Mr S Boland (Counsel for the offender)
File Number(s): 2017/330954
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Judgment
Mr Ng is a 75 year old man who identifies himself as Chinese in origin, born and raised in Parak, Malaysia. He came to Australia in 1963 and until this episode of offending he has never been under police notice, except for a traffic offence in Queensland of driving unlicensed in 1980. He now faces sentence, having pleaded guilty at an early opportunity to a count under s 25 of the Drug Misuse and Trafficking Act 1985, of supply a prohibited drug which carries a maximum penalty of 15 years imprisonment and no standard non-parole period.
His plea of guilty was entered at an early opportunity which justifies a 25% discount for the utilitarian value of the plea in the event of a term of imprisonment being imposed.
The principal count relates to the supply of 249 grams of methylamphetamine between 24 June 2017 and 21 October 2017. There are three matters to be taken into account on a Form 1, including an offence of dealing with $4,395 being suspected proceeds of crime with a a maximum of three years imprisonment; possessing 7.14 grams of cocaine with a maximum of two years imprisonment; and supplying 31.3 grams of methamphetamine between 19 October and 1 November 2017 which also carries a maximum of 15 years imprisonment. In total there were 280 grams of methylamphetamine supplied between 24 June and 1 November 2017. The Form 1 matters will be dealt with in the way suggest by the Chief Justice in Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
Mr Boland, counsel for the offender, pointed to the fact that 250 grams is the threshold for a commercial quantity which may indicate why the agreed facts confined his client's involvement on the principal count to 249 grams in the period that I have mentioned. Police intercepted the offender's mobile phone over the period of the principal offence, that is between 15 June 2017 and 2 November 2017 and the intercepts regularly recorded him supplying methylamphetamine for a financial reward. He regularly sold methylamphetamine to Robert Midalia and Phil H. He also supplied to other customers. He used the code word "tyre" to refer to methylamphetamine; one tyre meant an eight ball or 3.5 grams. He sold eight balls for $650, and single grams for $200. He purchased 3.5 gram quantities from his up line supplier for $500. From the sale of an eight ball he usually kept $150 for himself. From the sale of a gram he kept $60 to $70 as profit. In broad terms over the period of the principal offending he sold methylamphetamine for a gross of about $49,800 and made a net profit of about $17,000. The agreed facts cover the period from the particular supplies to the named and unidentified customers over a period of several months from June 2017 through to October 2017 and it is unnecessary to recite those for the purposes of these remarks.
He was first apprehended by Police on 19 October 2017. Police pulled him over while he was driving. He had $1,755 in cash, a mobile phone, an envelope containing clear, resealable plastic bags, which contained 3.4 and 3.48 grams of methylamphetamine, a total of 6.88 grams. The purity was not tested. These facts form part of sequences 003 and 013 respectively on the Form 1. Surprisingly he was cautioned by the Police. He told police that the envelope contained ice and he said "Me and my friend smoke it" and he agreed that his friend paid him money for the ice. He was not arrested at that time and after that day he stopped using his Wawa mobile phone to contact Phil. He attempted to contact Robert Midalia on 19, 20, 21 October and they met up on 26 October and he supplied him with 1.75 grams of methylamphetamine.
He was then pulled over again on 1 November 2017 in possession of a white mobile Samsung phone. He was arrested. He had $1,700 cash in his pocket, mostly in $50 notes, which are part of the Form 1 matters. He told police he had an eight ball in his pocket. There was also an envelope with the word "Mascot" written on it which contained plastic bags with 3.48 grams of methylamphetamine, which also form part of sequences 003 and 013 on the Form 1.
They told him they were about to execute a search warrant at Caddy's Place, a massage parlour in Ashfield. He told police there was ice in the pantry there and consented to a forensic procedure. A lady called Judy Wong was present at Caddy's Place when the police went there and they located his old mobile phone in the massage area, a bag containing 7.14 grams of cocaine which is the subject of sequence 006 on the Form 1, and then a further nine bags containing 20.6 grams of methylamphetamine, the balance of sequence 013 on the Form 1. There were a number of other plastic bags in a basket in his bedroom and kitchen area and there was $940 in cash underneath a small set of drawers at the reception desk which also forms part of sequence 003 on the Form 1. In total, he had supplied 31 grams of methylamphetamine between 19 October 2017 and 1 November 2017, which is the subject of sequence 013 on the Form 1. In total, he possessed $4,395 in cash reasonably suspected of being the proceeds of drug sales and provides the basis for sequence 033 on the Form 1.
