Field; that principle also takes into account the five months non‑parole period in respect of the revoked s 12 bond. While the sentence will commence on the expiry of the five months non-parole period for the revoked s 12 bond, I have, however, taken it into account in setting the above by way of referring myself to the total term of imprisonment involved, and the total non‑parole period represented by the parole period to be imposed for these offences, and the aggregate sentence, and the five months I have referred to.
Accordingly, in respect of Mr Field, the non-parole period is six years commencing on 1 December 2015. He will be first eligible for parole on 30 November 2021. The balance of term is two years and six months. Accordingly, the total sentence is a term of imprisonment of eight years and six months with a non-parole period of six years. I have, off the top of my head, I think reduced the non-parole period to reflect special circumstances and totality by approximately some four and a half months from the statutory relationship. Mr Field, I take it you don't need me to explain that you will be released on parole on or about 30 November 2021, depending on your conduct while in custody, and you will then be subject to parole for the balance of the term, whatever that may be. Again, I recommend that you be required, when released on parole, to participate in counselling and/or treatment for the abuse of prohibited drugs and subjected to urinalysis. Thank you, please take a seat. This has been, as evident, a complex process. There may be some individual matters that I have omitted to refer to in dealing with the complexity of this matter. I propose to annex to my reasons, when they become available, a schedule of the charges*, maximum penalties, whether the offender was on conditional liberty and some reference to criminal history, as well as the timing of the pleas, the utility discount and the time in custody, as well as the indicative sentences and the actual sentence for the assistance of counsel, having found it impossible to deal with this matter without having created such a schedule. So I'll hand down six copies. That might assist you in deciding whether for your individual clients parity has or has not been achieved, rather than having to weave your way through the reasons on sentence when they become available, and it may assist the Court of Criminal Appeal in the future. BARR: Thank you for sitting late. Before your Honour rises and if your Honour might, there is one very brief matter outstanding, which is a claim for compensation which I have consent orders in relation to. HIS HONOUR: Yes. Isn't it also necessary to make an order for the destruction of any drugs and/or equipment? BARR: I'd ask formally for that order to be made. HIS HONOUR: I make an order for the destruction of the drugs and the forfeiture or destruction of any equipment obtained by the authorities in the investigation of these matters, noting of course that it may be necessary for some of the equipment and drugs to be retained until such time as other co‑offenders such as Mr Poniris and Mr Levar might be dealt with. BARR: Your Honour, I have consent orders in relation to a claim for compensation by EIG Insurance in relation to the damage to the Coogee flat concerning Ms Sibbritt and Mr Field. WALTERS: Your Honour, for the record, I appear for Mr Field. There is consent to the terms handed up by the learned Crown. HIS HONOUR: Yes, all right. HALL: May it please your Honour, the same is the case for Ms Sibbritt. HIS HONOUR: Yes, all right.
I order that pursuant to s 97(1), the sum of $105,927.43 be directly paid out of the property of the respondent defendants Joshua Field and Kristy Sibbritt to EIG Insurance Limited by way of compensation for loss sustained through one of the offences for which the respondents have been convicted. The liability under this direction may not be enforced so as to exceed a total of $105,927.43. WALTERS: Your Honour, I appreciate it's been a long morning, but in relation to Mr Field, there is one issue regarding the commencement date of the sentence. Should that be left to another date after I raise it with the learned Crown? HIS HONOUR: No. WALTERS: That relates to your remarks in relation to the sentence your Honour imposed, and your Honour revoked the s 12 bond. Initially when your Honour remarked, your Honour indicated that your Honour sentenced Mr Field to ten months imprisonment with a non-parole period of five months from 15 May 2015 to 14 October 2015, bearing in mind he went into custody in respect of the matters for which your Honour sentenced him on 1 July 2015. Mr Rowe of counsel who appeared informed me that what your Honour did is your Honour took into account the period of custody he's served in relation to that offence of keychain pistol in effectively backdating that sentence, which your Honour can of course do pursuant to s 47 of the Crimes (Sentencing Procedure) Act. A criminal record would confirm what your Honour's sentence was in relation to the s 12 bond, so on my calculations that sentence that your Honour has imposed today of a non-parole period of six years would commence on 15 October 2015 to reflect the period he's been in custody for these matters for which your Honour sentenced him. I've raised that with my friend's instructing solicitor just by way of a note, I didn't want to interrupt the proceedings. BARR: As I understand that's the note that the Crown has also in relation to that commencement-- HIS HONOUR: Yes, I must confess that I realised as I was delivering the sentence some problem, but I thought I had it resolved in my mind that it was the later date. But you are no doubt correct. These are your orders, Mr Crown, let me just return them. In respect of the s 12 bond the five months non‑parole period expired on 14 October 2015? WALTERS: That's right, your Honour. HIS HONOUR: So the sentence in respect of this matter should commence on 15 October 2015. WALTERS: Yes, thank you, your Honour. HIS HONOUR: And he would then be eligible for parole on 14 October 2021 and the total term will expire is it 14 March 2024, two years six months later? WALTERS: I think it's April, your Honour. HIS HONOUR: April? WALTERS: Yes. HIS HONOUR: Yes, sorry, April. All right, I correct what I said in respect of Mr Field and you should correct your schedule and I'll correct the schedule to be attached to the reasons.
The sentence with a non-parole period of six years in respect of Mr Field commenced on 15 October 2015. He will be first eligible for parole on 14 October 2021. The balance of term is two years and six months. The total term of the sentence is eight years and six months expiring on 14 April 2024. *See attached Schedule of Charges and Sentences. Field & Sibbritt Schedule (26.5 KB, docx)

R v Field; R v Sibbritt; R v Tran; R v Ting; R v Yueng

At a glance

Court

Decision date

Before

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Judgment (32 paragraphs)

Cases Cited (2)