R v Jin

District Court of NSW|2021-10-05

Charges

HIS HONOUR: Allen Jin stands for sentence as a result of having pleaded guilty to two substantive charges. The first charge is one contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985. The formal charge is that on 28 February 2020 at Wentworth Point in this State he did supply an amount of prohibited drug, namely 999.5 grams of 3, 4 methylenedioxymethylamphetamine, commonly known as MDMA, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. The second substantive offence is one pursuant to s 25(1) of the Drug (Misuse and Trafficking) Act 1995. The formal charge was that on 28 February 2020 at Wentworth Point in this State he did supply a prohibited drug, namely 200.6 grams of cocaine.

Maximum Penalties

The maximum penalty for the first offence is imprisonment for life and/or a fine of 5,000 penalty units. Parliament has prescribed a standard non‑parole period of 15 years. The maximum penalty for the second offence is imprisonment for 15 years and/or a fine of 2,000 penalty units. There is no standard non‑parole period for that offence.

Purity of Drugs

The purity of the large commercial quantity of MDMA was 38% for the majority of it and 16.4% for a total of 16.8 grams of the drug. The purity of the cocaine related to the first charge was between 77.7% and 80.9%. The purity of the MDMA, which is one of the charges on the Form 1, was 80.3%.

Facts

On 28 February 2020 police attended the vicinity of a residential unit known as 117/3 Stromboli Strait at Wentworth Point in this State in order to execute a search warrant at those premises. Police observed a white Ford Ranger utility parked at the front of the premises. The present offender left that vehicle and entered the premises. The premises are described in the agreed facts as being a single storey ground floor apartment with street access. The apartment has two bedrooms, two bathrooms, and an open plan kitchen and living area.
The police entered the premises at 11:12am. The offender was located in the bathroom of the premises. He was the only occupant of the premises at that time. He was arrested and informed of his rights, and at 1pm was taken to the headquarters of the Australian Federal Police in Sydney.
A search of the premises was conducted and a number of items were located and seized. There were two 12 gauge Royal Buck shotgun cartridges located in a shopping bag in bedroom 1. Located in that shopping bag, or a similar bag, were two 45-70 FC ammunition cartridges. Those items of ammunition are one of the offences which the offender asks me to take into account on the Form 1. In the wardrobe of the bedroom one the police found two small sets of scales with two scale covers and a plastic spoon. They also found a total of 200.6 grams of what was later analysed and found to be cocaine. The total was constituted by a vacuum sealed bag containing two clip seal bags with a total of 200.4 grams of cocaine, with a purity ranging, as I have said, between 77.7% and 80.9%. That was located in another shopping bag in the wardrobe in bedroom 1. There was also a clip seal bag located in a G Shock container located inside a box in that wardrobe. That contained 0.2 grams of cocaine with a purity of 60.7%. It is accepted by the Crown that that 0.2 grams of cocaine was for the personal use of the offender.
Police found a total of 999.5 grams of a drug analysed to be 3,4 methylenedioxymethylamphetamine, MDMA. That was found in a clip seal bag containing a brown crystal and rock like substance found in the fridge cavity in the kitchen. That contained 982.7 grams of MDMA with a purity of 38%. There was a vacuum-sealed bag containing powder found in the middle shelf of the wardrobe in bedroom 1, that contained 16.8 grams of MDMA with a purity of 16.4%. They also found a clear, vacuum-sealed plastic bag containing one clear clip seal plastic bag containing brown crystallised material, which was located in the G Shock container located inside a box in the wardrobe of bedroom 1. That contained 1.1 grams of MDMA with a purity of 33.8% which is accepted by the Crown was for the personal use of the offender.
I should state that a G Shock container is a hexagonal tin container designed for marketing of Casio men's watches. It can be seen, therefore, that in the G Shock container was the cocaine for the offender's personal use and the MDMA for the offender's personal use.
The Police also found 15.2 grams of what was found to be methylamphetamine with a purity of 80.3%. That was found in eight knotted freezer bags, and one white tissue containing white crystalline material, located inside a box in the wardrobe in bedroom 1. That amounted to 14.6 grams of methylamphetamine. There was also a bag containing white crystalline substance located on the top shelf of the wardrobe in bedroom 1, that contained 0.6 grams of methylamphetamine which, it is accepted by the Crown, was for the offender's personal use.
Police also found a total of 14,091 grams of benzocaine in a clip seal bag containing a heat seal foil bag affixed with the label "Benzocaine USP" in the kitchen cupboard above the fridge cavity and in 13 silver airfoil bags marked in the same way on the floor of bedroom 1.
They also found other indicia for drug supply. That was a money weighing machine that was found in the wardrobe of bedroom 1, a heat sealer found in the kitchen above the fridge cavity, and a box containing two rolls of textured heat seal plastic bags. One roll had been unopened and one was partially used. They were also located in the cupboard above the fridge cavity. Two sets of scales were found in the kitchen cupboards. There were multiple medium-sized clip seal bags found in the kitchen on the top shelf of a cupboard and three boxes of clip seal bags, and a plastic packet of freezer bags, and an open box of disposable gloves located in a kitchen cupboard.
Also found were a key, a swipe card, and two mobile phones, found on the kitchen benchtop. To whom they belong, or what the mobile phones might have shown, is not the subject of any statement in the agreed facts.

