HIS HONOUR: Charged under the name Peter Yim Lin the prisoner, who is otherwise known as Yimeng Lin, appears today for sentence in relation to an offence to which he pleaded guilty before me in the District Court on the presentation of an indictment by the Crown alleging against him that he, on the 18th day of November 2014 at Pyrmont in the State of New South Wales, did supply an amount of a prohibited drug, namely, 999.67 grams of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. This offence carries a maximum penalty of 20 years imprisonment and/or a pecuniary penalty of 3,500 penalty units (pursuant to the operation of s 25 (2) of the Drug Misuse and Trafficking Act 1985). It also has a standard-non parole period of ten years.
The prisoner has been in custody, as I understand it, since 13 May 2015. On that occasion he was arrested in relation to another matter, in respect of which he was dealt with by His Honour Judge Townsden on 1 July 2016, as I understand, at the Parramatta District Court. The offence with which I am concerned pre-dates the offence for which he was arrested on 13 May 2015 by approximately six months, and in sentencing the prisoner I bear in mind that the criminality reflected in the judgment of his Honour of 1 July 2016 post dates the circumstances of the offence with which I am concerned.
In relation to this matter the prisoner was to be arraigned for trial by the Crown on the charge before the Court, but before any trial could commence a voir dire examination was conducted in relation to the admissibility of evidence in related matters. That proceeding took a number of days, not a great many number of days I hasten to say, and after I had made a determination in relation to legal matters ventilated before me the prisoner pleaded guilty on the presentment of the indictment to which I have referred earlier.
In the context of the submissions made by learned Senior Counsel for the prisoner and the submissions made by the Crown I propose to provide in this matter sentencing the prisoner a discount to represent the utilitarian benefit of the plea of guilty in accordance with the judgment of the Court of Criminal Appeal in 1999 of Thomson and Houlton. The discount is 10% upon the otherwise appropriate sentence. It was suggested in the course of the submissions that the discount may be greater than 10%. However, in my view, in the context of what the Court of Criminal Appeal spoke of in terms of the utilitarian benefit of the plea, the facts of the matter are the prisoner was committed for trial, the matter came before a judge of the District Court, the plea of guilty was entered after the matter had been listed for trial and some days were taken up dealing, appropriately, with legal issues ventilated. I recognise the plea of guilty as evidence of contrition on the part of the prisoner. However, in terms of measuring the utilitarian benefit of the plea of guilty, it might be said in other circumstances I could order a discount less than that proposed. In the circumstances I believe I should give the prisoner the benefit of the discount of 10% to which I have referred.
R v Lin [2018] NSWDC 286 | Case summary | Zoe
In respect of this matter the facts are very short and they are agreed facts between the Crown and the defence. Although in the course of the voir dire examination I was presented with a body of evidence relating to the transaction that gives rise to the charge, including closed-circuit television footage of the presence of the prisoner within premises where the transaction occurred. Police were investigating matters relating to the distribution of prohibited drugs by, what is described as a "Sydney based syndicate". Two persons were identified as being associated with this syndicate, Giac Van Nguyen, who was born in 1973, and The Kuong Pham, who was born on 10 June 1981. These two men were identified, in fact, as distributors, in significant amounts it would seem, of methylamphetamine. There were other people who were identified in the course of this investigation, including this prisoner, who was born 28 December 1968.
