R v Yao

The Pleas of Guilty

1. His pleas of guilty in the Local Court were confirmed before me in this Court and he adhered to them. He also confirmed that he wished the additional offences to be taken into account when sentence was determined on sequence four and admitted that he is guilty of each of them.
2. The Crown correctly identifies the discount that should be applied to the sentences that would have otherwise been imposed. For the two offences upon which sentence is to be determined upon the application of s 25B(2)(a) Crimes (Sentencing Procedure) Act 1999 the offender is entitled to a discount of 25% to be applied to the sentences identified upon the synthesis of the objective and subjective material that is tendered before me, including the extent to which the offender has demonstrated contrition and the assessment of his prospects of rehabilitation.

Pre-Sentence Custody

1. He has been in custody since he was arrested on 18 November 2021, I intend to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 and it shall commence on that date.

The Facts

1. The facts are agreed and set forth in a document, statement of agreed facts, signed by the offender, by his representative, and signed on behalf of the Office of the Director of Public Prosecutions. The facts extend over 15 pages and are quite complex but it is necessary to provide at least as comprehensively as possible a description of what occurred so that those called upon to read this judgement will understand why I have come to the decision that I have.
2. The offender was part of a sophisticated enterprise engaged upon the supply of prohibited drugs in the Sydney area. The co-offenders with whom he engaged were Ms Lin, a Mr TF So and Mr So's brother Mr YY So.
3. In August 2021 the New South Wales Police Force Organised Crime Squad initiated a strike force to investigate heroin supply in Sydney. They were granted a controlled operation authority on 6 August 2021 targeting these four offenders.
4. At 9.34pm on 7 August 2021 an undercover operative given the number 665 spoke with Ms Lin by telephone and discussed meeting so that she could provide the undercover operative with a gram of heroin. On 9 August 2021, UCO-665 and Ms Lin agreed to meet at Darling Harbour at 4pm the following day. Around 4.10pm on 10 August 2021 they met at that location and during their interaction she provided him with 0.71 grams of heroin contained in a clear resealable plastic bag. Upon analysis that was found to be 72% pure.
5. At 12pm on 12 August 2021 the UCO-665 sent a text to her expressing his thanks and asking, "how do we move forward?" There was no response so at 2.35pm on 14 August 2021 UCO-665 sent another message to her asking, "hey we want to know what's happening? Are we going to do business?" Again, there was no response.
6. At 5.37pm on 15 August 2021, he sent another message to her saying, "hey what is happening. How are we going to do business?"
7. Thereafter the offence charged in sequence one supplying not less than the commercial quantity of heroin that was committed. Both this offender and Ms Lin have been charged.
8. Around 9.50pm on 17 August 2021, UCO-665 received a call from a male person with an Asian accent who identified himself as Andrew. They agreed to meet at Darling Harbour the following afternoon. I interpolate here that members of this enterprise adopted the use of the name Andrew. I am told this was to minimise the opportunity to identify the person engaged in the conversation with the undercover operatives.
9. At 12.15pm on 18 August 2021, UCO-665 and Andrew or the person using that name communicated by text; they agreed to meet at 2pm that day at Darling Harbour. Around 2.05pm on 18 August 2021, Ms Lin and the offender were observed meeting at the intersection of Darling Drive and Murray Street beneath the Pyrmont Bridge. They walked towards the Harbour foreshore; the offender was observed stopping beneath the bridge while she was observed walking toward UCO-665 to meet.
10. UCO-665 spoke to Andrew on the phone and asked him where he was because he, the UCO, wanted to speak with him before any transaction. Andrew sent a text message to UCO-665 asking him if he could see a girl with a black skirt. Around 2.08pm that day Ms Lin approached UCO-665 at Darling Harbour; he told her that he wanted to speak with the male with whom he had been speaking on the phone. She offered to call the male on her phone so that UCO-665 could speak with him. AT 2.10pm while he was with Ms Lin UCO-665 spoke to Andrew on her phone. Andrew told UCO-665 that he wants money first and told UCO-665 that he would need to pay $180,000. UCO-665 asked Ms Lin to confirm the quantity of the prohibited drugs to be supplied. She again called Andrew using her phone. In the exchange that followed, quoted at page 2 of the agreed statement of facts, Andrew referred to 700 grams. UCO-665 informed Andrew that he had the money, that it will take an hour and a half; he asked if he could come back to Andrew and if there was a chance if he could have a look at the product first. Andrew agreed; Lin advised the UCO-665 that they could go together. UCO-665 said that he would have a look and if it was good he would get the money and then come back.
