The maximum penalty of life imprisonment applies for the offending which brings 33 year old Mike Pham, before the Court today, arising out of the very bald facts that on 26 September 2018, he was arrested while getting out of a taxi outside an apartment complex in Pyrmont. He was carrying a backpack containing, 996 grams of 78% pure methylamphetamine, 0.63 grams of pseudoephedrine and $1900 in $50 notes, as well as a small set of scales and a mobile phone. He pleads guilty to one count of supply a prohibited drug in excess of a large commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of life imprisonment and a standard non‑parole period of 15 years. That maximum penalty and standard non-parole period was increased in recent years from 20 years and ten years, respectively, at a time when the threshold for the offence was reduced from 1 kilogram to 500 grams.
A plea was entered in circumstances which, it is conceded, attracts a 25% discount for the utilitarian value of the plea. He has been in custody since 26 September 2018 and any term of imprisonment should commence on that date.
The money laundering count relating to the $1900 cash is to be dealt with on a Form 1 attached to the principal count. That will be dealt with in the way suggested by the Chief Justice in the guideline judgment on these matters.
There is also a summary matter of possess pseudoephedrine, to be dealt with on a s 166 certificate. It is common ground that that can be dealt with by way of an indicative sentence, forming part of an aggregate sentence.
The offender has a limited criminal record, consisting of driving offences in 2009 and two offences in 2016 and 2018, of driving with an illicit drug present in his blood, which are the only other matters on his record.
The evidence initially led by Mr Galloway, who appears with Mr Zhai for the offender, comprised a report of Dr Richard Furst and a character reference by Mr Nhat Pham. Mr Pham is a relative who has known the offender since they were very young. He speaks favourably of his hard work with his family and he says that after he had opened and purchased a courier business, at the age of 26, he lost his licence and that affected his ability to earn and things went downhill. He became aware that he had a serious ice addiction and he saw him go from being a healthy and energetic young man, to someone who was pale, skinny, weak and looking sick. Fortunately, he says, when he went to see him in gaol last month, he was happy and healthy and off drugs, and his time in custody has helped him quit his addiction, and he speaks favourably of his future prospects.
There was a report prepared by Dr Furst, following a recent consultation. The history appears to be uncontroversial. He was born in Australia to Vietnamese parents who left their homeland two years before his birth. He went to school until Year 12, but was not a good student. He commenced use of MDMA and then ice at age 19. The history given to Dr Furst that was that he had a $5,000 debt to someone for the previous three months of drug use and thought that things would get violent if he did not repay the money. It was in this context that he agreed to deliver the drugs in question, in the belief that his drug debt would then be cancelled. He expressed regret and remorse to Dr Furst. He diagnosed a substance use disorder but does not say, and Mr Galloway does not put, that there was any causative De La Rosa type consideration in that regard.
Dr Furst says that in the light of an acceptance of guilt, expressions of remorse, insight into his addiction issues, treatment needs, his supportive family and his absence of significant criminal background, he is likely to be able to rehabilitate himself and his prospects are positive.
The Sentence Assessment Report assesses him as being at a medium risk of reoffending on the basis that the author perceived a limited awareness of the negative impacts his actions had on the community. When questions were raised as the value of the untested assertions in the subjective material Mr Galloway, a very experienced practitioner in these courts, obtained instructions over a short adjournment and called his client to give evidence.
The evidence given by Mr Pham was that he had to drop off this package. He said that he had been given $1,500 in cash when he was given the bag to drop off, and the balance, presumably $400, was his own money. He said he was a daily ice user of up to 1.5 grams per week and he asserted that he has learnt his lesson and would not reoffend.
The Crown put questions to Mr Pham as to the approximate value of the package that he was delivering and he acknowledged that a point of the drug would sell for between $20 - $50, which he now acknowledged meant that the package was worth somewhere between $200,000 - $500,000.
Mr Galloway's point is that his evidence was simply an acceptance of mathematical propositions put to him by the Crown, and that there was no evidence that he had that in his mind at the time. However it is difficult to see how he could have answered those questions honestly if he did not have that knowledge at the time that he was involved in this activity. In the light of the point taken by Mr Galloway, I am inclined not to accept beyond reasonable doubt that he had that knowledge at the time, but simply that it was as an objective fact the value of the range of values of the material.