Nguyen, from Tuesday 18 November 2014, was subject to monitoring, both electronically and physically. On 18 November 2014 the prisoner was observed carrying a plastic bag containing a plastic container, in his right hand. He met Nguyen in the valet parking area of the Star Hotel at Pyrmont attached I would assume to the Casino. Various observations were made about the clothing worn by Lin and the plastic bag. It carried the prohibited drug, the subject of the charge to which the prisoner has pleaded guilty. Nguyen and Lin at 9.05pm took an elevator up to a hotel room, where unbeknown to them they were meeting with an undercover police officer. Inside the room Nguyen and Lin supplied the subject matter of the charge, 999.67 grams of methylamphetamine, to the undercover officer for $150,000. Nguyen took $40,000 for his part in the transaction, while the prisoner took the remaining $110,000. There has been no evidence produced at this Court as to what happened to the $110,000. It is not suggested by the Crown that this prisoner kept that money, although there is no doubt that the prisoner participated in the commission of this offence for some financial gain or fee. The significance of the prisoner being given the money and being able to take it away from the transaction was that the prisoner obviously was entrusted to safely care for a very substantial sum of cash. The transaction between the undercover officer and the two gentlemen was primarily conducted, at least on behalf of Lin and Nguyen, by Nguyen himself. The man Nguyen was observed leaving the hotel and getting into a motor vehicle driven by Pham, to whom I earlier referred. Mr Lin left the area and was not sighted again, at least, I would assume, until arrested in May in relation to the other matter.
Significantly, for the purposes of sentencing this prisoner, para 8 of the agreed statement of facts says:
"The Crown cannot prove that Lin's role in the exercise exceeded that of a delivery man having carried both drugs and money in the transaction conducted between Nguyen and (the undercover police officer)"
In relation to the objective facts I point out apart from the statement of facts there is no other evidence before the Court. The prisoner has not given evidence in the proceedings although he does not get penalised or can be criticised for that.
In respect of the objective offending I am required to have regard of course, in the context of the provisions relating to standard non-parole periods, to the operation of s 54B and s 54A of the Crimes (Sentencing Procedure) Act 1999 (hereinafter to be referred to as 'the Act'). For the purposes of sentencing any offender the standard non-parole period represents the non-parole period for an offence in the Table to the Division (of the Act) taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of objective seriousness. Section 54B (2) provides that the standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.
Those legislative provisions of course follow upon the High Court judgment in Muldrock from 2011. Thus the standard non-parole period provides a form of 'guidepost' for the appropriate fixing of at least the non-parole period in relation to a particular matter.
I have concluded in this particular matter notwithstanding that the quantity of the drug itself is very close to the threshold for supplying a large commercial quantity, but having regard to the role of the prisoner, I should conclude that the objective seriousness of the offending is below the middle range of objective seriousness. Clearly it is not an offence at the lowest level having regard to, firstly, the quantity of the drug and the fact that the prisoner was entrusted not so much to deliver the drug, because he was in company with Mr Nguyen, but to deliver the cash that was provided to him of $110,000 to others.
The relevant aggravating factor, if I could call it that, that arises in this matter in my view is the aggravating factor that the offence was an offence that was "part" of "organised criminal activity". It has been said on many occasions by the Court of Criminal Appeal, particularly in the early days of s 21A, by Howie J, that in most drug supply transactions there will be a degree of planning. Thus inherent planning for the purposes of committing the offence cannot be regarded as a "aggravating factor". But I note in the remarks on sentence of her Honour, Traill DCJ, particularly in relation to the person Nguyen, that she concluded the conduct in question, which was of course concerned with a number of offences beyond the matter with which I am now concerned, formed part of organised criminal activity. There can be no doubt that organised criminal activity was involved in this transaction, albeit that the prisoner could be categorised as a "handmaiden" to the commission of the offence, or a handmaiden, if that is the correct expression, to the organisation or 'syndicate', as it is described in the facts, that planned this matter.
I am not of course concluding that the prisoner himself was a member of an "organised crime" gang or group. The relevant aggravating factor under s.21A(1)(n) of the Act does not require such a finding. It does require a finding however beyond reasonable doubt that the offence was "part of organised criminal activity" which this was surely the case.
In relation to these other people to whom I have referred many of the people associated with this "syndicate" have been sentenced by other Judges. A man called Sabah, who does not figure directly in the facts that are before me in relation to this matter, was sentenced by her Honour, Traill DCJ, on 24 November 2017. He was charged, however, with a less serious offence than this prisoner and it was unrelated (directly) criminal activity. He was convicted of knowingly take part in the supply of a prohibited drug not less than an indictable quantity and was sentenced to a total sentence of two years and ten months.