11. UCO-665 and the woman Lin walked to Murray Street and entered a white BMW vehicle with a red leather interior. The registration particulars of the vehicle are included in the agreed statement of facts. This is the offender's registered vehicle; he was in the driver's seat; the undercover operative entered the front passenger seat and the woman sat in the rear.
12. Inside the vehicle, the offender handed UCO-665 a white shopping bag with black handles; it was sealed with sticky tape and had the word 'Fancy' written on it. UCO-665 broke the sticky tape seal and saw that it contained a clear resealable plastic bag with powder inside. Conversation followed quoted from page 2 extending to page 3 of the statement of facts. The offender denied that he was the same person to whom UCO-665 spoke to the day before. UCO-665 said he would leave the bag there; he asked whether he should call the "guy" that he had spoken to just then; the offender said "yeah"; the UCO confirmed that it was not the offender. The UCO said he would call the other person and say that he would get some cash.
13. UCO-665 left the bag inside the vehicle and left the car at 2.21pm. At 2.23pm that day UCO-665 called Andrew and during the call told Andrew he would have cash in an hour and a half and to ask whether the exchange could take place in the undercover operative's car and UCO-665 agreed.
14. At 3.20pm on 18 August 2021, UCO-665 travelled to a briefing location where he was provided with $180,000 for the purchase of the 700 grams of heroin from the woman Lin and the offender. He placed the cash inside a shopping bag and then inside a second shopping bag. At 3.30pm that day Lin was observed outside 41 Darling Drive, Sydney, an apartment building, carrying a white bag with the word 'Fancy' written on it and a black sports bag. At 3.33pm she was observed placing a black bag into the front passenger seat of the offender's vehicle. At 3.37pm the undercover operative had a phone conversation with Lin during which she asked him to meet her at the same place where the offender's vehicle had been parked earlier that day.
15. At 3.45pm UCO-665 met Lin on Murray Street Darling Harbour and showed her the cash inside the Woolworths shopping bags. The offender arrived in his vehicle shortly afterward. At 4.02pm the undercover operative entered the front passenger seat and the woman sat behind him in the rear seat. The offender provided UCO-665 with the white shopping bag containing the clear resealable plastic bag powder and UCO-665 provided the offender with the $180,000 in cash inside the shopping bags.
16. The offender and Lin then counted the money inside the car in the presence of UCO-665. At 4.48pm while inside the vehicle with the offender and Lin, UCO-665 had a conversation with Andrew; that conversation is thereafter described at page 3 of the agreed statement of facts.
17. In that conversation UCO-665 asked about future arrangements and whether the money would be counted in this fashion. Andrew said he would need to speak with his boss and ask him. UCO-665 commented upon the time it was taking and that the risk involved. He said it was fortunate that both were counting and he added, "like if it goes well, see how this goes, but can you do a bit cheaper next time or what?" Andrew said he would talk with him later that night and that he would let him know. UCO-665 said, "cause if it's good, and I'm happy, man, like, I wouldn't mind getting a bit more, like but if you can do me that, make it a bit less, that would be good."
18. UCO-665 said he would just wait for the others to finish and they could then tell Andrew that all was good and they would depart.
19. Once the money was counted UCO-665 had a second conversation with Andrew in the car whilst the offender and Lin were present. Andrew told the UCO-665 that next time there would be no need to count like that. UCO‑665 asked to make sure, "is this the same stuff that you gave me last week?" Andrew replied that it was. Andrew continued, "and also next time we can give you a discount." He said further, "we can make more deals and we can give you cheaper, you know."
20. UCO-665 left the vehicle at 4.55pm taking the white bag with him, that being the bag that the offender and Lin gave to him. He travelled to a briefing location where he handed that over to police. The powder was found to be 685.7 grams of heroin 78% pure.
21. Lin's fingerprint was on the exterior of a piece of clear sticky tape on the side of the bag and she was identified as a contributor to the mixed DNA profile from a trace swab of the handles of the white plastic bag inside the 'Fancy' bag.
