R v Lin

District Court of NSW|2021-09-17

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following offences: Sequence 1 - ongoing supply of prohibited drugs (methylamphetamine) pursuant to s 25A(1) of the Drug Misuse & Trafficking Act 1985 ("DMTA"). The maximum penalty prescribed is 3,500 penalty units or imprisonment for 20 years, or both. There is no standard non-parole period. Sequence 5 - assist in conducting a drug premises pursuant to s 36Z(1)(a) of the DMTA. This is a related offence pursuant to s 166 of the Criminal Procedure Act 1986. The maximum penalty prescribed is 50 penalty units or imprisonment for 12 months, or both.
The offending in sequence 1 took place between 2 May 2020 and 31 May 2020. The offender was arrested on 22 June 2020 and has been in custody since that date.
The offender was on parole at the time of the offence. That parole was revoked on 8 July 2021 and the offender served the balance of his parole from 22 June 2020 until 22 July 2020.

The sentence hearing

The offender's evidence

Exhibit 1 was a report from Ms K North dated 8 September 2021. Ms North is a psychologist who assessed the offender during a two hour AVL interview on 21 July 2020. Ms North noted a long history of drug use and difficulties obtaining stable employment, which led to the offender to his involvement in the index offences. He identified his involvement as stemming from his need to repay a drug debt. He had been on parole for four months at the time of his arrest and he had continued to use drugs in both gaol and in the community, leading up to his arrest.
Ms North recorded a family history. The offender was born in China as an only child and his parents separated when he was young. He relocated to New Zealand at the age of two years with his mother and moved to Australia at age seven. At age 11, he moved to China to live with his father from whom he suffered physical abuse, including being slapped, whipped and tied up. The offender reported this "discipline" was an attempt to motivate him to "study harder". In addition, the offender reported being sexually abused by an uncle whilst living in China on two separate occasions involving both oral sex and anal penetration. He expressed feelings of shame relating to these incidents, which he never reported to family members or authorities.
The offender returned to Australia and continued his education from Year 8 until Year 12, but did not complete his HSC. He described regular truancy and poor attention throughout high school, in addition to regular involvement in fights. After leaving school, he worked in fast food restaurants and a supermarket, but was fired from these positions due to disobedience.
The offender commenced using cannabis at 15 and heroin from age 17. He began using methylamphetamines from the age of 19 whilst in custody and the use of cocaine from the age of 20. As a teenager, he also engaged in binge drinking behaviour.
Ms North took a history of the offender experiencing symptoms of anxiety and depression since adolescence. He described self-esteem issues, a generally lowered mood, poor frustration tolerance, difficulties focusing, overthinking, feelings of worthlessness and suicidal ideation since the age of 19 years. He also reported an attempted suicide on one occasion when he was 22 years of age. Ms North opined that his symptoms of anxiety and depression were related to his past trauma and represent symptoms of post-traumatic stress.
Upon assessment, he was placed in a severe range for symptoms of anxiety and depression. Ms North opined that he met the diagnostic criteria for Stimulant Use Disorder, Moderate, and that he would satisfy the criteria for Post-Traumatic Stress Disorder. His depressive symptoms indicated an additional diagnosis of Major Depressive Disorder, Recurrent Episode, Unspecified. Ms North made a number of treatment recommendations for his anxiety, depression and substance abuse. It was recommended that he be supervised upon his release from custody.
Exhibit 2 was a letter from the offender's mother in which she took responsibility for not paying enough attention to his childhood development. Mrs Zhang corroborated the changes in the offender when he returned from China after three years living with his father. She had supported him whilst in prison and had been in regular contact with him. He had expressed a desire to go to university following his release from custody and she would support him. She opined that he was now a better person.
Exhibit 3 was a letter of apology from the offender, who stated that he was deeply ashamed for his offending and took full responsibility for it. Whilst in custody, he had reflected on his life and the wrong path that he had taken. He had completed multiple educational courses in custody and intended to study information technology at university when released from prison. He expressed a desire to become a valuable member of society. He had also witnessed some traumatic events in custody which had made him fear for his life. He had also seen how prominent drugs are and the effects drugs have on people. He now understood how harmful drugs are, not just for users but for the community as well. He was sincerely sorry for the pain he had caused to his family, friends and society, and took full responsibility for his actions.
Exhibit 4 were three executive summaries from the Bugmy Bar Book project, relating to child sexual abuse, childhood exposure to domestic and family violence and low socioeconomic status.