Nguyen was sentenced on the same date by her Honour to a total sentence of ten years with a non-parole period of six years. The matter with which I am concerned in which Nguyen was directly involved appeared in that sentencing matter as a "Form 1" offence. It was a Form 1 offence taken into account in relation to an offence of supply a large commercial quantity of a different type of drug. For that the offender received a sentence of four years. In relation to an offence of supplying just over 2 kilograms of methylamphetamine the offender received a sentence of eight years. Her Honour gave the offender a 25% discount in respect of one count and a 10% discount in relation to the count for which that prisoner received a sentence of eight years. That was the supply methylamphetamine offence.
There were other offenders dealt with related to the syndicate who were not mentioned in the facts with which I am concerned. An offender called Lo was sentenced by his Honour, Delaney ADCJ on 19 October 2016. That offender was sentenced in relation to the supply of a large commercial quantity of the drug methylamphetamine and received a sentence of two years and eight months. That offender received a 25% discount.
An offender called Cheng was sentenced on 21 October 2016 by Delaney ADCJ in relation to exactly the same quantity of methylamphetamine. That offender too was sentenced to two years and eight months imprisonment. Pham, the person to whom I earlier referred, was sentenced by his Honour Delaney ADCJ on 22 November 2016 in respect of an identical count to that for which Mr Nguyen was sentenced, receiving an identical sentence and also in respect of an offence of supplying just over 2 kilograms of methylamphetamine being a large commercial quantity. The accumulation ordered by his Honour, as I understand it, was six months accumulation, rendering a sentence as I would understand it in the order of eight years. Nguyen's accumulation, that is of the eight years sentence upon the four years sentence, was two years as I best calculate it.
In respect of the issue of "parity" it ultimately is the case, in the context of a clear understanding of what parity of sentencing means, that no particular sentence imposed in relation to any particular matter is strictly one that requires consideration of "parity principles". The only offender who was sentenced in relation to the offending with which this prisoner is concerned was Nguyen and the matter was taken into account on a Form 1 and thus its sentencing significance was substantially diminished. That having been said, however, in the context of an understanding that all these offenders were related to one another in relation to connected criminal activity over a number of months that was the subject of investigation by the police, I accept in general terms the submission of learned senior counsel for the prisoner that the sentencing of particularly Lo, Cheng and Sabah to some extent is relevant to the sentencing process. In my view in the context of what was said by learned Senior Counsel, for the prisoner, whilst I cannot accept the sentences provide a ceiling or floor for the appropriate sentence in this particular matter, they do in my view provide at least some guidance to avoid any claim of what is sometimes said in parity circumstances "a justifiable sense of grievance". Although that terminology is, arising out of Lowe v The Queen, (1984) 154 CLR 606 a term that is usually seen in the context of strict parity matters.
Thus, in the sentencing of this offender in relation to this offending, fixing the appropriate sentence has required consideration of other sentences imposed in relation to what I could call generally "related offenders" and has acted as some constraint upon the appropriate sentence that I am to impose. In the context, I hasten to say, of the finding I have made that the offending with which I am concerned, primarily because of the role of the prisoner, is below the middle range of objective seriousness. I make the point in relation to that aspect, as was made in the course of submissions last Friday, that there is no evidence that the prisoner would have known directly the exact quantity of the drug he was supplying. Although the prisoner had taken possession of the substantial sum of money that he did, the facts of the matter are that as a delivery man it would not have been of any significance to him whether he was delivering 300 grams of the relevant drug of 500 grams or some other quantity. It is still a matter of good fortune in one sense that the quantity falls just below that of the quantity required to establish the supply of a 'large commercial quantity' of prohibited drug.