22. About 5.01pm on 18 August 2021, the offender was observed driving to an address in Waterloo, the apartment building in which TF So was living at the time. At 5.12pm the offender was observed standing in the foyer of the building holding the Woolworths bag given to him by the undercover operative. He was seen leaving the building around 6.41pm without anything.
23. At 1.17pm on 25 August 2021, UCO-665 received a message from a telephone number ending in 685 saying, "we have new stuff." UCO-665 did not recognise the number and asked who it was; he received a response saying, "the person that we just met last week" …, "I change phone number."
24. UCO-665 asked, "Andrew?" and the person confirmed that it was. UCO‑665 told the caller that they were happy, very happy with the stuff from last time and that he was stuck in Melbourne but that he would give his number to his boss and they would be in touch.
25. At 2.59 on 25 August 2021, UCO-645, a different operative, engaged in a text message conversation with Andrew communicating with the telephone number ending in 685. The conversation is quoted at page 4 of the agreed statement of facts. UCO-645 confirmed that his name was Josh and that his friend had passed the number to him. The person Andrew advised that they had new stuff.
26. There was a comment about the stuff provided the previous week. UCO-645 wanted to get a sample of the new product. Andrew nominated the following day which was unsuitable to UCO-645. He deferred the contact until the following week and agreed to confirm the time.
27. At 7.59am on 30 August 2021, UCO-645 received a text message from Andrew saying, "How is going?" UCO-645 responded and informed Andrew that each of his messages was being sent four times. There was a discussion about that. UCO-645 said he would be in touch when he was ready to get that sample. He asked how much was available and asked for a confirmation of price. Andrew responded, "I can give you a sample first" and the UCO said he would be in touch to arrange to collect a sample.
28. At 2.31pm on 31 August 2021, UCO-645 sent a text to Andrew again on the phone number ending in 685 asking if he could come to get that sample on Thursday mid-morning. There was no response to the message. At 12.51pm on 1 September 2021, UCO-645 sent another message in response to which Andrew said, "Of course". There was an exchange, quoted at p 5. Andrew said he was in the Haymarket. UCO-645 specified 10.30, and suggested Darling Harbour. Andrew said that he was busy the following day. He said after he gave the sample, he would then need to go. They agreed to meet at 10.30 at Darling Harbour.
29. Around 9.30am on 2 September 2021, UCO-645 exchanged further text messages with Andrew using the same number. They agreed to meet at the Urbanest apartment building in Darling Harbour. Shortly after UCO-645 texted Andrew to tell him that he was sitting outside the building. Lin came out of the building and approached UCO-645. At 10.26am, Lin provided UCO-645 with a red envelope and confirmed that she is the person that UCO-645 had been texting, thus the use of the name Andrew by her during those communications. She showed the undercover operative her phone which included the text message exchange that occurred that morning using that number, and UCO-645 asked her who he would talk to about money. She said to just send her a message. There followed a further conversation at p 5 of the agreed statement of facts.
30. The undercover operative said that they were talking maybe ten to 20 at a time but asked if it was going to be powder like the last one or would it be solid. The UCO said they were looking for an actual compressed block. He said to her that if he wanted to talk about bigger amounts than just one plate, is it her that he needed to speak to or was there someone else that he needed to speak to. She said that he should talk to her and she would talk to someone. UCO-645 asked if there was any chance that they could do it differently to that. He said he wanted that because he was his groups boss and that if they were talking about big amounts, he did not want it to go through too many people to talk. She said, "I'll send you the people to talk to you about that." He said he would let her know how he got on with what she had provided.
31. She departed at 10.27am and returned to the Urbanest apartment at 41 Darling Street, Sydney. UCO-645 took the red envelope to a debriefing meeting. This contained 0.16 grams of powder that did not constitute any prohibited drug. At 2.10pm on 2 September 2021, UCO-645 received a phone call from another telephone number 0478 1917 06 which he did not answer. Shortly after he received a text saying that it was Andrew. At 3.14pm UCO‑645 telephoned that number and spoke with an Asian male using the name Andrew during which they agreed to meet for coffee at Campsie the following Monday at 1pm. After this, the UCO-645 saved the number that he called upon to his phone against the contact name "Andrew Campsie".