The Crown submissions

The Crown relied on a detailed written outline of submissions in which it set out well-established general principles in sentencing for drug supply offences.
In assessing the objective seriousness of the offending, the court would take into account here that the total amount of methylamphetamine supplied was 17.5 grams, which clearly exceeded the indictable quantity (5 grams) but was significantly less than the commercial quantity prescribed of 250 grams. Relevant factors affecting the assessment of objective seriousness were the role of the offender and the level of his participation in the offence, the quantity and purity of the prohibited drugs and other factors such as the number of occasions on which the drug was supplied and the planning involved, referring to McLean v R [2020] NSWCCA 344 at [50].
The Crown submitted that it was important not to assess the objective seriousness solely by the selection of a label to characterise the offender's role. Rather, what was required was a consideration of the involvement of the offender in the steps taken to effect the drug supply offences. Section 25A of the DMTA was directed to repetition, system and organisation, namely, the business operation of supply prohibited drugs - referring to R v Giang [2005] NSWCCA 387 at [18]-[19].
Notwithstanding that others played more significant roles in the hierarchy, the offender nevertheless played an important role in the drug supply chain. The Crown relied on the following four factors. First, there were four individual instances of supply as outlined above. The total quantity of 17.5 grams of methylamphetamine resulted in an overall financial reward of $3940. Whilst relatively small amounts were involved, they were not insignificant and the offender's activities displayed a degree of systematic conduct.
Secondly, a further measure of the extent of the offender's involvement is indicated by reference to the related offence of assisting in conduct of drug premises.
Thirdly, the facts disclose that the offender was in frequent contact with Li concerning the supply of drugs. They discussed stock levels of drugs and prices, suggesting that the offender's role was integral to the success of the business. This was also demonstrated by the fact that on occasions the offender had direct contact with customers, apart from the four transactions subject of the offence.
Fourth, code words were used as a means of avoiding detection. Those involved, including the offender, were concerned to avoid detection or leave evidence that would implicate them.
Having regard to all of the above factors, the Crown submitted that the offending was approaching but slightly below the mid-range of objective seriousness for an offence pursuant to s 25A.
The Crown submitted an aggravating factor to be taken into account was that the offender was on parole at the time of the offending, pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
Whilst there was a degree of planning involved and the possibility of a further aggravating factor of financial gain, these were both inherent characteristics of the offending and an element thereof, therefore care should be taken to avoid double counting in those respects.
The Crown submitted that the offender's criminal history demonstrated that the offending was not an uncharacteristic or isolated event, and that history would not entitle him to any leniency in sentencing.
The Crown conceded the offender had entered his pleas of guilty at the earliest opportunity and was entitled to a 25% utilitarian discount on sentence.
The Crown accepted there was some demonstration of remorse through the offender's plea of guilty. The offender's prospects of rehabilitation were closely linked to his ability to abstain from illicit drugs. To his credit, the offender had expressed motivation to engage in treatment to address his substance abuse issues and to avoid relapse.
The Crown noted that self-induced intoxication of an offender is not to be taken into account as a mitigating factor pursuant to s 21A(5AA) of the CSPA.
The Crown accepted that the offender had faced challenges and difficulties earlier in his life, however, the ongoing nature of the offences and the planning associated with them did not provide a sufficient basis for attributing significant weight to the principles relied on in Bugmy v The Queen (2013) 249 CLR 171; [2013] HCA 37.
The Crown noted the offender had been in custody and bail refused since his arrest on 20 June 2020. One month of that time was referable to his balance of parole which expired on 22 July 2020.
The Crown submitted that the threshold in s 5 of the CSPA had been crossed and no sentence other than full-time imprisonment was appropriate. In his oral submissions, the Crown rehearsed his submission that the offender's involvement in this offending stemmed from his need to pay a drug debt to Li. It was not an isolated incident, given the ongoing nature of the offending. It was also clear from the agreed facts that he had frequent interactions with Li during the period of the offending.
It was submitted that the Bugmy factors referred to above played a role in sentence, but did not have "significant magnetic pull" given the nature of the offences. The Crown also conceded that the importance of both general and specific deterrence in sentencing was limited somewhat on the basis of the opinions expressed by Dr North. The symptoms suffered by the offender also made his custody more onerous than the general prison population.

