R v Sun

District Court of NSW|2021-06-25

Director of Public Prosecutions (NSW) (Crown) Mitry Lawyers (solicitors for the Offender) File Number(s): 2018/00294866

INTRODUCTION

Young Hoon Sun was presented for trial in the New South Wales District Court at Parramatta upon an indictment alleging two offences contrary to provisions in the Drug (Misuse and Trafficking) Act 1985. The trial estimate was given at approximately four weeks with some expectation that it would exceed that period to some extent. Ultimately this estimate was very inaccurate. The trial extended from 11 March 2021, when the jury were empanelled, until 5 May 2021, when verdicts of guilty were returned for both counts. In the days preceding selection of the jury time was taken for pre-trial issues.

PRE-SENTENCE CUSTODY

On 15 May 2021, upon the jury's verdicts of guilty, I granted the Crown's detention application and the offender was taken into custody. Before this the offender was on bail, but for a period of time was in custody bail refused and serving the balance of parole from an earlier sentence. His pre-sentence custody is gleaned from the following sequence.

Date of arrest 26 September 2018, bail refused.
Balance of parole 26 September 2018 until 28 February 2020.
Detention thereafter continued upon refusal of bail from 29 February 2020 until 19 June 2020 when he was released to bail.
Bail revoked 15 May 2021.

Upon that sequence, upon my calculation, the offender has been held in custody for these offences for a total of 112 days. I note that the Crown has calculated the figure at 111 days. Upon my calculation on 29 February 2020, the offender was in custody. I note that 2020 was a leap year. In March there were 31 days, in April 30 days, and in May 31 days, and then until 19 June 2021 bail was granted. My calculation brings the total to 112 days.
The aggregate sentence to be imposed today could be taken to have commenced no later than 23 January 2021. The exercise of the discretion I have is discussed by Simpson J in Callaghan v R [2006] NSWCCA 58. Her Honour wrote: "22. I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and to be granted parole even after a revocation, to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24. However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referrable to the earlier offences and not the subsequent offences."
The offender was released to parole on 19 February 2018 after serving a custodial component of a sentence for offences of supply more than the commercial quantity of prohibited drug. The sentence was of five years including a non-parole period of three years commencing on 20 February 2015. Thus he was released to parole at the expiration of the non-parole period and committed the offences upon which I am to impose sentence from 4 September 2018, after he had been at liberty for little more than six months. This was relatively soon after he was released and when there was remaining almost one year and a half of the head sentence.
Without more, I would have commenced this sentence from 23 January 2021, but I have brought to account the conditions of bail to which the offender was subject before he was returned to custody upon verdicts of guilty. According to Justice Link on 22 June 2020 his conditions of bail were:
To enter into an agreement to observe the following specified requirements as to conduct while at liberty on bail.

To be of good behaviour;
To report to Burwood Police Station once daily between 6am and 7pm on Monday, Wednesday and Friday;
Not to apply for any new passport or travel document;
Not to approach any point of International departure from the Commonwealth of Australia;
To live in his parents' home and to reside with his parents;
To not be absent from his parents' home except in the company of one of his parents, or his brother, or his legal representatives, other than to leave his residence on his own to report three times a week to Burwood Police Station taking the most direct route thereto and returning to his residence by the most direct route;
Not to have any contact in any way, except through a legal representative, with Ms Song Han, or any other Crown witness, or Haidar Al‑Jeezai (also known as Al J Haidar);
To present himself at the front door of the residence upon an attendance of any police officer;
To use one mobile phone only, being a device and phone number, to New South Wales Police and to update New South Wales Police of any change in respect of the mobile phone used;
To appear at the District Court of New South Wales on 8 March 2021 and on such dates as the Court requires;
To comply with the following enforcement condition, namely drug or alcohol testing;
To refrain from using illicit drugs or alcohol;
To submit to drug and alcohol testing when required by police officers acting within their lawful powers;
One acceptable person to enter into a bail security agreement to forfeit the sum of $30,000 if the accused fails to comply with the bail acknowledgement.

His release to bail was on 19 June 2020 until bail was revoked on 5 May 2021. I have brought these conditions to account upon my understanding that they applied to him from three days after his release upon a variation allowing him to be absent from his nominated address alone to report to police.
In light of these conditions, to which I find he was subject for ten months and 21 days, and which involve a significant curtailment of liberty, I shall commence the aggregate sentence I intend to impose on 23 November 2020.