It is to be pointed out in the consideration of the other sentences as I have pointed out already, there were differences in the discounts that were provided by the sentencing judges for the utilitarian benefit of the pleas of guilty. This, if I may at this point, brings me to Judge Townsden's sentencing of the prisoner in respect of the offence that was committed by the prisoner, as I understand it in May of 2015. The prisoner was arrested by the police in possession of a total of 284.42 grams of methylamphetamine. It might be said to be a substantially lesser amount than that with which I am concerned, but is still a commercial quantity.
The learned sentencing judge concluded that the prisoner was, as he was in this matter, a 'delivery man'. He concluded that the prisoner should receive a discount of 25% for the utilitarian benefit of his plea of guilty having been committed for sentence in relation to that matter as I understand it. I also note that his Honour, quite properly, was not informed of the fact that it was alleged that the prisoner had committed a previous supply in relation to a much greater quantity of drugs six months before.
As I have pointed out this prisoner at that point would have been pleading 'not guilty' to that charge and it was of no moment as far as his Honour was concerned. The sentence that his Honour started upon was a sentence of six years and six months. That was reduced to four years and ten months with the discount and his Honour fixed a non-parole period of two years and ten months imprisonment. That sentence whilst not providing particular "guidance" in relation to the sentence I impose does have significant relevance in this matter because of the operation of the consideration of the concept of "totality" of sentencing as well as the issue, to some extent, of "delay".
I was referred in very helpful submissions by Senior Counsel for the prisoner to the decision of Mill v The Queen, (1988) 166 CLR 59. Their Honours in that decision discussed the concept of totality of the sentencing at pp 62 and 63 of the judgment. I need not recite the passages of that judgment as they reflect upon the totality principle but it is clear that in sentencing an offender in relation to a number of offences that are relevantly related in time a number of considerations arise in order to do justice to the case.
We do not have a Texan method of sentencing in Australia where sentences are required to be accumulated in their totality one upon the other leading to preposterous sentences beyond hundreds of years of imprisonment. In fact, the Court of Criminal Appeal in 2016 in the decision of Benjamin Faulkner, set aside a sentence I imposed where I had accumulated a sentence by seven years to give effect to a sentence of 26 years imprisonment to a very young man who had been involved in multiple importations of border controlled drugs. The Court corrected my error to reduce the extent of accumulation from seven years to three years. I do not need to cite the various passages of that judgment. But the observations in that judgment and the observations in Mill v The Queen in their discussion of the totality principle have guided me in the consideration of the extent to which there should be some accumulation.
One of the difficulties with sentencing this offender at this time is that in reality he is being sentenced through no fault of his out of order to the events that are required to be the subject of sentencing orders. In a perfect world the prisoner would appear in relation to both matters to which he has pleaded guilty and then be sentenced accordingly. I raised directly with Mr Smith SC some of the complications as I saw them at that time and I have endeavoured to address that issue in the way in which I have framed the sentence, effectively extending the non-parole period fixed by his Honour Judge Townsden by 12 months.
I should also, if I may, refer to two other judgments in passing. The decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 particularly at [45], in the judgment of the majority and, of course, following upon Pearce the decision of Hammoud [2000] NSWCCA 540, particularly the observations of his Honour Justice Simpson about the application of the totality principle. She said that the question of whether to accumulate sentences for multiple offences has taken on a new dimension, as she described it, after Pearce. A judge is required to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality.
I pause to point out I am not required to fix an appropriate sentence for the matter dealt with by my colleague but she did point out the fact that in accumulating sentences there was a wide discretion for the sentencing judge at play in order to properly give effect to the concept of totality. I make the point, as I have said, that it has its difficulties in circumstances where one is sentencing an offender after the event of another sentence.