ERISP

After his arrest the offender participated in an electronically recorded interview. The agreed facts contain this extract from the ERISP: "(a) Stated that his current residential address is [redacted] Keeler Street, Carlingford where he has lived for 19 years... (b) Stated that his phone number was [redacted, ending in 333]... (c) Stated he resided at 117/3 Stromboli Strait, Wentworth Point, New South Wales and that he rented the premises through a private lease... (d) Stated that no other person resided at that address or had access to the premises... (e) Stated that he started the lease at Wentworth Point about 5‑6 months prior... (f) Declined to comment in relation to surveillance photographs from 16 and 19 February 2020; (g) Declined to comment in relation to the ammunition, drug supply paraphernalia and MDMA found at Wentworth Point premises; (h) When shown photos of items seized from the Wentworth Point premises and asked whether he had seen any of the items in his house before, stated, 'Nah, never seen them'... (i) Denied ever being involved in the trafficking of MDMA... (j) Stated that he was not a valid firearms licence holder in the State of NSW, or any other State or Territory of Australia..."
The only scientific forensic evidence obtained is fingerprints obtained from the front of a Hercules clip seal plastic bag located in a Coles shopping bag in the fridge cavity, however there is no suggestion that that Coles bag, or that Hercules clip seal plastic bag contained any drug.