THE FACTS

My task is to find the facts upon which I am to impose sentence according to my assessment of the evidence consistent with the verdicts of the jury. I must be satisfied beyond reasonable doubt of the facts and circumstances informing the nature of the offences upon which I am to impose sentence. I am not bound to findings of fact that most favour the offender. The facts upon which the offender would rely in mitigation of sentence shall be determined upon the balance of preponderances: Cheung v Regina (2001) 209 CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v The Queen (1995) 183 CLR 1; Regina v Isaacs (1997) 41 NSWLR 374.
The offender did not give evidence in the sentence proceedings but he gave evidence in the trial. His evidence was lengthy, both in-chief and in response to cross-examination. His tendency was to endeavour to control the process ignoring repeatedly my instructions that he should attend to the question and provide the answer that the question sought without embarking upon discursive representations with information which he thought the jury should have regardless of whether it was appropriate or admissible.
The essence of the offender's evidence was that he participated in the transactions upon which the prosecution was brought but did so only because of duress, the product of threats by a man identified as Witness A in the trial, in consequence whereof he accessed the methylamphetamine, the subject of the charges, from a woman named Song Han with whom he had been in an intimate relationship. He claimed that she was the source of the drugs and he was a mere conduit acting solely in response to the fear of harm for himself and his aged parents if he did not comply with the demands made by Witness A.
The offender called evidence from Haidar Al-Jeezai, who sought to put before the jury representations made to him, he said, by the offender, supporting the claim of duress, and circumstances of incarceration with the offender which were alleged to have contributed to his fears and anxieties leading to his participation in these transactions.
I find as fact for the purposes of the assessment of sentence that the participants in these events were the person identified as Witness A, particularly in respect of the first two transactions the subject of count 1, Song Han, with whom the offender was in a relationship, and a woman identified as Louise, and the offender.
The offender introduced to the proceedings Haidar Al-Jeezai and called evidence from him to support his assertions relying upon s 66 Evidence Act 1995. It must be that the jury rejected the evidence given by the offender and that of Al-Jeezai.
I find that both were untruthful in the evidence they gave regarding assertions said to have been uttered by the offender to Al-Jeezai in which he alleged threats by Witness A causing him fear.
So much is clear from the statement provided by Al-Jeezai which was prepared for the purposes of the offender's application to exclude all of the evidence in the Crown case, abandoned before the jury was selected, and which contrasted in significant respects to the evidence given by the offender and Al-Jeezai, which bore comparison such that the inferences to be drawn are either that Al-Jeezai must have had access to the offender's evidence before he was called, or the statement in support of the application was false or at least significantly inaccurate. In either case the credibility of both suffered.
Moreover the evidence included that of Song Han speaking to the "strategy" of alleging that they were the subject of duress, that the offender intended to employ this against the risk of detection, evidence of which was supported by communications between her and the accused contained in the material exhibited in the Crown case through that witness.
I have been helpfully provided with comprehensive submissions in writing by the Crown, and these have included a summary of facts which are, in my opinion, clearly supported by the evidence. I embrace the summary of facts provided by the Crown for the purposes of the determination of these sentences.
With regard to count 1 the Crown case was that the offender supplied the prohibited drug methylamphetamine, the total was 55.77 grams. It was provided to the witness Louise on two occasions. The first on 4 September 2018, one ounce or 27.9 grams, with purity of 78%, and on 10 September 2018 one ounce or 27.87 grams, with a purity of 71.5%.
The Crown case for count 2 was that the offender supplied the prohibited drug methylamphetamine to Louise on three or more separate occasions during 30 or more consecutive days, the total 133.68 grams. The first occasion was 17 September 2018, one ounce, or 25.5 grams, purity 77%. The second, 19 September 2018, one ounce or 24.78 grams, purity 79%. The third 24 September, one ounce or 28 grams, purity of 79.5%, and finally on 26 September 2018, two ounces or 55.5 grams, with a purity of 79.5%.
I find that the offender was not acting under any duress when he conducted each of the supply transactions for both counts. I find that there were no threats made by Witness A to the offender to engage in the drug supply transactions with Louise. This is supported in the evidence from Song Han, including a letter tendered as exhibit 2 in the defence case, asserting that the threats were false. The letter included the following passage: "I told the lawyer about the fact that you and I have been suffering from all the harassment and threating as it's something I can't hide... during the visiting, I told the lawyer the truth about how persistently that person demanded and threatened us!"
This letter must be read together with the evidence given by Song Han and the evidence given by Witness A.
There is also surveillance evidence provided by Detective Senior Constable Alinta Barnard of the meeting on 28 August 2018, describing her observations from p 168 and following of trial transcript.
The evidence also revealed the offender's involvement in the supply of drugs to others before the occasions when these drugs were supplied to the witness Louise.
On 27 August 2018 the offender telephoned Witness A and asked, "Do you have anyone for me who wants to buy anything?" or if he knew anyone who wanted to buy anything. This conversation occurred when Witness A was in the presence of two police officers, namely Detective James Tolhurst and Detective Sergeant Austen Devereux, when the offender telephoned Witness A in the course of the meeting between him and the two police officers. The telephone was switched to loud speaker and the police officers were able to hear what was said. There was no question raised in relation to the call having been made by the offender to Witness A. There was some challenge to the reliability of the memory of what was said by the offender in that call, and some criticism upon the failure of the police officers to record that conversation.
I would note first of all that this call came at a point when, according to the evidence as I understood it, it was not expected, and there is no evidence that in relation to that communication there was in existence a warrant that would have lawfully permitted the recording of that conversation. Moreover I found the evidence of the witnesses describing that conversation to be credible and I accept it to the requisite standard.