32. At 11.22am on 3 September 2021, UCO-665 received two further messages on the telephone.
33. I paused here during judgement and had the following exchanged with the Crown: I might just pause here. Should that be 645 at para 30 of the facts? I think these were continuing. REDDY: Your Honour, no, this is correct so at para 30, the messages were sent to the first UCO-- HIS HONOUR: I see, I just wanted to make sure-- REDDY: --and then the UCO refers Andrew to the other UCO. HIS HONOUR: I will return to where I was.
34. At para 30 of the statement of agreed facts, it is said that at 11.22am on 3 September 2021, UCO-665, the first operative, received two messages on the telegram messaging application stating, "Sup bro" and "Andrew". There was an exchange recorded at p 6 of the document. UCO-665 asked what was up. The person Andrew replied, "Nah, just telling U I'm Andrew and we can just chat here after, lol". UCO 645 said, "Ha ha, cool" and then continued, "My boss is looking after things so look after him please brother". Andrew said, "Okay".
35. At 2.37pm on 3 September 2021, UCO-645 sent a message to "Andrew Campsie" on the number ending in 706 saying, "Hi. That sample I got off you guys yesterday was rubbish. What's going on?". At 3.37pm on 4 September 2021, UCO-645 received a response from "Andrew Campsie" saying, "I'll talk to you Monday". On Monday 6 September 2021, UCO-645 and "Andrew Campsie" arranged by text to meet at Burwood Park at 1pm that day.
36. The offence charged in sequence two to be taken into account on the Form 1 was then committed. UCO-645 met the offender in Burwood Park at 12.51pm on 6 September 2021. The offender drove in his BMW. During the meeting, the offender confirmed that the woman Lin worked for him. The offender also said, "We can only have 300 grams of heroin". The offender then gestured to his right eye with his finger and winked at the undercover operative 645 who understood the letter "I" to be a common street term for methylamphetamine.
37. After this gesture, the offender reached into his jacket pocket and gave UCO-645 a small resealable plastic bag containing an off-white crystal substance which the undercover operative placed into his pocket. The undercover operative asked how much for one, meaning one kilogram, and the offender confirmed the price as 200 for one. UCO-645 asked whether he could purchase a compressed block of heroin instead of powder and the offender said, "It would always come as powder." The UCO said, "We were told this one's coming as a block and it comes as powder, the next time I get a sample the sample is shit, do you know what I mean, like I'm trying to ask questions of myself whether this is worth it for us." He asked, "So when can I get another sample of the other stuff, the heroin, you said you've only got 300 grams worth so when's the next lot coming in?" The offender said, "Look it's not going to be too long but I'm not sure about the time." The undercover operative said, "Ask and let me know, once you get a sample for it let me know so I can have a test of it as well, so 200 is that the best price?" The offender said, "Yeah that's the right price." UCO-645 said, "You get your boss to call me whatever it is or maybe even arrange to come out, can you do that?" The offender said, "I'll talk to him." The meeting concluded at 1.04pm that day and after the meeting, the offender drove to the apartment building where the co-offender So resided in Waterloo. The offender arrived at 1.36pm and remained there for a few hours. After his meeting with the offender, UCO-645 attended a debriefing and provided the small plastic resealable bag to police that was found to be 0.55 grams of methylamphetamine with 80% purity.
38. At 6.15pm on 11 September 2021, UCO-645 sent a message to the offender on the phone ending in 706. He informed him that he was happy with the sample but he did not have anyone who was able to take any at the moment so he would hold off until they were ready and let the offender know. He asked when the new H was due in and told him that that is what he needed right now. At 5.18pm on 12 September 2021, the offender responded saying, "Hi bro, when it comes in I'll let you know ASAP. Nothing at the moment." At 4.04pm on 13 September 2021, the offender sent UCO-645 two messages saying, "Got it" and "When R U free." An exchange followed recorded at p 7 of the statement of agreed facts. UCO-645 said he would need a sample first. The offender said that he would let UCO-645 know that night or the following day. UCO asked if the offender could tell him when they could tee up a time to get the sample and that he would like at least one gram this time because it was then easier to check. The offender saw no problem with that.
39. UCO-645 communicated with the offender via telephone ending 706 by text message and phone calls; they agreed to meet at Burwood Park around 10.30am to 11am on 17 September 2021.