Mitigating Matters

Exhibit 9 is an affidavit of Sam Chamas, a solicitor who acts for the offender, sworn on 29 September 2021. The first part of it deals with Mr Chamas' review of evidence provided to him as the solicitor acting for the offender. His affidavit contains these paragraphs: "3. During the course of the legal proceedings, I was provided with approximately nine lever arch folders of brief material and a significant amount of electronic material. I thoroughly considered that material. 4. As instructed by counsel, this affidavit is to provide, in summary, material contained within that brief to assist the Court during the sentence proceedings. 5. As part of the brief of evidence I was provided with a transcript of the electronic record of interview (ERISP) of Mr Jin dated 28 February 2020. On page 3, questions and answers 29 and 30, of the ERISP, Mr Jin provides his current address as [redacted] Keeler Street, Carlingford. On page 18 of the ERISP, question and answer 224, Mr Jin states that he lives in Stromboli Strait in conjunction with Keeler Street. He states that he is trying to move out of Keeler Street and is 'slowly transitioning out'. He states that he rented this unit at Stromboli Strait on a private basis and does not wish to disclose the identity of the person who leased him the property... 6. Police have provided a walk through video of the premises at Stromboli Strait. During the walk through it is evident that there are very limited items within the unit. The unit has two bedrooms. One bedroom has a bed with a doona. However, there are no other items of clothing or belongings within that room. The cupboards are empty, the shelves are empty, and there is nothing on the floor. The second bedroom has no furniture and has boxes and other items on the floor. Within this room, drugs, the subject of the charges, are found. There are no personal belongings contained within this room. The cupboards are almost empty. On viewing the lounge room, there are a set of couches and no television. There are also limited items, or personal belongings, within this room. In the kitchen, there are limited kitchen appliances, or utensils, and no fridge. Within the fridge cavity, drugs the subject of the charges are found. The police also executed a search warrant at [redacted] Keeler Street, Carlingford, the home of the Jin family. 7. During the search of [redacted] Keeler Street, Mr Gang Jin [the offender's father] nominates bedroom three to be the bedroom occupied by his son, Allen Jin. In the statement of AFP Officer Nathan Rose, dated 28 February 2020, Mr Rose states that Mr Gang Jin nominated bedroom three as belonging to Allen Jin. During the walkthrough of bedroom three, it is clear that the bedroom is occupied. The cupboards are full, a significant number of items are found on the computer desk, and the room is furnished. Letters and identification of Allen Jin are found in the room. 8. From perusing the brief, it is clear that the police commenced surveillance, in relation to the investigation (Operation Olney) on 3 January 2020. The surveillance continues until 28 February 2020. During the period of almost two months surveillance, police provide the surveillance logs relating to Mr Jin for 16 and 19 February 2020. The surveillance operatives observe and take photographs of Mr Jin. Importantly, the clothing worn by Mr Jin on 16 February 2020 is found in bedroom three at [redacted] Keeler Street, Carlingford. This is put to Mr Jin during the ERISP interview. Further, according to the logs, Allen Jin spends a very short period of time at Stromboli Street on both 16 and 19 February 2021. 9. During the ERISP interview with police, Mr Jin indicated that he parked in car spaces which were not metered in order to save money. He does not own any significant assets. 10. Police conducted DNA and fingerprint examinations and provided DNA and fingerprint results of the items seized from Stromboli unit. The DNA and fingerprints of Mr Jin were not found within the bedroom containing the drugs. The prints of Mr Jin on a Hercules clip seal bag found in the fridge cavity as per paragraph 9(a) of the agreed statement of facts. This did not contain any drugs. 11. Alan Wong, computer forensic examiner, AFP, and Paul Glenday, AFP Officer, in their statements dated 17 April 2020 and 8 April 2020, stated that they attended 2 Keeler Street, Carlingford and examined a number of electronic devices. As a result, they state that no items of interest were seized as a result of their examinations. 12. Police seized two mobile phones from bedroom three of [redacted] Keeler Street, Carlingford and two mobile telephones from Stromboli Strait. To date, no statements or extraction reports have been provided to evidence any drug supplies by Mr Jin. 13. The brief of evidence does not contain any evidence of any drug ledgers, either at Stromboli Strait or Keeler Street. There is no evidence of Mr Jin's DNA or fingerprints on the scales, money weighing machine, G Shock container, boxes, gloves, or heat sealer found at Stromboli Strait. There is also no evidence of any cash found at Stromboli Strait. Upon police seizing Mr Jin's telephone, there is no evidence of any calls to Mr Jin."
At the moment I am not considering the offender's personal circumstances. However, what is advanced on his behalf is contained in part of a letter which he gave to the Court, which is Exhibit 3. In it he commences by setting out his background and how he fell into the use of illicit drugs. His letter continues thus: "I fell into the trap of abusing alcohol and taking part in the consumption of what the media portrays as social drugs. This only ever got worse. It never leaves and by the time of my arrest, I was my lowest. It was a time where I was moving out of home as I did not want to burden my parents and did not want them to know of my drug and alcohol abuse. I couldn't really afford to move out, so I was moving things slowly but continued to remain at my parents. All my belongings were still in my room at home. There was a bed at Stromboli in one of the rooms and nothing else in that room. The other room had all boxes on the floor and most of the drugs and equipment were found in this room. The drugs and equipment were put there by others. I knew they were there and that the drugs would be supplied. None of my clothes were in any of the cupboards in that room. There was also drugs and other stuff in the kitchen and the fridge cavity. There were couches in the lounge room but no TV. There were limited items at this place as I had not fully moved in. I was given some drugs to take for myself for the drugs and the stuff to be there. I never sold the drugs to anyone. I was asked by police to identify others. This is something I cannot do as a result of fearing for my safety."
The question for me is whether that is a true reflection of what the offender's real involvement was in this drug undertaking. In the course of submissions the solicitor for the Crown referred me to R v Kutami [2001] NSWCCA 353. I am more inclined to refer to the comprehensive review of cases on this point made by Wilson J in Imbornone v R [2017] NSWCCA 144 at [57]. Her Honour sets out five principles derived from the case law which she sets out under this chapeau: "This Court has frequently said that untested out of court statements made to third parties will be treated with caution. Although it should be a principle that is well known and understood it seems necessary to re-state it. The following statements are derived from the authorities:..." Of course exactly the same considerations apply to untested out of court statements made by the offender himself, for example the untested histories given by an offender to third parties such as psychologists and psychiatrists, and even the makers of sentencing assessment reports. I therefore must approach the matter very cautiously. However, in earlier judgments I have pointed out that sometimes a judge when sentencing will rely on these out of court statements and one of the things that a judge does in deciding whether to accept the out of court statements is whether it appears to be consonant with the known facts, whether it is repeated without inconsistency, and whether it is accepted by persons, who might be thought to be cynical, to be a correct statement.
It is known definitely that the offender was renting the premises at Wentworth Point with the intention of residing in it himself. It is clear that most of his personal belongings, in fact all of his clothing and the like, were still in the bedroom which he occupied in his parents' home, and had so occupied for many, many years. There is no evidence of any item of his clothing being at Stromboli Strait. The evidence suggests that there was one bed and a doona in the bedroom which did not contain the drugs, and couches in the living room but without any television that could be watched from those couches. It is clear to me from the statements made by the offender's father, Gang Jin, in his letter to me, which is Exhibit 4, that the offender continued to live at home up until the time of his arrest.
Tendered in the offender's case is a report of Ms Ann-Marie De Santa Brigida, a psychologist, who assessed the offender on 13 August 2021 for a period of approximately two and a half hours. One and a half of those hours was spent in a clinical interview, and there was one hour of psychometric testing. Section 3 of Ms De Santa Brigida's report contains this history: "(3.2) Mr Jin reported that he was at the premises at the time of his arrest 'looking after the place', and he stated that he was aware that drugs and drug paraphernalia were being kept on the premises. He reported that for his assistance he was paid in drugs and at the time he had a significant cocaine abuse problem, which he was unable to finance through any other means. (3.3) Mr Jin expressed his remorse for the current offences and stated that being arrested 'was a shock to my system and was enough to throw me off the path to being a criminal. I haven't taken any drugs since. Having a normal job means I re-set. I'm not chasing [the] need to make friends'."
The offender was also interviewed on 31 August 2021 for approximately one hour by AVL by Dr Richard Furst, a forensic psychiatrist. Under the heading "Offence related issues" Dr Furst records this: "Mr Jin has acknowledged his guilt in relation to the drug supply and related offences before the Court. He said, 'I was hanging out with the wrong people I guess', which included socialising with people who spent a lot of money on their cars. He described being on a 'downward spiral' of drinking and drug use, which only got worse after he rented his own unit in Wentworth Point around November 2019. He stated he was using MDMA at this time. He regretted his actions and knew that what he had done was wrong."
Again there is need to look further into the offender's personal circumstances, to which I shall in due course turn, in order to ascertain whether I accept the thrust of what is put to me on the offender's behalf that his role was merely to provide his premises to others for them to store drugs and drug equipment and paraphernalia in consideration of the offender's being given drugs to satisfy his drug habit. In other words he was merely a "warehouseman" although I am not concerned with fixing labels but with ascertaining exactly what the offender did.
I must, in the circumstances, take the view that what he said in the record of interview that no other person had access to the premises, is incorrect. He may have admitted others to the premises, or others may have had a key to the premises, but it is clear that he permitted his criminal associates to store drugs there, and drug equipment, if the thrust of his case before me is to be accepted. I have reached the view, on considering all the evidence, that that view ought be accepted.