On 28 August 2018, the date of the surveillance to which I referred a moment ago, the offender met with Witness A in a café in a hotel in William Street, East Sydney, to discuss the proposed supply of drugs by the offender to a customer to be introduced by Witness A to the offender. This was surveilled, as I indicated.
On 3 September 2018 a controlled operation authority was granted to police in relation to the offender. This included the use of two civilian participants identified by their registered source numbers; these were Witness A and the witness Louise.
At all times, unbeknown to the offender, Witness A and Louise were each authorised to operate as a civilian participant under the controlled operations authority granted on 3 September 2018. The story for the purposes of the controlled operation was that Louise would be introduced by Witness A to the offender as a customer to purchase methylamphetamine from the offender, as she was conducting her own drug supply business to her own customer base outside of Sydney on the Central Coast.
Prior to each supply transaction Louise was provided with buy money in cash by the police handlers; the sum of $4,500 was provided for each ounce (approximately 28.35 grams) of methylamphetamine for acquisition from the offender. Each lot of methylamphetamine thus acquired was given by Louse to her police handlers immediately following each transaction, and she was debriefed by the police in the course of which her description of what occurred in the transaction was recorded. Those recordings were, by consent, played to the jury and provided an immediate record of the witness' description of what occurred on each occasion. She was thus able to refresh her memory from a near contemporaneous record made electronically of what she described.
The offender supplied methylamphetamine on each occasion to Louise in his role as the principal supplier. He utilised Ms Han, his girlfriend at the time, to assist him in the drug supply transactions; he did not act as a facilitator for Song Han; Ms Han was not the principal drug supplier; she did not own, source or provide the drugs that were supplied to Louise; nor did she keep the cash received from Louise, other than as a conduit from her and to the offender.
The two supplies the subject of count 1 were arranged between the offender and Witness A. He operated as a middle man or intermediary between the offender and Louise. The support for this proposition is found in exhibit AO, the surveillance device recording, and a transcript of 17 September 2018. Comments made by the offender in the course of that were: "I'm paranoid, you know, I want [Witness A] to be, um, be a middle man... and then I give, I follow him, like... give it to you, and then you give... you know..." "That's why every, every time I, I, I... I want... my middle man..."
There was no further involvement by Witness A, including in the subsequent supplies by the offender to Louise after 10 September 2018. After that date the offender and Louise communicated with one another by mobile phone, either text messages or calls. The offender had wanted to retain Witness A as the middle man in the offender's drug supplies to Louise to protect himself, because of his paranoia that Louise was an undercover agent of the police, and because he had been to prison for prior drug supplies in 2014 and 2015, which had involved a controlled operation with police undercover operatives including civilian participants.
This is supported by the passages I quoted a moment ago. Included in that conversation the offender was captured saying, "I get all the paranoia... cause... I went to gaol... I just got, got out not long ago... six, seven months ago..."
The offender utilised Ms Han to meet Louise on 12 September 2018 to delay the next drug supply. That meeting was observed by the offender in Burwood Park from some little distance while he engaged upon counter-surveillance. The observations made by the surveillance operatives who were deployed to this occasion provide the evidence of those circumstances.
The four supplies in count 2 were arranged between the offender and Louise by way of their communication via telephone calls, SMS texts, or the encrypted application "Confide". Exhibit R consists of iMessages and SMS text messages between Louise and the offender.
During the supply of 17 September 2018 the offender introduced Louise to "Confide" for their future communications. Thereafter the offender and Louise communicated via the "Confide" application or by telephone calls. The advantage that was represented by the offender to Louise in the course of the conversation when he introduced this application to her is that the communications would disappear from their devices shortly after they were made and could not be recovered by law enforcement.
The offender sourced the drugs that were supplied to Louise from his own supplier up line from the position he occupied in these arrangements. He received the cash paid by Louise for the methylamphetamine he supplied to her. Ms Han did not source these drugs that were supplied, or receive any of the cash paid by Louise. She handed all cash payments for the supply transactions that she received from Louise to the offender.
Support for this proposition is found in exhibit AQ the surveillance device recording, and transcript of 24 September 2018, also exhibit AS, the recording of transcript for 26 September 2018. Evidence of that arrangement was given in clear and unequivocal terms by Ms Han.
I should add at this point that I found Ms Han to be a credible witness. She was cross-examined at length but I found none of her evidence inconsistent, or indicative of embellishment. My view of her is that she presented with credibility was reliable, and is to be accepted as a witness of truth beyond reasonable doubt.
I accept that she did not source the drugs and that any cash paid over by Louise to her was delivered into the control of the offender.
Two aspects of the evidence clearly support this. The first was in one of the transactions, I believe the first of the transactions that occurred in Burwood, the subject of count 1, when the offender was captured by close circuit television taking control of the money and placing it inside his coat jacket into a pocket. The second was on the final transaction, the subject of count 2, when he was seen to divest himself of $9,000 that had shortly before been given to him after the conclusion of that transaction when two ounces of methylamphetamine were supplied to Louise. His explanation that the money simply flew from his hand when he was surprised by the presence of the police officers who arrived to effect his arrest was implausible.
It is upon those facts that I shall determine the sentence in this case.
Song Han was charged and prosecuted for her role in these transactions and was called to give evidence in the Crown case in the trial. She faced lengthy cross-examination, including accusations that she was the principal in these supplies using the offender as a mere conduit.
I am satisfied beyond reasonable doubt that the assertions by the offender, and the evidence given by Haidar Al-Jeezai were false and the result of their combination to falsely represent facts to the jury.
I am satisfied beyond reasonable doubt that the offender is guilty of the offences, that the jury appropriately returned verdicts of guilty, and that at no time was the offender acting under the influence of duress such as he alleged, or otherwise. I am satisfied that he resorted to this as a device to explain his involvement both for the purposes of trial and in mitigation of penalty.