40. The offence charged in sequence three to be taken into account was then committed. UCO-645 met the offender at Burwood Park within the appointed time. The offender arrived in his BMW. The offender provided UCO-645 with a small plastic tissue packet containing a resealable plastic bag of white powder. UCO-645 placed that into his pocket. The offender told UCO-645, "We've got another one. So this one, no sample...this one is double...this one is 220." UCO-645 asked, "What's that though is that a key the 700?" The offender confirmed this and said, "It should be 700 because it's the whole brick." The offender said that the sample he provided to UCO645 was powder and the other one is a brick. The undercover operative asked, "How much for each?" And the offender responded, "This one should be a kilo left double drag and just one brick." The UCO said he needed more than that. The offender said, "I'll talk to him. There's more stuff is coming...it won't be long." When asked, "How long?" The offender responded, "It normally, it's going to be, like two weeks."
41. UCO-645 continued discussions suggesting he would probably need closer to ten. The offender spoke of them having another contact in Hong Kong, that they had people there, and that, "We've got many stuff." UCO-645 said he would probably want to sit down and speak with the offender's boss before he did attend. The offender said, "My manager will come outside next time." They exchanged contact details using an encrypted messaging application so that the offender could send the undercover operative a picture of the heroin block. He provided a photograph of a block of heroin stamped with an insignia depicting two lines and the words, "Double DUG lobe Brand." The meeting concluded at 10.50am. The undercover operative travelled to a debriefing and provided the packet of white powder given to him by the offender. This was found to be 0.74 grams of heroin 75.5% pure.
42. The offence charged in sequence four of agreeing to supply more than the large commercial quantity of heroin was then committed. The co-offender TF So is also charged with this offence.
43. At 6.34am on 21 September 2021, there was a message exchange between the offender and UCO-645 using the telegram messaging application. The conversation included inquiry by the UCO as to when the bigger load was going to be available. The offender said, "Thursday." The UCO asked when he could meet the manager. The offender said, "Thursday around 1 to 3pm." UCO-645 said he needed to check a few things and confirm and then responded, "I can make Thursday after work, what part of Sydney are we looking at?" The offender identified Bankstown.
44. On Thursday 23 September 2021, UCO-645 and the offender exchanged further messages via the telegram encrypted application and they agreed to meet around 3.30pm that afternoon.
45. At 1.34pm on 23 September 2021, the offender was observed driving his BMW from his home in Campsie to the apartment building in Waterloo where TF So lived. At 12.29pm, TF So was seen exiting the premises. He entered the offender's vehicle. He placed a small bag into the boot of the vehicle before occupying the front passenger seat. They then drove to George Street Bankstown where they met UCO-645. They met in the car park behind the Three Swallows Hotel at Bankstown. The offender sat in the driver's seat, "So" was sitting in the front passenger's seat; they had a brief conversation in the car park and then travelled to Graf Park in Bankstown in their respective vehicles. In the park, "So" introduced himself as Caddie; an exchange then occurred between UCO-645 and "So" extending from p 8 through to p 11.
46. In that conversation, "So" informed the undercover operative that he was the leader of his generation, that there were others who were older but they could not speak English. So confirmed to UCO-645 that the product to be provided was heroin using the term "H".
47. It was in crystal form according to "So". He said, "It's not the powder". "So" identified that the product was "700…each one 700". "So" told the undercover operative that they had a lot but they would still do it one at a time and then said that next time they could think about doing it in a quantity of three.
48. The discussion continued in which UCO-645 asked if two blocks could be provided. The discussion continued around that topic including the need to do the money count first and arrangements for "So" to send someone to count the money and then to meet subsequently to provide the product.
49. The discussion continued about the quantity to be provided in two blocks, each of 700 grams and during that discussion UCO-645 said, "So if you can check if we can do, maybe two blocks to start off with - fantastic. If you can only do one, that's fine too."
50. "So" said, "Yeah, I will talk to them…I think we can, yeah. But yeah course yeah, of course they don't know you and yeah, this time, it's our first time me and yeah". There was further discussion. "So" agreed to drop the price to 180 which must mean $180,000 per block. They discussed the meeting place and identified Alexandria as suitable. There was then a discussion about the price for Coke and an agreement for 280 was sought to be further negotiated down to 250 in respect of which they would need to ask others.
51. There was a discussion about MDMA in respect of which "So" was unsure. There was discussion about a sample being provided. The meeting concluded at 3.29pm. They returned to their respective vehicles and the offender's vehicle drove from Bankstown to So's premises at Waterloo and then to Chinatown before heading back to the Waterloo premises.