Personal Circumstances

I turn then to consider the offender's personal circumstances which reinforce me in that view. The offender's personal circumstances are best set out in the history which he gave to Ms De Santa Brigida set out in her report of 20 September 2021.
Mr Jin's parents, Mr Gang Jin and his mother Ms Jing Xu, were migrants to Australia. They bought an ice cream franchise which they operated in Chinatown in the City for many years. They have two children, the elder is the current offender, Allen Jin, and he has a younger brother Eddie, who is approximately two years his junior. The offender was born in 1993 and is currently 28 years old. Eddie works as an analyst for a large international bank and has no social problem, or had any problem with the law.
The offender grew up in Blacktown until he was either ten or 11 years old. He attended Blacktown South Public School until either year 3 or year 4, and then, when his family moved to Carlingford, he attended Carlingford West Public School where he completed year 6. The family moved to Carlingford when the offender was either ten or 11 years old. In his father's letter his father said this: "My son has lived a very normal childhood. We moved from Blacktown to Carlingford in the year 2000 in pursuit of a better education by sending him to the Kings School. We wanted our son to have a well-rounded education and participate in sports along with having a greater understanding of leadership. This was understandably a hard time in Allen's life as he was raised with a strong Chinese influence up until he started at Kings, which was predominantly filled with students from farming and country backgrounds." According to the history obtained by Ms De Santa Brigida the offender's English was very poor until he was in year 6. It appears that his parents' English was also poor and no doubt Chinese, whether it be Cantonese or Mandarin I do not know, was spoken at home. There was nothing to suggest that there was anything abnormal in the offender's childhood or family development.
The offender attended the Kings School between years 7 and 12. He obtained ATAR of 63. He then attended the University of Western Sydney where he commenced studies to become a Bachelor of Economics. However, he dropped out of those studies in his third year. According to Ms De Santa Brigida he reported that university was difficult because he did not talk to anyone and he had no friends at university.
The offender told Ms De Santa Brigida that he subsequently opened BMR Autowerkes Pty Limited around 2012/2013 with a friend he met through a shared interest in cars and that business sold car parts for late model European cars. The offender told Ms De Santa Brigida he operated that business until the end of 2019. This is corroborated by a testimonial supplied by Mr Sujoy Chowdhury of 11 August 2021, and by a company search for BMR Autowerkes Pty Limited. That shows that the offender was initially appointed as a director of the company on 10 October 2011, together with Mr Sujoy Chowdhury and Mr Stuart Lyle Jackson. The offender ceased to be a director on 1 April 2016 but was re-appointed as a director on 12 December 2016. In the meantime Mr Jackson ceased his directorship on 12 November 2013. The paid up capital of the company is shared equally between the offender, Mr Chowdhury and Mr Jackson.
Mr Chowdhury's testimonial says this: "I first met Allen back in May 2010, as we both had a common passion for cars. It did not take long to form a friendship and over the following years we grew ever closer. I consider Allen to be one of my closest friends. In October 2011 we started a business together, BMR Autowerkes Pty Limited, which specialises in after market performance parts for European cars. We actively worked together at BMR until September 2019, when we decided to scale down our operations. Since then, Allen has still been part of BMR, but continued full time work elsewhere."
The offender was arrested, as will be clear from what I have already said, on 28 February 2020. He was admitted to bail on 3 April 2020 after 36 days incarceration. Since then he has been working full time for SSS Autoparts at Villawood. The manager of that is, not unsurprisingly, Mr Stuart Jackson. I assume this is the same Stuart Jackson who was one of the founders of BMR Autowerkes Pty Limited. Mr Jackson's testimonial of 28 June 2021 describes the offender as a valued employee since April 2020. The offender started off as a delivery driver, then progressed to working in the warehouse, then progressed to working in sales, and most recently was working in accounts. The final paragraph of Mr Jackson's letter accepts that the offender might soon be leaving the company but that was in anticipation of his re-entering incarceration as a result of these proceedings. I am told by learned senior counsel for the offender, and I accept, that his job with SSS Autoparts at Villawood remains open to him should he not be sentenced to full time imprisonment.