He was asked as to who he was delivering the package for, and he simply named him as a "smoking friend" and said that he would not name that person because things would not turn out well for the offender. He was asked about the phone that was taken from him and he has declined to provide police with the password.
The Crown put quite properly that he was not telling the complete truth as to his version of these events. I have to say that the Court has difficulty in accepting, even on the balance of probabilities, his account, given that there was nothing compelling or cogent in the history given to the psychiatrist or in his evidence today.
At best the evidence takes him no further than what was set out in the agreed facts together with an acknowledgement that he knew he was delivering a package containing a very valuable quantity of methylamphetamine.
I do not accept his account which was, as the Crown put, a nakedly self‑serving account as to his involvement being simply motivated by a desire to eliminate a $5,000 debt.
In coming to that conclusion, I bear in mind Mr Galloway's submission that on the basis of his long experience in these cases people delivering packages such as this, are often paid a relative pittance, or had a relatively low debt forgiven, notwithstanding that they are often shown to be delivering very valuable quantities of drugs.
Mr Galloway and the Crown have both provided helpful written submissions. It is common ground that when assessing the objective seriousness of the matter, taking into account the weight and purity of the drug and role of the offender and his level of involvement, the principal offending falls below the mid-range of objective seriousness, on the evidence that his role was limited to that of a courier delivering the drug on a single occasion.
Mr Galloway initially conceded as aggravating factors that the offence was part of a planned organised criminal activity and that it was committed for financial gain, but the Crown quite properly eschewed reliance upon those two matters and they are not taken into account.
Mr Galloway's submissions helpfully detail a number of principles in relation to the purity of drugs involved in this type of offending. It will suffice to say that the purity which I have mentioned was of a fairly high level.
I accept that the offender has a long-standing addiction to methylamphetamine which is relevant to moral culpability and can be taken into account, notwithstanding the absence of any causative link asserted by Dr Furst.
Mr Galloway concedes that drug use itself cannot mitigate a sentence, but it is taken into account in the way suggested in cases such as Simpson J's comments in R v Henry (1999) 46 NSWLR 346.
A number of mitigating factors are taken into account. The Crown does not contest the factors submitted by Mr Galloway, although one has to say that the assertion that he was acting under duress, being forced to commit the offence to relieve a drug debt that he could not afford to pay at the time, has some limited relevance. I also take account of his lack of significant record and previous convictions, that his prospects of reoffending and rehabilitation are reasonably good, and he has expressed remorse in taking responsibility for his actions.
Mr Galloway accepts that the offence is of a very serious nature, as reflected in the maximum penalty and the standard non‑parole period. He focussed on the statements as to sentencing principles set out in Robertson v R [2017] NSWCCA 205 and Parente v R [2017] NSWCCA 284, and more recently in R v Pullen [2018] NSWCCA 264 in support of his submission that a term of imprisonment should be served by way of intensive corrections order, acknowledging that imprisonment is mandated by the objective and subjective circumstances of this case so that it is unnecessary for me to consider any alternatives.
The Crown's written submissions prepared before it was apparent that the offender would give evidence, asserted that the Court should reject the self-serving accounts provided by the offender in the reports in accordance with well-known authorities, including Imbornone v R [2017] NSWCCA 144. Although there was no specific question put to the offender as to the accuracy of the personal history set out in the subjective material, there was no challenge to that material and for that reason it is a reasonable basis upon which to proceed to sentence.
