R v Weng

Circumstances of offending

1. The facts surrounding the commission of the offences are indicated in the judgment I gave at the conclusion of the special hearing: R v Weng [2019] NSWDC 686 and I need not repeat them.
2. A significant factor in the assessment of the objective seriousness of the offending conduct is that Mr Weng suffered from a mental illness at the time of the offending. This may serve to not only reduce his culpability, but also reduces the seriousness of the offending. Nevertheless, as McClellan CJ at CL (with whom Howie J and McCallum J (as her Honour then was) agreed) said in Bhuiyan v R [2009] NSWCCA 221 at [30], although in most cases serious mental illness will have deprived an offender of his usual capacity for reason and control, it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of Mr Weng.

Counts 3 & 4

1. During the sentencing hearing, the Crown conceded that it would be open to the Court, in relation to each of these counts, to dismiss the charges under s 10(1)(a) of the Crimes Sentencing Procedure Act.
2. Having taken into account the matters in s 10(3), I accede to that invitation. The quantity of the drug in count 3 and the circumstance that the proceeds of crime were no more than what the Crown accepted amounted to a 'fake' indicates the trivial nature of the respective offences. The mental condition of Mr Weng is of course significant and presents a level of extenuating circumstances.

Objective seriousness

1. Mr Weng's Counsel referred the Court to the authority of R v MacDonnell (2002) 128 A Crim R 44 at [33] which was to the effect that the gradation of seriousness related to the quantity reflected by the increase in penalty as the quantity of the drug becomes commercial or large commercial quantities (see also Nguyen [2010] NSWCCA 205 A Crim R 106 at [72]).
2. Counsel for Mr Weng submitted that there was little evidence of what role Mr Weng played in the drug supply operation. He submitted that the evidence, such as it was, rose no higher than Mr Weng being a storeman for the methamphetamine ('ice'). Although there were scales and crystallizing of drugs found in Room F of Mr Weng's premises, it was submitted that he could not be implicated in the manufacture.
3. Counsel for Mr Weng also submitted that purity of the drug is a relevant consideration to the objective gravity of the crime (R v Blair (2005) 152 A Crim R 462 at [56]) and that there was no evidence of the purity of the drugs the subject of the respective offences.
4. For count 1, counsel for Mr Weng submitted that the offending falls well below the mid-range of objective seriousness for an offence of that kind.
5. The Crown did not disagree with the characterisation of Mr Weng as a storeman of the drugs; if also a potential user. I did not understand the Crown to seriously dispute that the conduct fell at the low end of the range for conduct of this kind and I so find.
6. No specific submissions were made by either Mr Weng, or the Crown, as to the level of objective gravity for count 2. The quantity of the drug was not large and the role of Mr Weng was the same as it was in relation to count 1.
7. I would assess count 2 as falling at the low end of the range of objective gravity.
8. As to the back-up offence, as I noted, the circumstances of how the alcohol was obtained was not considered in any meaningful way at the trial. Subject to hearing further from the Crown, I would be disposed to dismiss that count for the same reasons I have dismissed counts 3 & 4. At the conclusion of these remarks, the Crown also applied for the dismissal of other back up charges.

Aggravating circumstances

1. The Crown relies upon the aggravating circumstance that the offending was motivated by the wish for financial gain (s 21A(2)(o) of the Crimes Sentence Procedure Act). For drug offences of the kind before the Court, there is a correlation between the actual or potential financial reward for the offending and the penalty: Licastro v R [2008] NSWCCA 131 at [34]). But there is also a distinction between need and greed: Hili v R (2010) 242 CLR 520 at [65]; the former making the conduct less culpable than the latter.
2. Mr Weng's statements in his ERISP interview were to the effect that he was in receipt of money from his parents. He apparently adopted a modest lifestyle, in a suburban home; but as indicated in my earlier reasons on the special hearing, the home contained the contents of many lavish goods. In my view, the existence of these goods is indicative that the motive was veered closer to the greed end of the spectrum.

MR WENG'S SUBJECTIVE CASE

1. The issues of culpability, the likelihood of re-offending and protection of the community are all important considerations for assessing the length of the 'limiting term': R v AN (No.2) [2006) 66 NSWLR 523 at [3].
2. Mr Weng is presently aged 48. He is currently single but was previously married on three occasions. He has three children. He now lives with a friend and support person. His parents live in China. In terms of his employment history, it is extremely limited: according to statements attributed to him, he worked, for approximately one year, in a bakery. He had not worked in Australia and was reliant upon financial support of his family and acquaintances. He receives the Disability Support Pension. This last statement has to be read in the light of the finding I made in the special hearing about the range of material goods in his home being, at least, in part the product of his criminal career.