Drug and Alcohol History

According to Ms De Santa Brigida's history the offender first experimented with cannabis at the age of 20 or 21. By the age of 24 or 25 he experimented with cocaine and admitted to her that he was "hooked from the start". Initially the offender started using cocaine each Saturday night. Later it extended to Friday and Saturday nights. That led his life to spiral out of control and he ended up using cocaine every Thursday, Friday, Saturday and Sunday night. He would use one gram of cocaine per day. One of the reasons that he gave for using the drug was this, according to Ms De Santa Brigida: "He stated that he had always struggled to make friends and he had progressed through primary school to high school and onto university making very few friends. He reported a very small group of four or five friends, one of whom he had started a business with in 2012/2013. However he stated that once he started to use cocaine regularly he suddenly had a much larger group of friends. Mr Jin reported at the age of 24/25 he was introduced to using cocaine and alcohol concomitantly and over a period of four days he would consume a 700 mil bottle of Hennessey. The author notes that concurrent use of cocaine and alcohol produces a psycho-active substance known as cocaethylene which has pharmacological properties similar to that of cocaine, but which has a plasma half-life three to five times that of cocaine. It has been found that cocaethylene raises levels of the brain chemicals dopamine and serotonin and block their re-uptake. This increases the risk of an individual engaging in more impulsive and violent behaviour. When cocaine and alcohol is mixed, cocaethylene can stay around for days to weeks in the body." That led Ms De Santa Brigida to diagnose, with the benefit of hindsight, stimulant use disorder, cocaine, severe, now in sustained remission. Ms De Santa Brigida's history continued in this fashion: "Mr Jin stated that he was also using crystal methylamphetamine 'Ice' and MDMA, although his primary drug of abuse has always been cocaine. He also reported that on one occasion he tried Xanax but did not like the effect and did not use it again."
Since his release from custody the offender has sought treatment from Daniela Stojanova, a psychologist, and has attended consultations with her on 22 August, 5 September, 26 September, 12 December 2020, and 6 February, 6 March, 17 April, 29 May, 17 July, 20 August and 18 September 2021. According to the history given to Ms De Santa Brigida the offender has completed the Substance Abuse Program with Ms Stojanova, the substance of that program is set out in Ms De Santa Brigida's report.
The drug and alcohol history recorded by Dr Furst is completely consistent with that accorded by Ms De Santa Brigida. That is not surprising considering that Dr Furst had available to him Ms De Santa Brigida's report and could have borrowed the history from her report. One thing that Dr Furst's history in this regard adds is this: "He went to Japan on a skiing trip on 2 February 2020 in an effort to 'clean-up' [sober up] from the drugs he had been using and to stop drinking. He was in Japan for about 12 days and was arrested about two weeks after his return to Australia, i.e. on 28 February 2020." I shall need to return to the Japanese trip again for another reason later.
The history of drug use is confirmed from perhaps an unlikely source, the testimonial from Mr Chowdhury, clearly the person who the offender referred to in giving his history to Ms De Santa Brigida. The relevant part of the Mr Chowdhury's testimonial is this: "Allen and I have been good friends for a decade now and as any true friendship goes, we have had our ups and downs. Predominantly ups of course... we have worked together, travelled together, and disagreed at times, but mostly we enjoy each other's company while chatting over some food. Our immediate group of friends is small, with only five of us. A few years ago, around late 2018 to early 2019, our friendship group started to notice a few small changes in Allen's behaviour. Allen started spending time with his 'other friends' as we jokingly called them at the time. We had no idea who they were, but whenever we tried to organise a dinner together, or call Allen, he would be busy and dismissive. He was acting differently and often he would be out in a random suburb at someone's house that we didn't know. Although this concerned me and this wasn't the Allen I knew so well, he would still come to work every day, so I didn't press him on what was going on. I had no idea he was using drugs, or the type of people he was associating with. In February 2020, it came as a shock to me Allen had been arrested and I first learnt of the alleged actions. This is not the Allen I had come to know so well. Personally I took time to reflect on what was happening and if I could have done more to try and pull him away from his 'other friends'. It may sound cliché but in Allen's case it is true, the person I knew so well was kind and caring. I've never seen him overly irate, violent or displaying any animosity towards anyone or anything. He would go out of his way to help me with anything and we discussed almost everything with each other. That is why it saddens me to have learnt what was going on in this manner." The testimonial from Mr Chowdhury goes on to mention the changes he has noticed in the offender since his release from custody and how he has now returned to the state in which Mr Chowdhury knew him so well, and that the offender no longer associates with those 'other friends'. The testimonial of Mr Chowdhury also gives credence, if I may use that expression, or perhaps it should be that the opinion of Ms De Santa Brigida gives credence to what Mr Chowdhury says, in another aspect.