Mr Galloway's lengthy written submissions contained a schedule of what were described as comparative cases and helpfully attached the decisions in those cases to the submissions. First, he referred me to the Crown appeal R v Qi [2019] NSWCCA 73, in which an ICO for supplying 1,983 grams of methylamphetamine was overturned on appeal and a sentence of three years with an 18 month non‑parole period was imposed. The methylamphetamine in that case had a purity of 57.5%. Bearing in mind the restrictions on re-sentencing following a successful appeal, I say no more about that other than that Button J said that the sentence was imposed by the primary judge fell outside the discretion available to the sentencing judge and was manifestly inadequate. His Honour helpfully set out nine factors which, without purporting to promulgate any sort of prescriptive rule, demonstrated, notwithstanding Parente v R [2017] NSWCCA 284, it would only have been in very exceptional circumstances that a sentence other than full-time imprisonment would be imposed for this type of offence, and those factors have a significant level of relevance to this case as well. His Honour noted the significant standard non‑parole period of 15 years, applicable to an offence in the midrange of objective seriousness. His Honour noted, as was raised by Mr Galloway here in the course of submissions, that it is true that a large commercial quantity extends to an infinite amount, but it remains the case that the 2 kilograms in that case, or the 1 kilogram approximately in this case is well beyond the threshold of 500 grams. Next his Honour noted, as I have indicated, that in September 2015 Parliament reduced that threshold from a kilogram to 500 grams. Next, the substantial quantity of the drug and its purity and its undoubted monetary value meant that the criminal act undertaken had the potential to do significant harm. His Honour, in effect, took judicial notice of the fact that anyone working in the criminal justice system will be aware that methamphetamine has the potential to do great damage to the lives of people who have the misfortune to become dependent upon it. Next, although the task undertaken by the offender was unsophisticated, in that he was a mere delivery man, to be weighed against that is the fact that someone has to undertake the essential task of transporting large and valuable amounts of prohibited drugs for criminal enterprises and it was this offender who chose to do so. Next, dealing with the facts of that case which involve the forgiveness of a debt of $30,000, his Honour suggested that forgiveness of a debt is often more valuable than a simple monetary amount. Next, his Honour noted that this type of offending is not particularly exceptional, namely a young person of relatively good character who experienced a somewhat challenging upbringing and developed a dependence upon gambling and prohibited drugs and involved himself in the supply of drugs, and that is, far from being exceptional, regrettably not an uncommon occurrence in Australian society. Finally, his Honour noted an intensive corrections order has its own obvious inherent leniency and must be seen as a much lesser sentence than full‑time imprisonment.
The next case to which Mr Galloway referred was the sentencing judgment of Norrish DCJ in R v Lin [2018] NSWDC 286, a case in which the offender was apprehended in November 2014 with 996 grams of methylamphetamine, at the time when the maximum penalty was 20 years with ten year standard non‑parole period. The sentence imposed was four years and six months with a two year non‑parole period for offending which was found to be below the midrange. The offender was described there as a delivery man, which is an apt description of the offender's role here.
The next case referred to by Mr Galloway is Nguyen v R [2015] NSWCCA 268, a decision of the Court of Criminal Appeal in 2015 involving the supply of 44 kilograms of cannabis at a value of $300,000. The maximum penalty was 15 years imprisonment, and after a 25% discount a sentence of four years with a three year non‑parole period was imposed by King DCJ and the appeal against that sentence was dismissed.
The final case referred to by Mr Galloway was the appellate decision in Allen v R [2014] NSWCCA 193 involving 300 grams of ecstasy for which the maximum penalty was 20 years. After 25% discount for the plea Frearson DCJ imposed a penalty of two years and nine months with one year and eight months non‑parole period.
Having read the submissions and the cases to which reference was made I raised with Mr Galloway the question of whether he intended to take me to any cases which he relied upon to support the proposition that an Intensive Corrections Order was appropriate in this case. No further submissions were put on that matter and no further cases were referred to and I am left in the position where the cases to which Mr Galloway has referred to support the conclusion to which I have come on the evidence in this case, that nothing other than a significant term of fulltime custody is the appropriate sentence.
No question of parity arises, even though the initial Crown bundle mentioned three other asserted co-offenders. I propose to take the course suggested, namely, dealing with the s 166 matter by way of an aggregate sentence.
I accept Mr Galloway's submissions that special circumstances should be found on the basis of the offender's relative youth, that this is his first serious encounter with the justice system, this is his first time in custody and that he would require a longer than usual period of supervision on release so as to assist in his rehabilitation from methamphetamine addiction.
The starting point for the sentences before the application of a 25% discount, in my view, should be five years and four months for the principal offence and four months for the s 166 matter, so that the indicative sentences would be four years and three months respectively. I need to indicate an indicative non-parole period for the supply offence and that will be two years and seven months. The aggregate sentence is four years and one month with a non-parole period of two years and eight months dating from 26 September 2018 so the non-parole period will expire on 25 May 2021.
I make confiscation orders pursuant to the short minutes dated today.
I will hand down copies of the orders. You can tell me, gentlemen, if there is anything that requires attention.
FREELANDER: Would your Honour make an order for the destruction of the drugs?
HIS HONOUR: I will make a drug destruction order as well.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 07 November 2019