The offender's submissions

The solicitor advocate on behalf of the offender also relied on a detailed and thorough written outline of submissions. It was accepted that the agreed facts revealed a degree of organisation on the part of Li, however, it was submitted that it would be a mistake to conflate the sophistication of that organisation with the offender's role, relying on Kay v R [2019] NSWCCA 275 at [57].
It was submitted that the role of the offender was clearly subordinate to that of Li. He was employed by Li working at the reception of her brothel. He made the drug sales on her behalf and all of the supplies were conducted at her direction. Also, Li exerted a significant degree of control over the offender by virtue of their hierarchical relationship as well as the drug debt owed by the offender to Li. The agreed facts outlined demonstrated a real degree of coercion on Li's part. Whilst this did not rise to the level of non-exculpatory duress, it was still relevant in the assessment of the offender's moral culpability.
It was conceded the total quantity of methylamphetamine supplied was 17.5 grams and the total revenue derived from the four sales was $3940. There was, however no evidence that the offender derived a direct monetary benefit from those sales.
It was further submitted that the two offences for which the offender is to be sentenced entailed a significant overlap in criminality. As such, there should be a significant degree of concurrency in sentence.
The offender's subjective case is based on the history outlined in the report of Ms North (Ex 1) and summarised above. The offender relied on the opinion of Ms North that his symptoms of anxiety and depression were related to his past trauma and that he used drugs to manage negative emotions consistent with avoidant behaviours, characteristic of post-traumatic stress.
Under the hearing "Mental health" the offender submitted that the diagnostic criteria identified by Ms North meant that the offender's mental disorders rendered him an inappropriate vehicle for general deterrence, that his time in custody will inevitably be more onerous and will moderate the significance of specific deterrence in sentencing, relying on DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at 177.
Under the heading "Moral culpability" the offender referred to the High Court's decision in Bugmy v The Queen (supra) at [40]-[43] and submitted that profound deprivation suffered by an offender has the effect of reducing their moral culpability. The offender referred to Hoskins v R [2021] NSWCCA 169 where Brereton JA said at [57]: "There is no magic in the word "profound", and it is not necessary to characterise an offender's childhood as one of "profound deprivation" before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending."
Notwithstanding that this offending is a drug supply matter, it was submitted that the offender's introduction and continued involvement in drugs, both as a user and ultimately as a supplier, was inextricably linked to his early childhood trauma and social disadvantage. Thus, the Bugmy (supra) principle operated to reduce his moral culpability.
It was submitted the offender was entitled to a 25% utilitarian discount on sentence for his early plea of guilty and that he was genuinely remorseful for his offending conduct.
It was further submitted that in the context of the current COVID-19 pandemic, conditions of incarceration were onerous and should be taken into account on sentence. It was submitted that the pandemic had "wreaked havoc" on correctional facilities in NSW in recent times.
The offender submitted that a finding of special circumstances should be made given his mental health issues, his need for drug and relapse prevention rehabilitation and the need for a longer period of supervision to address his multitude of issues.
In his oral submissions on behalf of the offender, the offender's solicitor advocate rehearsed the subjective factors referred to above, including his long history of substance abuse and his exposure at an early age to domestic violence and sexual abuse. He acknowledged the poisonous effects of prohibited drugs on the community. It was submitted that taking into account the objective seriousness of the offending and the subjective features here, a non-parole period close to the time already served would be appropriate.
In respect of sequence 5, it was submitted the s 5 threshold had not been crossed.
The solicitor advocate rehearsed his written submissions in respect of the objective seriousness of the offending. In respect of sequence 1, there were four supplies made involving not large amounts. There were two critical factors to take into account. First, it was an inescapable conclusion that the offender was at the bottom of the hierarchy and was acting in a manner that was close to being characterised as non-exculpatory duress. Secondly, he had a strong addiction to prohibited drugs from an early age. This should be taken into account as a subjective circumstance.