In dealing with the sentencing of the prisoner in all the circumstances the matter is not confined solely to the objective circumstances. The prisoner's criminal history has to be taken into account. I have already pointed out he was born in 1968. He came to Australia, as the history he gave to the psychologist reveals, in the late 1980s, I would imagine either just before or just after what has been described as the Tiananmen Square massacre. He first started offending in Victoria in 1998 approximately nine years after his arrival in Australia. He was convicted of offences of providing prostitution services without appropriate authority, unlawful possession of ammunition and possession of what is called a "regulated weapon". All these offences committed in 1998. He received modest penalties including fines.
In New South Wales his convictions start in 2002 and most of those matters involve appearances in the Local Court, either in relation to driving offences including driving with the middle range PCA, common assault for which he received a community service order, having goods in personal custody reasonably suspected of being stolen or unlawfully obtained, for which he received a three-year bond and driving whilst disqualified, amongst other offences. He had no prior convictions at the time he committed the offence with which I am concerned for supplying prohibited drugs. Although his history to the psychologist reveals that he himself has been a drug user since his late 30s or his early 40s.
I have earlier pointed out that his conviction at the Parramatta District Court on 1 July 2016 is not directly relevant to this sentencing exercise, occurring after the offence with which I am concerned. Although it is a matter relevant in one sense, although it is now of some age, to the issue of the assessment of his prospects of rehabilitation. That having been said, the subsequent offence of course does not play any role in the assessment of the objective criminality, or reflect adversely upon the findings of the psychologist to which I have referred.
I have had regard to that report. It would appear to be the same report that was provided to his Honour Judge Townsend, and essentially I concur with the very succinct analysis by his Honour of the report. I just point out, additionally to what I have already said, that the prisoner in Australia has been married twice. As I understand his history he has three children from his relationships. At the time of the writing of the report in April 2016 he was still in a relationship with his second wife. I pointed out that he has given a history of a user of methylamphetamine or methamphetamine since his early 40s and in this respect the prisoner claims that his involvement in his offending is related to obtaining money for, amongst other things, his drug dependency.
So far as assessing the issue of his mental state, at the time of the offending that I am concerned with, the report is of little assistance. It does not directly address that matter. It does state that the prisoner has no history of mental illness, no history of treatment for mental illness. At the time of observation or clinical examination there was no evidence of delusions, no presence of any observable mental disability affecting cognitive capacity, although he did give an account of symptoms of "depressed mood". This is described in the report as "depressed mood with impaired reasoning ability/judgment during 2015". I point out, of course, that the offending with which I am concerned occurred in late 2014. But it would seem to me, with respect, that this 'depressed mood', as it is described, presumably as I would understand it related to the prisoner's drug usage, would have existed also at the time of the offending.
The "diagnosis", so far as a psychologist can diagnose these matters with the limited testing that was undertaken, was that the prisoner had "an adjustment disorder with mixed anxiety and depressed mood and an amphetamine-type substance SUU disorder of "mild severity in early remission" in a controlled environment, that is, as at April 2016. It was not specifically submitted to me that I should give less weight to general deterrence or greater weight to personal deterrence or lesser weight to personal deterrence as a consequence of the findings of the psychologist. As I said, there is no direct evidence in the report that the prisoner was suffering from a mental disability or illness or disorder that affected his capacity to reason in relation to the offending with which I am concerned.
In this regard, thus, a number of aspects of the matter discussed by McClellan CJ at CL in DPP v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178] do not arise for consideration. However his counsel submitted, and the psychologist concluded in April 2016, that his condition as it presented to the psychologist would affect the circumstances of his imprisonment, in conjunction with his lack of English- speaking ability which is still limited notwithstanding having been in Australia now, as I would best calculate it, for almost 30 years.
That being so, I am prepared to accept that the circumstances of his custody may be more onerous for him, having regard to the prisoner's presentation at the time of that assessment and his language difficulties. It is interesting to note that the psychologist opined:
"As Mr Lin's disorders are unlikely to be considered by Corrective Services as a criminogenic need, treatment of his depression and trauma will not be a priority within the custodial system. In a non-custodial setting, Mr Lin would be more likely to have better access to appropriate psychological services."