Adult ADHD

Ms De Santa Brigida goes on to diagnose adult ADHD. Section 6 of Ms De Santa Brigida's report concerns the offender's psychological profile. It contains this material: "(6.1) It is essential in conducting a psychological assessment to closely examine the early years of the individual, as research has now conclusively demonstrated that conduct problems are the biggest predictor of later onset of serious mental health problems. (6.2) It is the assertion of this author that Mr Jin would not have met the criteria for Oppositional Defiant Disorder or Conduct Disorder during his developmental years. (6.3) Mr Jin stated that he had no mobility problems in childhood, but he did have a stuttering problem. He reported that several of his teachers had suggested that he appeared to have symptoms of Attention-Deficit/Hyper-Activity Disorder, but his parents were never keen to have him diagnosed. He reported that in retrospect, he realised this was a significant problem when he tried cocaine for the first time and experienced a paradoxical effect from the drug. He reported that whilst on cocaine, he could concentrate and focus and everything suddenly seemed to be much easier, including his ability to relate to other people. Mr Jin reported that when he had consulted Ms Stojanova for the first time she had done a Screener for ADHD/ADD and this provided a strong positive indication for this disorder. (6.4) Mr Jin reported that following this, he consulted Dr Charles Chan, psychiatrist, at the Mind Oasis Clinic in November 2020. He had been diagnosed with ADHD (inattentive sub-type). He stated that initially he was prescribed dexamphetamine but this was subsequently changed to Ritalin. It was not possible to get confirmation directly from Dr Chan but the diagnosis was confirmed in correspondence from his general practitioner Dr Fayez Habib. (6.5) Mr Jin was also administered the CAARS by this author to further ascertain the effect of this disorder and the results are reported below..." As I understand the results of the testing, they confirm the diagnosis of ADHD. According to Ms De Santa Brigida the presence of ADHD in childhood does predispose individuals to a number of adult disorders including substance abuse disorder.

Consideration

ADHD in childhood also explains the difficulties that the offender had at school, particularly in high school, and the low number of friends he had over the years, and that the use of the cocaine was something that generated a greater group of friends but, of course, brought with it the risk of developing the wrong type of friend, that is other drug users.
Everything points in the direction of the offender's having developed an addiction to cocaine in his early 20's. That led to a $400 a week habit. That led him to run up a drug debt which caused him to acquiesce in permitting "associates" to store drugs and drug paraphernalia in the flat that he was renting at Wentworth Point leading, ultimately, to his arrest and charging. The histories are consonant and consistent and what is diagnosed by Ms De Santa Brigida is concurred in by Dr Furst, a psychiatrist.
I therefore accept that the offender's role in this drug organisation was merely to permit his premises to be used as a warehouse for the consideration of providing him with the drugs to maintain his drug addiction and therefore to maintain his compliance with the drug organisation. Whilstever he still had drugs he needed, to get those drugs he had to go along with what was offered to him, permitting his premises to be used as a warehouse for the illegal drugs.
One of the submissions put to me by the Crown is that the offender's skiing trip to Japan in the early months of this year was inconsistent with his owing money to the drug organisation, it was inconsistent with his permitting the drug organisation to use his premises so that he could get his drugs for "free". However the reason that he went on this trip was to try to free himself from his drug addiction. If the drugs he was using were being paid for by his permitting his premises to be used as a warehouse he was obviously saving the money he was previously spending on drugs and could have amassed a sufficient sum of money to go on the trip to Japan in February 2020. I therefore do not accept that there is inconsistency between the offender's assertion of what he was doing to obtain his drugs and taking the trip that he took to Japan in February 2020 in order to try to wean himself away from his illicit drug addiction.
To recapitulate, I accept that the offender's role was merely permitting his flat at Wentworth Point to be used as a storehouse, or warehouse, where he permitted those high in the hierarchy of the drug organisation in which he was participating to store drugs in bulk and paraphernalia associated with the distribution of drugs.
There is, however, no evidence that his premises were used, for example, to break up large quantities of drugs into smaller amounts, packaging them into the plastic bags found, using perhaps the heat sealing machine that was found there, using scales to weigh out various small quantities of drugs that could be sold on the street. There is no evidence to support that at all.
I accept the evidence tendered on behalf of the offender that his remuneration for the part he was playing was merely the provision of free drugs for his own use so that he did not need to use his own money to support his established cocaine habit, and habit of using other illicit drugs. In other words his involvement in the organisation which was supplying a large commercial quantity of MDMA was at the bottom of the range, as was his involvement in supplying the drug cocaine.
However organisations involved in supplying drugs can only operate when there are people at the bottom of the hierarchy of those dealing in drugs. Large, or even medium sized, syndicates distributing illicit drugs for profit can only exist when there are people prepared to be couriers, warehousemen, or delivery people. Without people prepared to perform such menial roles drug trafficking would be much harder. I do not wish to mislead anyone to suggest that what the offender did was not wrong, or is excusable, rather he was dragged into this trafficking group and his role, albeit menial, was nevertheless essential.
The offender comes before this Court as a young man of prior good character. He has no criminal record, not even for a traffic offence. Having said that, the authorities make it clear that people in the offender's position are more likely to be involved in drug trafficking because people who have criminal records related to drug use are less likely to be used by those higher up in a drug syndicate because being "clean skins" they are thought to be less likely to be suspected by the police looking for people distributing drugs in the community. Prior good character therefore has less weight than it normally has in cases of this nature.
The offender has done everything that could be expected of him to rehabilitate himself. As I mentioned yesterday, he has undergone treatment for his drug addiction with Ms Daniela Stojanova and has sought treatment from a psychiatrist, Dr Charles Chan, who has prescribed medication for him which he has taken.
I accept that since his arrest on 28 February 2020, some 21 months ago roughly, the offender has been free of drugs. He has not taken any drugs in the interim. I accept that his risk of re-offending is low.
The sentencing assessment report prepared on 3 September 2021 by Mr Lex Buko, a Community Corrections Officer, assessed him as having a low risk of re-offending according to the Level of Service Inventory-Revised. Ms De Santa Brigida, the qualified psychologist, reached the same conclusion. In her report she sets out both dynamic risk factors and static risk factors and, applying the same test used by Community Corrections, reached the same result.
Having done his best to rehabilitate himself, having returned full time to the work force, having eschewed drugs, the prospects of rehabilitation are excellent, and therefore the prospects of recidivism are extremely low.