He made a number of admissions to Police. He said he lived at Caddy's Place, and that he had about 10-12 grams of methylamphetamine stored there. He told police where it was. He also said he had cocaine there that he took to sniff sometimes. He said "I'm like a courier, I'm not a big timer." He said that he purchased his drugs from Greg, a Chinese man, he said "Once I get very low like one or two left, one ball … left after ball I do the points you know." He said he had been supplying drugs without getting caught for over a year and a half.
In relation to Phil H, he said he was on his way to a meeting that morning. He gave them Phil's phone number and told them where he lived. He said he had only ever met Phil to supply drugs. He usually took him a ball of ice and charged him $650. He saw Phil every few days and he had supplied Phil with drugs maybe 50 times over the last six months. He had two eight balls ready for Phil when he was pulled over, and he knew that Phil supplied methylamphetamine for construction workers. He also told Police about the other contacts in his phone; AJ was a male nurse who purchased a couple of times a week; a man called Tony Coffey was a photographer who purchased a gram from him every ten to 14 days and he had first supplied him a couple of years ago; and Robert Midalia was a person who lived in Earlwood, a friend of his son and he supplied him in the past, but no money was exchanged; and he also sold two points to Anna Summer every two days.
His personal circumstances are set out in great detail in the report of the psychologist Ms Moodley, although it is not tested and therefore subject to the caution expressed in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 396.It is clearly consistent with a number of other objective or corroborative materials including medical reports and the psychologist, who went to the trouble of having phone consultations with a number of treating general practitioners and with his daughter. So the history is, in my view, a reasonable basis upon which to proceed.
As I said he came to Australia when he was about 18 because he wanted freedom. He worked long and hard for many years. His first wife worked in MI 5 in London. He married her in 1969. He has two sons and two daughters from that union. He owned a number of houses in Australia. He remarried in 2011 and he worked in the restaurant business. He had smoked all his life and was not a drug user. He had been an occasional beer drinker, and a moderate better on football.
His physical health is the subject of particular concern in the submissions by Mr Boland. He had undergone triple bypass heart surgery in 2002 when a defibrillator was installed, and he has reviews every few months with his cardiologist. After his offending he was diagnosed with prostate cancer and underwent chemotherapy and the most recent report from the Chris O'Brien Lifehouse, Camperdown says that he has completed a course of chemotherapy and radiotherapy and at this stage there is no further treatment planned for his prostate cancer, he is on oral medication for symptomatic relief of urinary function and he requires six monthly appointments with the oncologist. He has several other significant medical co-morbidities, namely cardiac, that have a larger impact on his prognosis, including ischemia, cardiomyopathy, congestive cardiac failure and atrial fibrillation.
His mental faculties appear to be in decline and, as the psychologist notes, despite several attempts to undertake an interview it was noted that he struggled with attention, concentration and was repetitive in the information he provided, which was primarily focussed on his ill health, especially his heart condition.
His test performance was in the mildly abnormal range, suggesting a mild decline in the executive function. As to what led him into this offending or as Mr Boland put it "to enter the criminal fray" when one has no background of crime and one is in his 70s, indicates that his behaviour was "weird" and that he was not thinking clearly. It is hard to put a finger on exactly what it was in the history, other than that he divorced his second wife due to severe financial distress in 2017 and he thought that he would be unable to live on his pension of $277 a fortnight. He said he had a limited recollection of the offences, but he agreed with the facts. There is no clear indication as to how he got involved, but somehow he must have come into contact with people who were able to supply drugs and people who were prepared to purchase them from him. He expressed embarrassment and regret for the offending and said that he had learnt the hard way.
His eldest daughter provided a confirmatory history to the psychologist and she said she had noticed further deterioration in his concentration and memory at times. He also was showing signs of intellectual decline by talking about taking the maternal grandmother to visit places in Sydney, but she had been deceased since 2006.
The psychologist spoke to the GP Dr Shun who consults him infrequently for general medical conditions, but noted that he was under the care of an oncologist and a cardiologist and she described his medication regime. She described his presentation over the years as going from overly cheerful and on top of everything, to being sad and depressed, consistent with bipolar disorder, even though not formally diagnosed.
The psychologist diagnoses a mild neurocognitive disorder with behaviour disturbances and his diagnosis of prostate cancer in 2018. The severe side effects from the chemotherapy and the hormone therapy caused him to be severely ill, with significant weight loss, nausea, vomiting, diarrhoea, blood in the urine, oedema in both legs, extreme tiredness, fatigue and difficulty breathing after taking a few steps, poor concentration, attention, memory and decision making. His participation in daily activities is limited and he is unable to function independently and his overall cognitive and physical functioning has declined across time but certainly not to the point of rendering him unfit to plead.