That analysis of a lack of connection to "criminogenic need" is consistent with the analysis that I make of the conclusions of the psychologist. But it also reflects the fact that such assistance as is suggested by the psychologist is not available in custody or will not be regarded in custody as a priority for this particular prisoner.
In relation to the prisoner's personal circumstances I have had regard to the history that the prisoner has given to the Community Corrections Service which prepared a report on 5 February 2018. It noted, amongst other things, that the prisoner planned to reunite with his wife and family in Sydney when eventually released from custody, acknowledged the effect and impact of his offending behaviour upon himself and his family, identified his drug abuse as "problematic" and stated that he had been drug-free since incarceration.
The report from the Community Corrections Service reflects upon matters of history that I have already summarised and were also summarise by his Honour when sentencing the prisoner in 2016. The report contains a history from the prisoner consistent with that in the psychologist's report. It notes that the prisoner's involvement in the commission of this offence was "to support his addiction"…"along with making money to supplement and improve his financial situation". It noted his limitations with English and his expressions of regret. He was assessed at a "low risk of reoffending" on the basis of the testing that was undertaken by the Department's officers, which is a matter I have taken into account in the prisoner's favour.
In that context, by reference to s 21A of the Act, I am prepared to conclude in favour of the prisoner on balance that he has expressed relevant contrition for his involvement in this matter, and I am prepared to accept, in the context of the assessment of the Community Corrections Service, and the existence of some support for him in the community, that he would have good prospects of rehabilitation.
The relevant word in the provision of the Act at s 21A(3)(i) is "remorse". That provision in my mind is satisfied in this matter. His plea of guilty is a relevant "mitigating factor", however he receives a discreet discount for that representing the utilitarian benefit of the plea of guilty.
Of course his record of prior offences, whilst not serious in one sense, is longstanding and does not entitle him to any particular leniency. I could not conclude that he did not have a significant record of previous convictions and I could not conclude that he was a person of good character. I could not conclude ultimately, although it might seem at odds with what I have earlier said, "that he is quite unlikely to reoffend". However with professional assistance he can be guided in that respect and as I said I am prepared to find in his favour that he has good prospects of rehabilitation.
Learned Senior Counsel for the prisoner provided very helpful written submissions to me supplemented by oral submissions a number of which I have already dealt with in the course of the fact finding I have made to this point.
I have dealt with the issue of the assessment of his criminality, I have dealt with the weight and particular findings of the psychological report and the issue of the discount to be imposed or granted for the utilitarian benefit of the plea of guilty.
In respect of the helpful submissions of learned Senior Counsel for the prisoner there are just two outstanding matters that provide direct addressing. One relates to an aspect of the matter that was raised by learned Senior Counsel for the prisoner. That is arising out of Mill a consideration of the disadvantage for the prisoner in being sentenced for this matter after he had been sentenced in respect of a later offence. Whilst delay was not specifically adverted here, it is an aspect of Mill v The Queen relating to delay which overlaps with what was put on behalf of the prisoner. In Mill v The Queen the High Court adopted what Chief Justice Street had said in the 1979 judgment of Todd (which for some reason was not reported until 1982 at (1982) NSWLR 517). I appreciate Todd and Mill were cases concerned with the unfairness of interstate sentences occurring at different times given the different jurisdictions concerned. In Todd's case it was an offender who committed crimes in New South Wales and Queensland, was sentenced in Queensland, but then returned to New South Wales after serving some years in a Queensland prison. The particular passage in Street CJ's judgment adopted by the High Court reflected upon the fact that where one is dealing with a "stale crime", which this is not, that is cases that cannot be dealt with at the same time, the exercise:
"calls for a considerable measure of understanding and flexibility of approach".