THE PROCEEDINGS AGAINST THE CO-OFFENDER

The Crown material includes the statement of agreed facts tendered in the proceedings against Song Han in the Local Court. They reflect the description of facts that I have so far provided but in some greater detail which I need not procced through at the moment. They included the proposition that there was an arrest of both offenders at her address at the conclusion of the last transaction, the subject of count 2. This address was in Shackel Avenue, Concord.
The co-offender Song Han participated in an ERISP; the particulars of her responses are summarised at p 5; of those she acknowledged some were lies. These included a denial that the offender would be selling drugs. She said that when the police arrived she was sleeping and the offender was going to deliver food. She exercised her right to silence with regard to the presence of drugs in her home. She acknowledged the Doctor, by which term she represented that she knew the offender, visited her every day. She acknowledged that he once was her boyfriend but they were now just friends. She said the offender does not give her drugs and that any drugs in the form of ice she acquires comes from her friend. She said she had never seen the offender with, or use, drugs and she denied supplying or helping to supply drugs, or having a conversation about the supply of drugs.
In the course of the trial some effort was made to have her embrace those representations as reflecting the truth; those attempts were unsuccessful; and Ms Han stuck fast to the statement of agreed facts to which she pleaded guilty before the Magistrate except for pp 1-4 and part of p 5.
I have been provided with the transcript of proceedings before Acting Magistrate Andrews in the Local Court at Burwood on 24 July 2019. These include the submissions made on behalf of the prosecution and the co‑offender. His Honour's judgement upon sentence begins at p 8 of the transcript. He noted that the role of Ms Han was to be contrasted with that of her co-offender who played a more active role, noted that the activity involved the use of her house to facilitate the supply, but that in a number of the offences she did not play an active role such as passing over money or drugs. His Honour referred to her role as a reasonably major role albeit less than her co-offender. He noted that there was some attribution of blame to her co-offender but that ultimately she expressed and accepted responsibility for her offending and acknowledging the illegality of it.
It is apparent that there was no indication of assistance to authorities brought to the Magistrate's attention; the discount that his Honour applied was one of 25% reflecting the utility of the pleas of guilty to the offences upon which she was presented.
She was sentenced to an aggregate sentence of imprisonment of two years to be served by way of an Intensive Corrections Order with conditions requiring abstinence from prohibited drugs, to undertake rehabilitation, and to perform community service.
There were five sequences upon which the Court determined sentence. The sentences indicated as appropriate were respectively eight months, 12 months, 14 months, 18 months and 15 months. These offences were for a supply on 17 September 2018, one on 19 September 2018, one on 24 September 2018, one on 26 September 2018, and a deemed supply on that same date in respect of a quantity of methylamphetamine found in the premises.
There is a slight contrast between the offences there charged when placed beside the conduct for which the offender is to face sentence but such difference is of marginal, if any, significance.
Questions of parity must be brought to mind in the assessment of sentence, but the contrasting circumstances of these offenders is such that I do not accept the submissions made on behalf of the offender that he should suffer a comparable outcome to that which was experienced by Ms Han. She pleaded guilty, she was dealt with in a Magistrate's court, she was dealt with for individual charges of supply and one deemed supply. Her offences were contrary to s 25(1) Drug (Misuse and Trafficking) Act 1985.

THE OFFENDER

The offender was born in South Korea toward the end of 1971. He will be 50 years of age this year. At the time of the offences he was nearing the age of 47 years.
He has a relevant antecedent criminal record.
On 21 April 2014 he was charged with a supply of a commercial quantity of a prohibited drug in respect of which the sentencing court took into account a further offence of supply prohibited drug and another offence of supply prohibited drug exceeding an indictable quantity.
On 30 June 2017 before Toner DCJ on the first of these the Court indicated a sentence of three years and six months with a non-parole period of two years, and for the second a sentence of 18 months, aggregated to five years with a non-parole period of three years from 20 February 2015, the non-parole period to expire on 19 February 2018, and the overall sentence to conclude on 19 February 2020. He was released to parole and embarked upon the offences before me from 4 September 2018 while subject to it.
It appears he was allowed bail for a period of time, for on 18 February 2015 he was charged with goods in custody and possession of a prohibited drug for which he was extended s 10 Crimes (Sentencing Procedure) Act 1999. I note that his custody for the earlier offences commenced within two days of the less serious offences which indicates that he was taken into custody at that point. This is reflected in his custodial record which includes that he was released to bail for a period of weeks from 22 September 2015 until October 2015 when he returned to custody to commence the sentence of five years.
His antecedent record is relevant in the assessment of sentence but not so as to aggravate the level of criminality revealed in his specific conduct, or the proportionate sentence to which he was exposed by reason of that misconduct. It is relevant to the assessment of the weight to be attributed to the aspect of specific deterrence, or personal deterrence, asserted prospects of rehabilitation, and any contrition or remorse that might have otherwise been advanced. In this case of course there is absolutely none.
I find that he is capable of rehabilitation but has demonstrated no desire to achieve it. No other view could be taken in light of the positive aspects of the report issued upon the breach of his parole by the commission of these further offences, which concludes with the unit leader from Burwood Community Corrections supporting the recommendation for revocation of parole in the following terms: "By all accounts Mr Sun was engaged in appropriate intervention to address his criminogenic factors. Despite this, Mr Sun has been charged with further offences of a very similar nature to his index offences. Mr Fotofili's recommendation for revocation is supported."
This report was written on 17 October 2018 by Mr Fotofili. He gave evidence in the trial that notwithstanding the access supervision provided to the offender for his rehabilitation there was no report of any misconduct as was alleged against Witness A consistent with the offender's claim of such behaviour leading to him engage in the misbehaviour alleged of him under the influence of duress. The report includes the following achievements by the offender:
He reported as required and responded satisfactorily to supervision.
He engaged in substance use intervention and commenced counselling with a psychologist.

The intervention focus was drugs, financial and associates;
Under supervision he was involved with a private hospital for the "Doctors' Recovery Program" group and had one on one counselling with the group's psychiatrist - confirmed upon enquiries made of his psychiatrist on 30 May 2018 he reported that he attended the program every two or three weeks and Narcotics Anonymous and was making good progress with no issues to report;
He regularly attended Narcotic Anonymous and Crystal Meth Anonymous;
Oral drug swipe test on 13 March 2018 was negative;
Contact with his family revealed no concerns regarding drug use;
He attended the psychologist on 22 May 2018 and 20 June 2018 with a third appointment scheduled for 25 July 2018 - he was engaged in therapy and was totally committed to full recovery and rehabilitation - his debt "of which I have no other information" was addressed by the work development order;
On 14 May 2018 he reported confirmation attendance at a three day "Kairos" from 1 to 3 June 2018.