Mental illness

1. Mr Weng suffers from schizophrenia as well as a substance use disorder (mepthamphetamine, being 'ice') which has destabilised his mental state; as well as being diagnosed with a personality disorder. A recent report prepared on his behalf by Dr Furst, a forensic psychiatrist (dated 11 June 2019) refers to him presenting with features of a severe chronic and treatment resistant schizophrenia, little or no insight into his treatment needs, irritability, thought disorder and delusional thinking. Dr Furst opined that there had been no significant change in his general presentation over the last 3 years, with chronic psychotic symptoms, impaired judgment and a lack of capacity to make informed decisions with regards to the legal process.
2. Amongst the medical material placed before the Court, there was an earlier opinion from Dr Furst about Mr Weng's mental condition on the date of the offending, being 7 May 2015. This included references from medical staff at Cumberland Hospital to his experiencing hallucinations and a lack of sleep in the three days up to that date due to Mr Weng's admitted use of ice. He saw Dr Morgans, a psychiatrist, on 19 May 2015, who referred to Mr Weng's report of hearing a "voice" telling (Mr Weng) to 'kill himself' or 'do something bad'.
3. Dr Furst opined (in the first of his reports dated 29 August 2016 (most proximate to the offending conduct) that the material seized by the police on the day the offences were committed was more suggestive of an addiction to ice or financial profit, rather than a psychotic drive; and that he was aware that his actions were both legally and morally wrong.
4. In terms of his prognosis, Dr Furst considered that Mr Weng was likely to experience psychotic symptoms and requiring on-going psychiatric treatment and rehabilitation. His risk of re-offending could be ameliorated to some degree through ongoing asserting psychiatric treatment and drug and alcohol counselling or rehabilitation.
5. There was no alteration to those opinions expressed in Dr Furst's subsequent reports of 25 September 2017 or 11 June 2019.
6. The report prepared by the Crown's forensic psychiatrist, Dr Adams (dated 22 October 2016) was similar in substance.
7. Prior to going into custody, Mr Weng was living, with a carer, in the property at Guildford where the offending conduct occurred.

Causal connection?

1. Counsel for Mr Weng submitted that all of the symptoms of Mr Weng's schizophrenia - his disordered thoughts, his delusions, the circumstance that he is chronically psychotic and has impaired judgment - contributed to his offending. That, it was said, lessens his culpability and operates to moderate the need for general and specific deterrence and denunciation. Counsel for Mr Weng did not submit, as I apprehended he had in the written submissions, that there was a direct connection between the mental illness and the offending conduct. I do not find that such causal connection existed.
2. It is consistent with my findings in the primary judgment that I do not find any significant lessening in Mr Weng's culpability. My primary judgment set out the positive case advanced on Mr Weng's behalf, suggesting his ignorance of the contents of Room F and even other incriminating evidence scattered throughout his premises. In my view the conduct in making misstatements, if not outright lies, to the police was only done so because Mr Weng was conscious of the wrongful nature of his offending conduct.

Prospects of re-offending

1. Counsel for Mr Weng submits that it is Mr Weng's impaired judgment and impaired capacity to make informed decisions which explain the link between his mental illness and the supply offences; and that, in the absence of improvement in his mental condition, his prospects remain 'guarded'.
2. The Crown does not disagree with that submission. I accept Mr Weng's submission about his prospects.

Prior criminal history

1. In terms of his previous criminal history, Mr Weng had been convicted of assaulting an officer in the execution of duty in January 2016, an offence which though serious, is of a different order to the offences for which this proceeding relates. In Victoria, there are a range of offences, also of a violent nature, concerning armed robbery, burglary and theft, although these go back to the period of the mid 1990s and the beginning of the millennium and should be regarded as being quite dated by now.

Facilitating the administration of justice

1. Counsel for Mr Weng noted that he facilitated the administration of justice by his agreement to a range of facts which obviated the requirement for police and other witnesses to give evidence (s 22A of the Act).
2. The Crown did not disagree, but to my mind, this consideration is of very limited weight - it is not altogether uncommon for agreed facts to be placed before the trier of fact at a trial and generally, of course, a decision to do so will be made with the advice and assistance of an accused's legal representatives.