It was submitted there was a direct connection between the offender's addiction and his offending conduct because of his need to pay off the drug debt.
The solicitor advocate rehearsed his submissions relating to the offender's subjective case. Upon his return from China, the history of diminished behaviour and academic performance was corroborated by his mother's evidence.
Notwithstanding his underlying issues, his long history of addiction and his failure to rehabilitate upon release from custody on a previous occasion, it was submitted that the offender has reasonable prospects of rehabilitation. He now has a desire to forge a better future, has the support of his mother and has insight into his offending. The court would accept that his expression of remorse in his letter and the onerous conditions of his custody, including those imposed during the COVID-19 pandemic, would mean that his non-parole period should be imposed to ensure his release immediately or in the near future.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In assessing the objective seriousness of the offending in sequence 1, I take into account that the offender had a subordinate role to Li in that he was working for her to pay off his drug debt. The drug supply operation itself was well organised, however, the offender's role appeared to be limited to the dissemination of methylamphetamine to customers of Li. I take into account that the motivation for his offending conduct was to pay off his drug debt but I do not accept the submission made on behalf of the offender that there was any degree of coercion involved. I have also taken into account the fact that 17.5 grams of methylamphetamine were supplied on four occasions in return for $3,940. However, other than his employment, I am not satisfied that the offender derived a direct monetary benefit from the sales. The offender's activities, including his interaction with Li, did display a degree of systematic conduct, however in assessing the objective seriousness of the offending, I do not take into account his involvement in the offending in sequence 5.
The use of code words, the presence of drug supply indicia located in the premises during execution of the search warrant and the numerous communications between Li, the offender and others, bespeak of a sophisticated drug supply operation run by Li. However, I accept the submission made on behalf of the offender that his role did not have the same hallmark of sophistication. Rather, it involved supply on four occasions of relatively small quantities of methylamphetamine totalling a quantity of 17.5 grams which was well short of the prescribed commercial quantity of 250 grams. Having regard to all of the circumstances of the offending conduct, I find it was below the mid-range for an offence pursuant to s 25A(1) of the DMTA and towards the middle of the low range for such an offence.
The objective seriousness of sequence 5, assist in conducting a drug premises pursuant to s 36Z(1)(a) of the DMTA, must be assessed having regard to the contribution of the offender to the drug operation being conducted on those premises. It fell toward the lower end of the range for an offence pursuant to s 36Z(1)(a) of the DMTA.
It was an aggravating factor that the offending occurred whilst the offender was on parole. The offender had been released on parole on 22 February 2020 and the offending occurred within three months of his release to parole. His parole was revoked on 8 July 2020 and was backdated to commence on 22 January 2020 and expired on 22 July 2020. The offender was therefore on conditional liberty at the time the offending in both sequences occurred.
I have also had regard to the offender's criminal history. On two occasions, he has been sentenced to imprisonment for serious offences prior to this offending. That history disentitles him to any leniency in sentencing here. It also bespeaks a complete failure to rehabilitate following those offences.
The offender entered an early plea of guilty and is therefore entitled to a 25% utilitarian discount on sentence. His plea of guilty is also demonstrative of some remorse, and I accept his expression of remorse and contrition in Exhibit 3.
I note the maximum penalty prescribed for sequence 1 of 3,500 penalty units or imprisonment for 20 years or both, and the maximum penalty for sequence 5 of 50 penalty units or imprisonment for 12 months or both. The maximum penalties are guideposts in the sentencing process. Further, the maximum penalty prescribed for sequence 1 indicates the seriousness with which Parliament considers offences of ongoing supply of prohibited drugs.