The report is positive save for the further offences upon which he is now to be sentenced in consequence of which revocation of his parole is recommended.
It is noteworthy with regard to the offender's claims that his conduct was the product of duress that the opportunities that he so positively exploited during the supervision also provided him with ample opportunity to address the alleged threats and have help. It is incongruous that he would clearly commit to rehabilitation as described in the report, availing himself of all of the resources his supervision must have entailed, but chose not to go one step further and seek assistance, but engaged upon these transactions because of threats so severe in their nature and content extending to the threat of harm to his aged and ailing parents.
According to his representations to a psychologist his father is aged 85 years and is terminally ill with prostate cancer, and his mother is diabetic. There is no evidence that he took any steps to provide for their protection and safety notwithstanding the threats which he claims were made to him.
On behalf of the offender a report was tendered from psychologist Tim Watson-Munro, written on 21 June 2021. According to this he assessed the offender on 18 June and 21 June 2021 by audio/visual link from Parklea Correctional Centre. He had been provided with various documents including historical assessments by a social worker and an addiction psychiatrist from 2018 which are referrable to the previous episode of offending as well as the matter that's presently before me.
The report offers the following propositions:

The offender maintains his innocence;
The offender acknowledged a long-standing substance use disorder referrable to methylamphetamine extending back to his previous offending; it is said: "It is clear that his ice addiction has had a devastating impact upon his life, including destroying his career as an oral and maxillofacial surgeon, the loss of his long term relationship and incarceration".
On the other hand he has "now detoxified" and is thinking more clearly;
He requires ongoing treatment for his psychological problems regardless of the outcome of the sentencing proceedings.

The social history he provided is discussed. He was born in South Korea with two brothers, one four years his senior, now deceased, and the other two years his senior. His 85 year old father is terminally ill with prostate cancer and his 78 year old mother is diabetic. He identifies as their primary carer and experiences concern for them.
He came to Australia when 15 years old. He excelled at school and graduated from Sydney University with a Bachelor of Medicine, Bachelor of Surgery in 1997. He continued with study in dental surgery and oral and maxillofacial surgery. He specialised in reconstruction surgery, children and oncology. His training continued in South Korea and the United States of America. At the time of his arrest he had established a practice in Sydney.
The representations attributed to him include that he was subject of disciplinary proceedings before the Medical Board and the Dental Board arising from drug use leading to suspension of his registration in September 2014 before his arrest in February 2015 for his earlier offending.
I have the judgements from NCAT in respect of the proceedings taken against him there; I shall refer to that shortly.
His drug use history is represented to be in the use of methylamphetamine after his brother suffered a sub-dural cerebral artery rupture when driving in about 2010. He underwent neurosurgery, was admitted to Intensive Care and thereafter his life support was terminated. The offender resorted to the use of the prohibited drug to cope with what he suggests was "survivor guilt".
His use escalated and impacted upon his practice and his registration was suspended before his earlier arrest. Before this he was placed on a voluntary health program via the Australian Health Practitioner Regulation Authority after the Dental Board became aware of his drug use. He relapsed a number of times and was placed under supervision by the Health Care Complaints Commission which required urine screens three times a week between 2010 and 2013.
His registration was cancelled for three years from 22 June 2016 but was not restored due to his more recent prosecution and incarceration. He reported that he had ongoing psychiatric treatment for some years as a condition of his supervision.
When he was suspended he continued with a private psychiatrist, Stephen Jurd at North Shore Private Hospital from September 2018. From 2015 he has been prescribed psychotropic medication apparently for depression which continues. I have a handwritten brief report from Dr Jurd to which I shall come.
The offender is attributed with the following at p 5 of the report: "He acknowledged that his drug use had a dramatic impact upon his judgment, impulse control and consequential thinking. Dr Sun conceded that he was having great difficulties with forward planning, against a backdrop of escalating financial pressures. This inevitably impacted upon his professional life, both in terms of his tasked purpose, as well as his financial position. Dr Sun stated that as a consequence of his addiction, he has lost all of which he has worked for. This in turn has impacted upon his mood state at a level of significance, in the context of exacerbating the earlier symptoms of depression and anxiety. He acknowledged that he in fact was struggling since about 2010, in the context of his engagement ending. He reported that this was a consequence of his partner, who was practising as a dentist, being unable to cope with his addiction and his inability to manage his affairs. Consistent with this I note that he was also under supervision as a consequence of a complaint referrable to poor record keeping."

Sadness, anhedonia, guilt, feelings of being punished, and self‑disappointment;
Being self-critical and tearful;
Agitated, irritable, and lack of concentration, though his decision making has improved;
Diminished energy, and poor sleep;
Loss of appetite, but after ceasing drug use he gained about 10 to 15 kilograms.

Testing is said to have indicated a severe and recurring depressive disorder; there was no indication of major psychiatric disturbance.
The self-reporting questionnaire of the Beck Depression Inventory applied prompted responses which confirmed the psychologist's impression of a severe and recurring depressive disorder. In the lengthy opinion section of the report the psychologist rehearses once more the history gleaned from the offender and propounds the following: 1. The offender suffered escalating grief, depression and anxiety following the death of his brother in such tragic circumstances; 2. He was introduced to methylamphetamine which escalated into a severe addiction; 3. This is turn led to the end of his engagement and the loss of his professional life; 4. He became homeless and for a time lived on the street; 5. From 2015 he has been prescribed medication for depression; 6. Notwithstanding intervention by psychiatrists and drug and alcohol counselling required by his profession's supervising body he relapsed from time to time; 7. He has been drug free since his most recent arrest and incarceration; 8. He has become heavily involved in Christian faith; 9. He has continuing concerns regarding his parents with whom he has had no contact since revocation of bail, and particularly in light of the pandemic.
As is to be expected the psychologist has accepted and acted upon the information gleaned from the offender, however to the extent that the report asserts as true and accurate what the offender has represented caution must be exercised consistent with, for example, the guidance given by Wilson J and Imbornone v Regina [2017] NSWCCA 144.
The offender gave evidence of some of these facts represented to the psychologist in the trial but not all of them. Those representations that deny his free participation in the offences must be rejected. However there is compelling evidence of the sequence of grief, depression and resort to methylamphetamine as a consequence leading to the loss of his professional standing and lifestyle which I accept. This followed the tragedy involving his older brother in 2010. At that point the offender was 39 years of age, which is relatively late for someone to embark upon criminality such as he has done in his past prosecution and the current matter.
There is therefore, I find, consistency in this analysis offered through the report by the psychologist. This must be brought to account for it explains his deterioration. It is appropriate to find that he continues to grieve from the loss of his brother, as one might expect from such a close relationship, and although time might provide the means to cope, the pain suffered does not entirely dissipate, a matter of which I would have no difficulty taking notice.
However against this is the progress that is attributed to the offender by the Community Corrections Officer in the parole report discussed above, and the offender's management of the circumstances and arrangements in the commission of these offences in which he was the principal employing a measure of skill in the deployment of Witness A and Song Han so as to quarantine himself from the transactions from which the drugs were supplied in these offences.