Statistics

The offender's learned senior counsel has referred me to statistics kept by the Judicial Commission for offences under s 25(2) of the Drug (Misuse and Trafficking) Act 1985, that is for offences of supplying, or knowingly take part in the supply, of a large commercial quantity of a prohibited drug, not being cannabis leaf. The statistics available are for offences involving the standard non-parole period of 15 years after the decision in Muldrock v R (2011) 244 CLR 120. There are a total of 258 cases. 95% of offenders were sentenced to imprisonment. 5% of offenders were, however, given an Intensive Correction Order ("ICO"). The absolute number of offenders given an ICO was 13. Of those persons who pleaded guilty and had no prior convictions there were 84 cases. Of those 90.5% were sentenced to imprisonment, and 9.5% were given an ICO. The absolute number given an ICO was 8. The number sentenced to imprisonment was 76.
Of all offenders who were sentenced to imprisonment the median non‑parole period was four years, and the 80% range, that is the range excluding the bottom 10% of the cases and the top 10% of cases, was between six years for the non-parole period and two and a half years for the non-parole period. For those who had no prior convictions and pleaded guilty, and were sentenced to imprisonment, the median head sentence was almost identical with that for all offenders, and the 80% range was the same, that is between eight years at the top of the 80% range and two and a half years at the bottom of the 80% range.
For the offence contrary to s 25(1) there was a sample of 1,030 cases. Only 30.8% of persons were sentenced to imprisonment. The most common sentence was an ICO given in 50.9% of cases, 13.8% of offenders received a Community Corrections Order ("CCO"), and 1.8% of offenders received a Conditional Release Order with a conviction and 2.4% of offenders received a Conditional Release Order without conviction. For the same offence, where a person had no prior conviction and pleaded guilty, only 11.3% of offenders were sentenced to imprisonment, 54.2% of offenders were given an ICO, 19.2% of offenders were given a CCO, and 14.3% of offenders were given a Conditional Release Order either with or without conviction.
Of those sentenced to imprisonment for an offence contrary to s 25(1) who had no prior conviction, and no plea of guilty, the 80% range for non‑parole periods was between two and a half years and one year, and the mean non-parole period was 18 months imprisonment. However, as I have pointed out, most offenders who had no prior conviction, and pleaded guilty to an offence under s 25(1) were given an ICO.

Assessment

For the offence of supplying a large commercial quantity of MDMA, bearing in mind the matters dealt with on the Form 1, I start with a head sentence of three and a half years. I reduce that by 25% because of the offender's plea of guilty at the earliest available opportunity. Rounding that figure down in favour of the offender, that reduces the head sentence to two years and seven months. As there is a standard non-parole period for this offence I am required to indicate a non-parole period. Bearing in mind the special circumstances, I would have fixed a non-parole period of 18 months.
For the offence contrary to s 25(1) of the Drug (Misuse and Trafficking) Act, I start with a theoretical head sentence of two years imprisonment. I reduce that to 18 months because of the utilitarian value of the offender's plea of guilty, the discount of 25% being that agreed to between the parties.
I intend, however, to impose an aggregate sentence. The sentences should not be wholly concurrent because two different types of drugs were the subject of the charges and possession of different types of drugs for the purposes of supply cannot be regarded as one episode of criminality: Ninness v R [2014] NSWCCA 288. I have reached the view that the appropriate head sentence is three years imprisonment.

Prison or ICO?