The psychologist concluded by noting that his deteriorating physical and psychological health requires regular access to various specialist services which would be hindered should he receive a custodial sentence, and his prognosis is poor and his risk of recidivism is considered to be low.
As Mr Boland conceded there is no evidence that the medical treatment and reviews that he requires cannot be provided under the auspices of the Justice Health system.
Mr Boland took me to a section of the statistics both pre and post Parente v R [2017] NSWCCA 284, which I take into account as relatively blunt tools but I do acknowledge that they confirm the proposition that a significant proportion of offenders receive other than full-time custody.
There is little in contest on the question of the objective seriousness of the offending. The Crown submits that it is above mid-range, Mr Boland put that it was no higher than mid-range. The factors to be taken into account have been properly identified. As the Crown puts, he adopted the role of a courier on a large number of occasions. Mr Boland pointed to his high exposure to risk and a relatively low position in any drug hierarchy. There was no concealment mechanism for transporting the prohibited drugs such as one often sees, namely secret compartments in his car.
The Crown points to the significant number of supplies and the significant quantity supplied over a number of months. It is clear from the large number of individual supplies, as agreed, that he conducted the substantial and sustained drug supply business, with a regular customer base both identified and unidentified.
The Crown concedes that it was not particularly sophisticated, nor is there any indication that he was a member of any syndicate because he appeared to be operating relatively independently and undertaking his own deliveries or have people attend his residence, but he knew that, at least so far as Phil was concerned, he was facilitating the furtherance of onward supply.
Taking into account those factors and looking at the role of the offender and the level of his participation I accept Mr Boland's submission that this is mid-range of objective seriousness.
There are no aggravating factors identified or apparent. There are a number of mitigating factors to be taken into account, namely that his prospects of reoffending are low, his prospects of rehabilitation are good, he has acknowledged his guilt and expressed remorse and has pleaded guilty.
The parties have acknowledged the way in which the Court recently in R v Fangaloka [2019] NSWCCA 173 and Casella v R [2019] NSWCCA 201 have somewhat qualified what was said by the Court in Parente v R [2017] NSWCCA 284. In summary the requirement under s 66 for the courts to consider community safety when looking at the question of an intensive corrections order, merely identifies a further statutory element for consideration, which should not be given any greater weight than the other considerations under s 3A Crimes (Sentencing Procedure) Act 1999, such as adequate punishment and general deterrence.
Mr Boland's submission involves a concession that the s 5 threshold has been crossed but is that the term of imprisonment could commence with about 32 months and that with the discount would bring one back to 24 months, and into what he puts as "home detention territory". In support of that he relies on a number of matters in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], per McClellan CJ at CL decision, noting that the subjective circumstances would reduce the significance of specific deterrence here and that a custodial sentence may weight more heavily upon him and that his circumstances mean that he may be an inappropriate vehicle for general deterrence resulting in the reduction of the sentence which would otherwise have been imposed.
I take account of Leighton v R [2010] NSWCCA 280 at [35],
Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health,.
Here there is no suggestion that incarceration would involve a serious risk of having a gravely adverse effect on his health. It would be no doubt inconvenient, but as I have indicated there is no suggestion that the regime of review and treatment available under the Justice Health system is not appropriate for a person in his circumstances.
As the Court said in Parente v R [2017] NSWCCA 284 when affirming the approach to sentencing in drug supply cases, one must first bear in mind the purpose of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999, namely the prevention of crime by deterring the offender and others from committing similar offences. I must take into account all the other purposes of sentencing in s 3A, and must not impose a sentence of imprisonment unless, having considered all possible alternatives, no other penalty is appropriate. In my view, given the sustained supply over a significant period of time the purposes of sentencing, notwithstanding the powerful subjective case here, requires the imposition of a period of fulltime custody.
The orders that I make are:
1. The offender is convicted of the offence.
2. Taking into account Form 1, I impose a sentence of imprisonment of 3 years 6 months, to commence 5 September 2019 and expiring on 4 March 2023.
3. I impose a non-parole period of 15 months, expiring on 4 December 2020. The offender is eligible for release to parole on that date.
4. I find special circumstances.
5. I make orders, by consent, in accordance with Short Minutes of Order filed and dated 6 September 2019 pursuant to the Confiscation of Proceeds of Crime Act 1989.
6. I order the drugs to be destroyed.
7. Back up charges sequences 4, 5 & 7 withdrawn and dismissed.
Note - These extempore remarks were revised without access to the court file
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Decision last updated: 18 December 2019