CONSIDERATION OF THE SENTENCING PRINCIPLES

The Crown reminds me of the purposes for sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 and refers to the authorities that are well known and relevant to the assessment of sentence in drug supply cases, including Parente v R [2017] NSWCCA 284. The significance of general deterrence and specific deterrence, providing for the protection of the community, are noted.
I was invited to consider the judgement of Garling J in R v Wong [2018] NSWCCA 20. His Honour identified the significance of s 3A of the Act with reference to the concealed and covert nature of illicit drug supply requiring the dedication of significant public resources for detection and prosecution, attracting appropriate weight to the aspect of general deterrence. The significance of the protection of the community is noted and the benchmark provided by the maximum penalty should not be ignored.
The Crown submits, and I agree, that general deterrence has a significant weight to be attached. Protection of the community against the risk posed by the nature of this offending is important. There is a high level of personal deterrence required given the offender's history and his repeated misconduct in this particular context, and his commission of the offences before me whilst subject to parole.
The Crown addressed the objective seriousness with reference to aggravating factors. The Crown correctly notes the quantity of the drug is not the principal determinant, but is a matter that must be considered with the more important feature of the role of the offender and his level of participation.
The structure of the provisions clearly indicates the legislative intention to discourage ongoing trade in drugs. The ongoing supply charge is concerned with repetition, system and organisation, in the business of the supply of drugs. These features are reflected in the facts with which the Court is here concerned.
There is also reference in the evidence of supplies outside of those upon which sentence is to be imposed. Care is required with regard to those matters lest there be thought to be some increase in the penalty by reason of other misconduct not the subject of charge. This evidence however does provide context in which the particular offences with which the Court is concerned were committed. The evidence includes significantly an attribution on 26 September 2018 when he told Louise that he already had 10 ounces for the last two days: "Already 10 ounces for the last two days... this is the last one".
I agree with the submission that the offence contrary to s 25A Drug (Misuse and Trafficking) Act attracts a custodial sentence. There are no exceptional circumstances that would justify any other course.
I am reminded of the quantity of the drug in each case against the scale provided in schedule 1 to the Drug (Misuse and Trafficking) Act. The Crown submits, and I agree, that the offence charged in count 1 is below mid-range of objective seriousness. Precisely where to place it on the scale is always a matter of judgment; perhaps somewhere slightly or a little more below where mid-range might be placed.
With regard to count 2 the Crown submits that it is above mid-range of objective seriousness by reason of the factors to be gleaned from the conduct upon which he engaged. I have come to the view that that offence falls about mid-range, perhaps slightly above mid-range, but certainly no higher.
Submissions are made by the Crown with regard to the assessment of the role of the offender, and the particulars of the conduct upon which he engaged are discussed in some detail. I already indicated that I accept the proposition that the offender was the principal in his role in these activities, that Ms Han was subordinate and was there to assist him, and also provide a means whereby he could, to some extent, endeavour to be quarantined from the transactions or at least some of them.
By his representations contained in the surveillance device recordings it is clear that he was able to source significant amounts of this drug at relatively short notice.
The Crown then addressed the aspect of duress raised at the trial; I agree with the submission that the jury clearly rejected the proposition that the offender was acting under duress. This was a matter upon which the Crown had the onus of proof to the standard beyond reasonable doubt. The Crown was required to prove to that standard that he was not acting under duress.
I recall on the day that the sentencing proceedings were heard there was a discussion in which I participated with counsel as to how I should approach the assessment of duress asserted by the offender within the context of the sentencing proceedings. I have come to accept the submission made by the Crown that by reason of the verdicts of guilty returned by the jury they have rejected any alleged duress and that accordingly the submissions made on behalf of the offender that there was non-exculpatory duress upon which he can rely should be rejected, and I have done so.
I accept that his moral culpability should be assessed as high in the circumstances of his history of past offending, the progress toward rehabilitation from his misuse of drugs that attended upon that earlier offending, the positive outcomes under supervision by his parole authorities, and yet he embarked upon this clearly commercial enterprise for financial reward.
The Crown concedes that some very limited weight should be given to the proposition that the drugs were captured without going into the community therefore reflecting on the particular harm that might have arisen in the context of this particular offending; however I agree that it has very limited weight. It was the offender's intention that the drugs be disseminated and nothing he did stood in the way of that intended outcome.
The Crown addressed the aggravating factors that might be brought into play. His record of previous convictions and his conditional liberty is noted but within the context that I earlier described, not to aggravate the sentence or the objective gravity of offending, but to inform aspects of personal deterrence and prospects of rehabilitation.
I accept that the offence was committed without regard to public safety. The offender knew that Louise was a supplier, according to his information, conducting her business supplying her customers on the Central Coast.
I am reminded of exhibit AQ, the surveillance device recording and transcript of 24 September 2018, in which the offender represented the opportunity to have available larger amounts. His representations were in the following terms: "If you tell me earlier, like, you know, I can organise, you know... Bigger amount, yeah, of course... Just say one or two... Every time I get five to ten from my friend. So if you tell me earlier I can give you two, three, four. It doesn't matter."
The Crown submits that the fact that this is planned and organised criminal activity is not an aggravating factor because it is part and parcel of this type of offence.
The use of counter surveillance is conduct implicit in such misconduct and is not brought to account as an aggravating factor, but it is part of the factual matrix in the assessment of objective seriousness of the offences.