That is what I have tried to achieve in this matter by assessing the extent of accumulation or partial accumulation and particularly in fixing the non-parole period. The learned Crown Prosecutor did not demur greatly from the helpful submissions of Mr Smith. He noted the factual issues to which I have referred. The learned Crown Prosecutor was mistaken concerning the findings of the prisoner's role in relation to the earlier sentencing matter, but ultimately the earlier sentencing matter was and is a relevant matter in this matter because I am required to try and assess the totality of criminality. It does not provide any parity guidance because it does involve different offending.
It was the case, as I understood it in support of what Mr Smith had earlier said, that as the Crown put it, there was a requirement in this matter to have some regard to the sentences imposed upon people involved in the same series of transactions connected with one another, the people to whom I have earlier referred, to give the prisoner "equal justice". The term "equal justice" has been described by Justice Rothman in the judgment of Jimmy from 2010 as an "artefact" of "Aristotelian principles of equality", Equal Justice is in fact characteristic of parity in sentencing. "Aristotelian principles of equality" demand that an "alike be treated alike and the unalike be treated unalike to the extent of their unalikeness based upon reasonable and rational grounds". This was in fact precisely what Justices Dawson and Gaudron were talking about in the late 1990's when they gave their joint judgment in the High Court judgment of Postiglione to which Justice Rothman in Jimmy made specific reference and I agree with the learned Crown's arguments that "equal justice" demands consideration of the other judgments albeit that strict parity principles do not apply.
In the circumstances of the matter, thus, the appropriate sentence for the offending having regard to the role of the prisoner is, as I have said earlier, constrained to some extent. That constraint is further amplified I hasten to say by giving, hopefully, proper effect to the totality principle. As it would appear from what I have said up until the present time, I have had regard to all the helpful submissions of the Crown and the defence on that matter.
The only matter I should further refer to in the helpful submissions of the learned Senior Counsel for the prisoner is of course reference to the judgment of the Court of Criminal Appeal in the Queen v Parente [2017] NSWCCA 284 particularly at [107] - [115]. Very helpfully, learned Senior Counsel for the prisoner has set out the passages of that judgment at pages 2 - 4 of his written submissions, including their Honours consideration of Justice Simpson's judgment in Robertson. Although Robertson is primarily concerned with addressing the vexed issue of determining what should be done when a person is found to be 'substantially involved in drug trafficking'.
The fine measure of that matter does not directly arise in this matter. It is quite clear that this prisoner was, as a courier or runner or delivery man, whichever way one describes it, 'substantially' involved in drug trafficking and of course no other penalty than the penalty of imprisonment can be imposed notwithstanding the terms of s 5 of the Act. As their Honours pointed out in Parente I am first required to have regard to the purposes of sentencing and that requires consideration of a range of matters including general and personal deterrence and protection of the community from the offender. Although I do not suggest that the prisoner presents a particular danger to the community. I am required to denounce his behaviour, make him accountable and fix adequate punishment. But I am also required some years after he has come into custody to promote his rehabilitation.
I am required, as their Honours point out, to have regard to the maximum penalty, the role of the standard non-parole period in accordance with the legislation and to have regard, of course, to a proper assessment of the objective facts and any other issues that arise, including consideration of what I said to be other sentences concerning offenders involved in related criminal activity. To those matters I have had full regard.
Would you stand up please Mr Lin? In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a non-parole period of two years imprisonment to commence on 13 March 2017 and to expire on 12 March 2019. That sentence extends your existing non-parole period fixed by his Honour Judge Townsden, I hasten to say, by one year. The balance of the sentence for you is two years six months imprisonment, that balance of sentence will expire on 12 September 2021, that finding on my part involves a finding of 'special circumstances'. In my view the special circumstances include the effect of partial accumulation of sentences and fixing an extended period of supervision to assist you to adjust to community living and to receive appropriate direction and assistance and counselling in relation to drug usage and your associates. I have also fixed the relationship of the non-parole period to the balance of sentence to reflect substantially the relationship of the non parole period to the balance of sentence fixed by his Honour, Judge Townsden. Of course I did not try and fix an identical relationship between the non parole period and the balance of sentence.
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Decision last updated: 09 October 2018