The question which then arises is how should that sentence be served. Should it be served by way of full time custody with my setting a non-parole period, or should that sentence be served by way of Intensive Correction in the community? I have reached the view that the latter is the proper way to proceed in this case.
As I have pointed out, the offender has done his best to rehabilitate himself, he has undergone drug rehabilitation, he has sought care for his psychiatric illness, and he is on the "straight and narrow". He has full time employment. All of those advantages might be undone if he were returned to custody.
The most recent decision on the question of the imposition of an ICO is Mandranis v R [2021] NSWCCA 97. In the judgment of Simpson AJA, with whom Garling and N Adams JJ concurred, her Honour pointed out at [22] s 5 of the Crimes (Sentencing Procedure) Act 1999 precludes the imposition of a sentence of imprisonment unless after all possible alternatives have been considered the Court is satisfied that no penalty other than imprisonment is appropriate. This is such a case.
At [25] her Honour said this: "Because, as we see below, an ICO is a mode by which a sentence of imprisonment may be served, in contra-distinction to CCO's and CRO's, it is not one of the alternatives required to be considered in the application of s 5: Regina v JCE [2000] NSWCCA 498... as explained in Zamagias [2002] NSWCCA 17 at [25]. Indeed, it would be logically wrong to do so, because s 7 proceeds on the premise that a sentence of imprisonment has been imposed. As was put by McCallum JA in Wany v The DPP [2020] NSW 318: 'An ICO is a way of serving a term of imprisonment; it cannot, at the same time, be an alternative to imprisonment' (at [18])."
Commencing at [28] Simpson AJA then considered an ICO and the methodology to be employed. Commencing at [42] her Honour then referred to the conflict in the caselaw concerning the availability of an ICO and the consideration of community safety. At [50] her Honour said this: "...I consider that s 66(1) subordinates (but does not exclude) other considerations to community safety. That is the inescapable consequence of declaring community safety to be 'the paramount consideration'. It is important to note, however, that is so only at the point when consideration is being given to whether to make an ICO thus, rehabilitation (s 3A para (d)) will give way to community safety where appropriate; in an appropriate case, accountability and denunciation may be given less weight than they otherwise would. In this respect, it is not to be overlooked that the s 3A purposes have already been taken into account in selection of the term of the sentence. By s 66(3), they are again to be taken into account in relation to the specific question of whether the sentence is to be served by way of ICO. It is only in this context that they may be said to be 'subordinate'. That does not diminish their importance at the earlier point of the sentencing determination. This is what I think Harrison J had in mind in [86] of R v Pullen [2018] NSWCCA 264."
Here I do not find any likelihood that placing the current offender on an ICO would endanger community safety. Section 66(2) of the Crimes (Sentencing Procedure) Act 1999 requires me, when considering community safety, to assess whether making the order for an ICO, or serving the sentence by way of full time detention, is more likely to address the offender's risk of re‑offending. In my view the offender's risk of re-offending would not be increased by his being subject to an ICO, but rather his risk of re-offending might be increased by his being incarcerated and mixing with those who have not been as fortunate as he and who might seek to use him, or who might cause the destabilisation of the rehabilitation that he has so far undertaken successfully.
The offender has, as I have pointed out, served 36 days in custody. In [61] of Mandranis, Simpson AJA said this: "There is, in my opinion, a solution to this problem. It involves a degree of departure from the Zamagias three-step process. Provided that the appropriate term of the sentence is determined before consideration is given to an ICO, it would, if an ICO is found to be appropriate, be acceptable for that term to be adjusted by the deduction of the period equivalent to the term of pre-sentence custody, so that the ICO commences on the day it is made (in compliance with s 71) and is co-extensive with the term of imprisonment (as required by s 70). The sentence actually recorded and imposed would be less (by the length of the pre-sentence custody) than the sentence found to be appropriate to meet the purpose of sentencing." At [66] N Adams J, in the same case, said this: "The process laid down by Howie J in R v Zamagias [2002] NSWCCA 17 is still the proper approach to take when imposing an ICO in cases where there has been no pre-sentence custody. It is only in cases where the statutory requirement in s 24(2) and 47(2) of the Sentencing Procedure Act cannot be otherwise met because of ss 70 and 71 of the Sentencing Procedure Act that the alternative approach proposed by Simpson AJA at [61] is to be taken."
Accordingly the ICO will run from today for a period of three years less 36 days. I would be pleased if the solicitors would work out when the ICO concludes, that is by deducting 36 days from three years hence.
Allen Jin, of the two charges to which you have pleaded guilty you are convicted. I sentence you to imprisonment for a term of two years and 330 days, commencing today 6 October 2021, and expiring on 30 August 2024, to be served by way of Intensive Correction in the community. The terms of the order are: 1. You must not commit any offence; 2. You must submit to supervision by a Community Corrections Officer; 3. You must complete community service work for 500 hours; 4. You must participate in rehabilitation/treatment program as directed by Community Corrections and continue treatment with Ms Daniela Stojanova to prevent relapse to illicit drug use and to continue treatment prescribed for you by Dr Charles Chan; and 5. You must abstain from both alcohol and drugs. You are to report to the Community Corrections Office at Hornsby by telephone within seven days.
In passing that sentence I have taken into account the matters on the Form 1.
The sentence is an aggregate sentence. For sequence 5, the offence against s 25(2) of the Drug (Misuse and Trafficking) Act 1985, and taking into account the matters on the Form 1, the head sentence is two years and seven months, and the non-parole period would be 18 months. For the offence known as sequence 6, that contrary to s 25(1), the head sentence was 18 months.
Any other orders sought? CHAMAS: No, your Honour. SIMONS: No, thank you, your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2022

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)