Mitigating factors not to be taken into account include the aspect of duress which I have already discussed. I agree with the submission made by the Crown that he was not a person of good character at the time of the commission of these offences. He might well have been able to rely upon that aspect of his life up until 2010 but events that followed from that point on, including his rehabilitation, of which there is evidence in the parole revocation report, can lead to no other conclusion but that he is not a person of good character within the context of the offending with which I am concerned. The submission made to the contrary on his behalf by his counsel I reject.
I am not able to find that he is unlikely to re-offend. I am unable to find that he has good prospects of rehabilitation. There is no contrition and remorse and he persists in what I find to be the forlorn denial of his criminality in this case.
I have already dealt with the question of parity upon which the parties made submissions. The matters that the Crown has brought to attention are those aspects in the sentencing remarks of the Magistrate who dealt with Ms Han, the different role that was performed by each of them, and their circumstances, which are to be distinguished one against the other. His status as a medical practitioner and his age, in contrast to Ms Han's circumstances, is also a matter to be brought to account. His criminality and moral culpability in the circumstances are significantly higher to that of Ms Han in the misconduct upon which she engaged.
The line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and there can be no sentence for either offence other than one of imprisonment.
Mr Mando provided comprehensive submissions in writing and spoke to them at length on the occasion that the sentence proceedings continued before me while I was sitting at Newcastle. The matter was conducted remotely using the AVL system.
The submissions press a finding of non-exculpatory duress. I do not accept that submission. I do not find that he was acting under duress in any measure.
In the beginning of para 11 Mr Mando urged that the offender should be given the benefit of good character drawing upon his previously promising career that would have continued but for the loss of his brother and his resort to drugs. He has what was said to be the potential for positive and constructive "industriousness" in the community and the potential for rehabilitation should he be able to enliven his professional career.
The difficulty is that I am satisfied that he has rehabilitated from the misuse of the drugs and he has demonstrated capacity to that extent, but I cannot find that he has good prospects of rehabilitation from the criminality upon which he engaged, notwithstanding that he had been able to desist in his misuse of methylamphetamine.
In para 13 counsel wrote: "The relevance of Mr Sun's previous drug addiction is to qualify the Crown's submission that Mr Sun had a tendency to engage in drug supply while not being under duress, a submission which if accepted, unqualified, may unjustifiably, negatively influence the assessment of Ms Sun's character at a time when he is NOT under the influence of a drug addiction (such as at the time of the subject offences). It is submitted that what a court...with reality that Mr Sun, during a period in which he is addicted to the drug ice, could be more susceptible to engaging in drug supply without being under duress to do so."
I found that passage challenging, I might say. At the time of the offences in 2018 he was making good progress, if not achieving rehabilitation, from his misuse of drugs. But that aside as I understand it, the submission is that but for his misuse of drugs he would be a person of good character.
His misuse of drugs is explained by the tragedy in 2010, but it could not be said that his resort to the supply of the drugs because he was a user of the drug allows him the opportunity now to assert that he is a person of good character according to this submission when not under the influence of drugs.
If he was not under the influence of drug in 2018 at the time of this offending, it demonstrates that he was motivated by commercial considerations to engage upon these offences. This is how I approach the matter.
The submissions are lengthy with reference to a great number of authorities. The argument on behalf of the offender is that he was a mere conduit but was not the principal offender. This is a matter which, in my opinion, cannot be accepted in light of the jury's verdicts and the findings of fact that I have made in the case.
Counsel has provided a detailed analysis of authority and what is meant by the term supply, as defined in the Drug (Misuse and Trafficking) Act, what is expected of the sentencing judge in such cases, and the significance of an Intensive Corrections Order in a matter such as this.
I was reminded of a decision in Mirza v R [2007] NSWCCA 248 in which it was said that an ounce of cocaine was supplied on each occasion in the context of ongoing supply. In that matter a non-parole period of three and a half years with a balance of two and a half years was upheld.
I have noted though, and this as I recall were matters brought to my attention by the Crown, Mirza ibid involved an offender who had pleaded guilty and had a significant discount applied, and moreover his conduct was on the Crown's submission of less seriousness than that with which I am concerned.
I am reminded of the authorities dealing with the concept of financial gain, and then there were strenuous submissions made regarding duress with which I have disposed. The fact that an undercover operative was used in these transactions is also relied upon in mitigation of the penalty that might otherwise be imposed; I have already commented upon that.
I am helpfully provided with the details of the quantities in each of these transactions, the purity levels, and what has been said by authority with regard to the type of drug, which is not of significant moment in the assessment of punishment of such a case, bearing in mind the quantity based regime that is published in schedule 1 to the Drug Misuse and Trafficking Act, which provides a significant measure of certainty with regard to the approach one takes, whereby Parliament identified appropriate quantities for the particular drugs listed reflecting the knowledge and understanding of the harm that those drugs have for members of the community.
There were submissions made in some detail regarding the offender's role and his level of participation, again hinging upon what was submitted with regard to the offender's case. Extensive submissions made with regard to the weight to be given to this as a planned organised criminal activity, which I have already noted should not be brought to account as an aggravating factor.
Parity is discussed and there is a view urged that I should approach the matter in a comparable fashion to that which was taken with Ms Han. For the reasons I have already articulated I do not intend to follow that course.