OVERALL SYNTHESIS

1. I have had regard to the sentencing principles in s 3A of the Crimes Sentencing Procedure Act.
2. For drug offences of the kind before the Court, I have regard to the Court of Criminal Appeal's guideline judgment in Parente v R [2017] NSWCCA 284, which substantially re-affirmed the importance of the sentencing discretion being exercised in the ordinary course without preconceptions as to the appropriate sentencing option. Parente also reiterated the emphasis upon the sentencing principles of deterrence and protection of the community as being especially significant factors and the legislative guideposts provided by the maximum penalty and, in the case of s 25(2) the standard non-parole period. The Court of Criminal Appeal in Parente also approved the statement of Simpson JA in Robertson v R [2017] NSWCCA 205 that analysis of sentencing practices established that where the facts of an offence demonstrate drug dealing to a substantial degree, a sentence of imprisonment would ordinarily be imposed.
3. However, what was said in Parente cannot be entirely applicable in the present context of a person with such mental illness that he is subject to these special procedures. In particular, the purposes of general deterrence and denunciation have less work role to play: R v AB [2015] NSWCCA 57 at [42].
4. In R v Hemsley [2004] NSWCCA 228, the Court of Criminal Appeal set out the significance of mental illness at various levels in the sentencing process, observing (citations omitted) that: "[33] Mental illness may be relevant.. in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced. [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration accordingly; [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. [36] A fourth and countervailing consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence."
5. The Crown accepts that principles of general deterrence and specific deterrence should be moderated in the light of Mr Weng's mental illness. I also note that imprisonment would likely weigh more heavily upon someone with Mr Weng's mental illness than someone who does not suffer from such illness.
6. Although general deterrence, specific deterrence and the considerations of denunciation and retribution are moderated on account of his mental conditions, the consideration of protection of the community is heightened. This is particularly so where the medical evidence of Dr Furst indicates that his presentation has not improved in the last 3 years. Further, as Mr Weng's counsel acknowledges, his prospects of reoffending are guarded.
7. A difficulty for the Court is, by reason of Mr Weng's circumstances, there is no evidence of the normal kind in an ordinary trial in which Mr Weng might give an account to a trained professional, such as a forensic psychologist, of his motives or say something indicative of insight as to why he offended. Counsel for Mr Weng submits that if Mr Weng can remain out of the drug milieu, the risk he presents to the community is small. But there is the rub: there is little to indicate such capacity.
8. In so far as the consideration of community safety is concerned, Counsel for Mr Weng sought to distinguish offences for violence from drug offences of the kind before me. It was suggested that there was nothing, or at least very little -at least recently, as distinct from Mr Weng's past - to suggest the might be violent. I do not accept such distinction. Putting aside the history of violence, albeit in the somewhat distant past, in my view community protection is very significant in drug-related offences. Although the role here of this offender was relatively insignificant, plainly drug supply, particularly of the subject drugs, has a very pernicious effect on the community.
9. As indicated earlier in these remarks, it is common ground, as between Counsel, that had this been a normal criminal trial, a sentence of imprisonment would have been imposed.
10. The purpose of a limiting term is not to punish the person who has not been convicted of any crime, but to ensure that he is not detained in custody longer than the maximum the person could have been detained if convicted following a proper trial: R v Mailes (2004) 62 NSWLR 181 at [32]. It is unnecessary for me to state any non-parole period: R v Mailes at [29].
11. I have concluded that if this had been a normal trial, I would have sentenced Mr Weng, as follows: For count 1, a period of 4 years' imprisonment For count 2, a period of 1 year, 6 months' imprisonment. In relation to each of count 3 and count 4 and the back up charge, those charges should be dismissed.
12. The limiting term for count 1 is significantly greater than that of count 2. Those limiting terms would be served concurrently.
13. Section 24 of the Act requires that upon nominating a limiting term, the Court must refer the person to the Mental Health Review Tribunal and may make an order with respect to the person's custody as it considers appropriate.
14. It was submitted on behalf of Mr Weng that, for the purposes of s 24(1)(b), I should make an interim detention order, pending the determination of the Tribunal as to what should occur (Mailes at [29]; DPP v Khoury [2014] NSWCCA 15 per Bathurst CJ (with whom Beazley P - as her Excellency then was - agreed) at [22]). The Crown agreed with that course.

Order

1. I make the following orders: 1. Nominate a limiting term of 4 years' imprisonment commencing on 31 December 2017 and expiring on 30 December 2021. 2. Mr Weng is referred to the Mental Health Review Tribunal. 3. Mr Weng is to be detained pending further order. 4. Counts 3 and count 4 and the back-up charges (sequences 5-19 inclusive) are dismissed. I note the Crown has also withdrawn sequence 2.

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: 04 December 2019