Ms C Davenport SC (Counsel for the Offender)
File Number(s): 2018/365187
[2]
Judgment
In 2014, Phuoc Thang To, who is now 38 years old, was sentenced to six years imprisonment with a three-year non-parole period for taking part in the manufacture of commercial quantity of prohibited drug. Prior to that, he had had only a minor charge of possess prohibited drug dismissed with a caution, a goods in custody and possess prohibited drug dealt with by a fine in 1999 and 1998 respectively.
He managed to stay out of trouble after his three-year non-parole period for the better part of three years of his parole before he was arrested in November 2018, operating a home manufacturing process, He was charged, and pleaded guilty to one offence contrary to s 24(1) of the Drug Misuse and Trafficking Act 1985 of manufacturing prohibited drug.
There are four counts to be taken into account on Form 1:
1. Sequence 3: Possessing a prohibited precursor (10L of hypophosphorous acid) contrary to s 24A(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of ten years imprisonment.
2. Sequence 4: Possessing a prohibited precursor (20kg of iodine) contrary to s 24A(1) which also carries a maximum penalty of ten years imprisonment.
3. Sequence 13: Possessing a prohibited precursor (80g of pseudoephedrine) contrary to s 24A(1) which also carries a maximum penalty of ten years imprisonment.
4. Sequence 7: Deemed supply of 34.84 of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment
The Form 1 matters will be dealt with in the way suggested by Spiegelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
There is also a charge (sequence 8) of driving with illicit substance present being methyl‑amphetamine to be dealt with pursuant to s 166 of the Criminal Procedure Act 1986, and as indicated during the course of submissions, I will deal with that by imposing a conviction but imposing no further penalty pursuant to s 10A of the Crime (Sentencing Procedure) Act 1999, other than the mandatory six-month licence disqualification.
He pleaded guilty in circumstances justifying 25% discount on the term of any imprisonment. He has been in custody since 27 November 2018 of which I will accept one month and 15 days due to being bail refused on this matter and the balance being referrable to the revocation of his parole.
He was leasing premises in Strathfield South. He was picked up by the Police early in the morning on 27 November 2018 while driving in Strathfield. Police conducted a roadside drug test. He admitted to smoking methamphetamine earlier that morning. He took an oral fluid test which showed the presence of methylamphetamine, this is the subject of sequence 8.
Police executed a search warrant at his premises. In the Crown case and the agreed facts, there is no evidence as to how long he had been carrying out the operation that was discovered, but against his own interest, he admitted to the author of Sentence Assessment Report that he had been producing and using methylamphetamine for about six months before his arrest.
He said he had been doing so to manage the stress due to his relationship breakdown and limited access to his daughter.
Police found a number of items associated with the manufacture of methylamphetamine including dishes, jars, jugs, containers, flasks, containers of chemicals, a heater and a stirrer plate, a spirit still, electric frypans, gloves, mask, filter paper and tools.
As it was put however by Ms Davenport SC for the offender that none of the items set out in schedule 3 of the regulations under s 24A which are indicia of a more substantial commercial manufacturing operation.
The premises were in disarray and the items were found in various locations throughout the premises mixed with large amounts of household items and personal belongings.
Containers disclosing traces of methamphetamine were located in almost all the rooms of a house.
The Form 1 matters relate to items found during the search of the premises and all arise out of the same set of facts concerned with the manufacturing operation.
In an interview with Police, he said that:
1. He had taken over the lease of the premises from a previous occupant.
2. He lives in a domestic relationship with the co-offender
3. That he smokes ice and occasionally washes the product in acetone to make it cleaner.
His subjective case is set out in a psychologist's report and the Sentence Assessment Report. Although treated with the caution suggested in cases such as Imbornone v R [2017] NSWCCA 144 and R v Qutami (2001) 127 A Crim R 369, it appears to be a reasonable basis upon which to proceed to sentence and the Crown does not challenge any of the assertions summarised in the history. The author of the Sentence Assessment Report not only spoke to the offender but also spoke to his mother who provided confirmation of her family support.
While he assumed responsibility for his actions, he minimised his behaviour by saying that he had no intention to sell or supply to others and as the Crown admitted here is no evidence of supply to others apart from his co-offender being his partner.
I am told that she was convicted of summary offences that have been three counts of possess prohibited drug and being found on premises. She was dealt with by a conditional release order in the Local Court.
He said that he was using 1.5g a week and that he had been drug free since entering in custody in November 2018.
He is financially stable. He had been working as a concreter making $1000 a week. Also, since his release to parole, he said he did not need money from drug dealing as he was financially stable.
He was assessed as being a medium to low risk of re-offending and I accept that assessment in light of the evidence before me. He indicated a willingness to address his offending behaviour including substance misuse and his mental health concerns.
He was assessed as being suitable for community service.
He has an unremarkable background. There is no history of family trauma. He went to school in Sydney and worked in Sydney for a number of years.He went to overseas for some years before returning to Australia in 2007 and was introduced to methylamphetamine which became his preferred drug.
He has the support of his parents who visit him in prison. Separation from the mother of his daughter has affected him and he has not told her that he is in gaol.
The psychologist said that he had psychological insight and that there is no evidence of a serious psychiatric disorder. Having conceded that he used drugs as a form of self-medication to manage various symptoms of distress, vulnerability and grief, he recognises the need for treatment.
Given the time that he served in custody, there is an issue raised by the submissions as to whether a term of imprisonment which Ms Davenport concedes should be imposed is to be served by way of the Intensive Corrections Order or whether a non-parole period of somewhat in excess of the time that has already been served should be imposed.
Looking at the objective seriousness of the matter, it is towards the lower end of the range as submitted by Ms Davenport SC, given the relatively unsophisticated and limited nature of the manufacturing operation to which I have referred.
I do bear in mind that the Crown's submits that such domestic operations are often shown in other cases to lead to the risk of fire and injury to people both inside and nearby such premises, but there is no evidence of that occurring here, but it is a matter to take into account.
Ultimately, particularly taking into account the time that has been served, I think it appropriate to impose a term of imprisonment, taking into account the 25% discount for the plea, of 18 months. The term of imprisonment is to be served by way of intensive corrections order with a community service condition and rehabilitation components. The orders that I make are:
Sequence 12 Manufacture a prohibited drug (methylamphetamine)
1. The offender is convicted of the offence.
2. There being no other appropriate penalty and taking into account the Form 1 matters (003, 004, 007, 013) I impose a sentence of imprisonment of 18 months.
3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.
4. The offender is to report to the OIC at the Liverpool office of CCS at 10am, Tuesday 17 December 2019.
5. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ADDITIONAL CONDITIONS
1. Undertake 200 hours of community service work.
2. Undertake rehabilitation and treatment program as recommended in the psychologist's report dated 15 November 2019.
1. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.
Sequence 8 Drive w. illicit substance present in oral fluid (methylamphetamine)
1. In relation to sequence 8, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.
2. Licence disqualification: 6 months
Sequence 2 Organises/conducts/assists drug premises (1st offence)
1. The back-up offence is withdrawn and dismissed.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 October 2022