To the extent that the offender was addicted to drugs at the time of the offending, pursuant to s 21A(5AA) of the CSPA, self-induced intoxication of the offender at the time of the offending is not to be taken into account as a mitigating factor. The history of the offender's drug abuse from an early age does however provide some background explanation for his drug debt to Li, and is relevant in assessing his moral culpability for his offending as set out below.
The offender was born on 21 June 1993 and was 27 years of age at the time of his arrest. He is now 28. Whilst the self-reporting of matters to psychologists which are not supported by sworn evidence must be treated with much circumspection, I accept that the offender was raised by his mother in straitened financial circumstances from an early age and that when he returned after living with his father for three years in China, his behaviour and school performance deteriorated. I also accept that from an early age whilst in China, he was exposed to corporal punishment by his father and was sexually assaulted by a relative. The Crown accepts that whilst these are factors that have a role to play in sentencing the offender, given the manner in which the evidence was adduced, it could not amount to profound deprivation as set out in Bugmy v The Queen. However, in accordance with Brereton JA's remarks in Hoskins v R (supra) at [49], notwithstanding that the offender was involved in drug supply matters, the social disadvantages he has experienced, together with his early exposure to drug abuse do operate to reduce his moral culpability for the offending given his role and low position in the hierarchy of the drug supply operation.
Any assessment of the offender's prospects of successful rehabilitation must be guarded, given the lack of intervention to date in respect of his drug addictions and his earlier failures to rehabilitate. Similarly, his risk of reoffending is entirely dependent upon his successful rehabilitation and relapse prevention.
I take into account his desire to lead a better life in the future and to embark upon tertiary education. He also has the support of his mother which will hopefully assist in his productive return to the community.
I take into account the onerous conditions for those in custody caused by the COVID-19 pandemic. It is well established that this is a relevant matter on sentencing, having regard to the measures that Corrective Services have taken to protect the safety of the whole of the prison population, resulting in considerable hardship for those in custody. There is restricted access to work opportunities, training and education programs as well as mental health services. The conditions also include a restriction on personal visits with loved ones as well as long periods of lockdown and isolation. The impact on the mental health of inmates has also been well documented - see DPP (Cth) v Saadieh [2021] NSWSC 1186 per Hamill J at [48].
I am satisfied that the threshold contained in s 5 of the CSPA in respect of sequence 1 has been crossed, and no sentence other than a term of imprisonment is appropriate in all of the circumstances. I am not so satisfied in respect of the offending in sequence 5.
I also find special circumstances pursuant to s 44(2) of the CSPA on the basis that the offender will require an extended period of supervision to assist with his drug and alcohol rehabilitation, and eventually finding employment in the community.
I intend to sentence the offender, having regard to the objective seriousness of the offending, the aggravating and subjective factors outlined above, and taking into account a 25% utilitarian discount on sentence, to a term of imprisonment of two years and six months to date from 22 July 2020. Having found special circumstances, I intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of one year and three months to commence on 22 July 2020 and to expire on 21 October 2021.
In respect of sequence 5, I intend to impose a fine of $300.

Orders

I hereby order as follows: 1. You are convicted of the offence in sequence 1, ongoing supply of prohibited drugs (methylamphetamine), pursuant to s 25A(1) of the Drug Misuse & Trafficking Act 1985. 2. I sentence you to a non-parole period of one year and three months to commence on 22 July 2020 and to terminate on 21 October 2021. 3. The balance of the term will be a period of one year and three months commencing on 22 October 2021 and expiring on 21 January 2023. 4. You are convicted of the offence in sequence 5, assist in conducting a drug premises, pursuant to s 36Z(1)(a) of the Drug Misuse & Trafficking Act 1985. There will be a fine of $300 imposed in respect of that offence.

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: 30 September 2021

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