THE SENTENCE

I have proposed an aggregate sentence in this case. I should add I have been provided with statistics giving an indication of the range of penalties that have been imposed for offences contrary to these provisions. They are of some assistance but have a limited role to play. As is often said, each case turns upon its own facts and one must consider the unique facts and circumstances before the Court.
The offender is convicted of each of the offences of which he has been found guilty by the jury.
In respect of the offence charged in count 1 of supplying methylamphetamine I identify as an appropriate sentence a period of imprisonment of 4 years.
For the offence charged in count 2, the ongoing supply of methylamphetamine, I select as appropriate a sentence of imprisonment of 6 years and 3 months.
I agree with the submissions made on behalf of the offender that there should be a significant measure of overlap between these two sentences in aggregation because in truth it is a continuation of misconduct that extended from the first occasion charged in count 1, through to the last occasion in count 2.
Thus I have selected an aggregate sentence of 7 years. That shall commence on 23 November 2020.
I specify a non-parole period of 5 years to expire on 22 November 2025, and the head sentence shall expire on 22 November 2027. He shall be released to parole at the expiration of the non-parole period. Supervision in that period will be a matter for the parole authorities.
The ratio between the custodial component of the sentence and the parole period is 71.4% custody with 28.6% parole. Clearly there is a slight variation to the statutory ratio as specified in s 44 Crimes (Sentencing Procedure) Act 1999. It is appropriate that I make a finding of special circumstances; the prospect of rehabilitation if it is to be exploited will require a period, I believe, of two years in the community after he has completed the custodial component of the sentence.
I have also brought to account the added punishment that is involved in his incarceration in circumstances where there is only a brother in the community who can provide care for his aged and ailing parents who are clearly toward the end of their lives. Thus I have adopted the structure that I have indicated.
I do not believe that a sentence of less than five years in custody is appropriate in this case.

CONSEQUENTIAL ORDERS

There is a notice of motion before me for confiscation orders. These were provided on the last occasion when the matter was before me. They are to be made by consent. The notice of motion was supported by an affidavit provided by Detective Senior Constable James Tolhurst.
The orders sought are that pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 a sum of $A9,000 seized from the offender be forfeited to the State of New South Wales.
The Court grants leave to dispose of the property pursuant to s 19(3)(a) of the Act.
Upon making those orders it was brought to attention that the Offender did not consent to the proposed orders and discussion then followed. After counsel acknowledged that the orders sought in respect of $9,000.00 from the last transaction were not opposed, further discussion followed in which counsel pressed the opposition to remaining orders, at the conclusion of which the following exchange occurred; "HIS HONOUR: Mr Mando, in light of the verdicts and the findings of fact that have been made in relation to the sentence process why would I not make the orders that are sought?" "MANDO: Well I'm just indicating what our position is, your Honour. Your Honour, has obviously made a finding of fact against our position and it's a matter for your Honour."
Thereafter the judgement continued.
I am now faced with a notice of motion filed by the Crown asking for relief pursuant to the Confiscation of Proceeds of Crime Act 1989. The motion is supported by an affidavit sworn or affirmed by Detective Senior Constable James Tolhurst annexing his statement in which in para 6 he identifies transactions on 10 September, 17 September, 19 September and 24 September 2018. Each of those involved the purchase of methylamphetamine for the sum of $4,500, save for the transaction on 17 September 2018 which was for $4,600. A final transaction on 26 September 2018 was for two ounces of methylamphetamine for $9,000.
The $9,000 from that transaction was seized by police at the point of arrest and has been held by them, thus in respect of that money the orders sought are that pursuant to s 18(1) of the Act the Court order that the sum of $9,000.00 seized from Mr Young Hoon Sun be forfeited to the State of New South Wales, and that pursuant to s 19(3)(a) the Court gives leave to dispose of the property claimed forthwith. There is no challenge to the Court making that order as it is sought in those terms, and accordingly I order that forfeiture, and give that leave, and I shall sign the order in those terms and file note in these proceedings.
The further sums of $4,500, and the one sum of $4,600, that were referred to in the transactions on the dates I identified, upon the evidence presented in the trial and according to the findings of fact I have made, which I also find are entirely consistent with the verdicts returned by the jury, were funds given to the civilian operative Louise and paid over for the methylamphetamine provided on those occasions by the offender. The evidence is clear that is what occurred, and I have accepted that evidence as establishing those facts. Thus the Crown asks that pursuant to s 29(1) of the Act the Court assesses the value of the benefits from drug trafficking at any time derived by Mr Young Hoon Sun and order that Mr Young Hoon Sun pay to the State a drug proceeds order equal to the value so assessed.
I find that the value of the benefit from the drug trafficking, the subject of this prosecution, derived by Young Hoon Sun extended to $22,600, that being the cash that was paid and not recovered after the transactions, and in the course of the investigation. Accordingly I make the order as sought, including that the offender, Young Hoon Sun, pay to the State of New South Wales a drug proceeds order in the sum of $22,600.
I note that the order is opposed on the basis that it was the offender's case at the trial, and in the course of the sentencing proceedings, that he did not receive the money, that he was no more than a mere conduit for the benefit of Song Han, and that it is more appropriate to make the order only against her if one is to be sought.
A certificate pursuant to s 166 Criminal Procedure Act 1986 certifies a related offence of dealing with the proceeds of crime in respect of the sum of $9,395. I note that the Crown withdraws that charge and no further order is required.

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Judgment (11 paragraphs)

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