52. At 7.07am on 25 September 2021, UCO-645 received a message from "Andrew Campsie" via the telegram application, "All was to be ready for Wednesday". At 7.50pm on 25 September 2021 "Andrew Campsie" sent three messages to UCO-645 saying, "See you soon" "We do too" "which is 1400".
53. At 8.23am on 26 September 2021, the UCO-645 responded to "Andrew Campsie's" three messages. The exchange is recorded at p 11 with reference to 360,000 papers which must be a reference to $360,000 being twice $180,000, the cost of each block.
54. At 7.47am on 27 September 2021, UCO-645 sent a message to "Andrew Campsie" via the telegram application reporting that he had to isolate because of a COVID contact and there was a need to delay the meeting to the following week. "Andrew Campsie" confirmed this to be okay.
55. At 6.22am on 28 September 2021, there was further communication between "Andrew Campsie" and UCO-645 in which he said "Good morning brother … I have to confirm with you that you will be ready for next week. Do you want me to keep these two for you? Because only few left." The UCO-645 confirmed that he wanted the two blocks held for him.
56. Further communications occurred about scheduling the meeting and ultimately there was agreement to meet at 1pm on 8 October 2021 to complete the transaction.
57. "Andrew Campsie" told UCO-645 that he had booked an Airbnb in Alexandria but the undercover operative wanted it to take place in the car park, to which "Andrew Campsie" agreed, and they discussed the arrangement and how it would occur.
58. Through happenstance the transaction did not complete because at 6.55pm on 7 October 2021, the highway patrol intercepted the offender in his motor vehicle on the Pacific Highway at Wahroonga. At the time the offender was accompanied by TF So and YY So. TF So and YY So were charged in respect to what was uncovered during events that followed.
59. The offender I am told was charged with driving a motor vehicle whilst there was an illicit drug in his blood and he has been dealt with for that. Thus, as was said, the charge is an agreement to supply because the arrangement was not concluded. However, that was not through any decision by the offender to withdraw from the arrangement but because of the happenstance of interception by the highway patrol.
60. The facts continue with the investigation involving the So brothers. Inside the vehicle a bag containing $150,000 cash was found. The vehicle was towed for examination.
61. YY So gave the police access to his phone and they were able then to access messages that were recorded on it.
62. All three were given the opportunity to participate in an interview. The offender declined. TF So and YY So both agreed to participate, YY So declined to answer any questions but TF So explained the money in the car, being part of an arrangement into which he had entered for the exchange of currency.
63. At 8.03am on 8 October 2021, the UCO-645 telephoned "Andrew Campsie" on the number ending in 706 twice but there was no answer. He telephoned another person on a telephone number ending in 333 and spoke to an unknown Asian male who could not provide him with any meaningful information, though it was apparent from the text at page 14 of the statement of facts that he had some knowledge of what had gone before. The person identified as an unknown male advised UCO-645 "that they had been locked up." When UCO-645 asked whether they would still go ahead with the arrangement for that day the unknown male said, "No I don't think so," and the person was unsure about when arrangements could be put in place.
64. The offender was arrested at 7.20am on 18 November 2021 at his home; he was taken to Campsie Police Station where he participated in an electronically recorded interview with an interpreter but declined to answer any questions.

The Co-Offenders

1. Norma Lin was arrested on 21 November 2021 in Balgowlah she declined to answer any questions. TF So was arrested on 23 November 2021, he participated in an ERISP with the assistance of a Mandarin interpreter but declined to answer any questions regarding the allegations.
2. This offender pleaded guilty as noted. T the offenders TF So, YY So and YC Lin are before the Court in 2023. The So brothers are listed for trial on 17 July 2023 and Ms Lin is listed for sentence on 10 March 2023.

Consideration

1. The determination of the sentence for these offences requires the Court to identify where on the scale of objective seriousness they ought to be placed. As the offences are those for which a standard non-parole period is specified, it will be necessary in due course when I identify what I find to be the appropriate sentence to specify a non-parole period that would have been imposed had the sentences been imposed other than by way of an aggregate.
2. The approach to determining objective seriousness of an offence has been the subject of a number of decisions in the High Court and the Court of Criminal Appeal, but helpfully Johnson J in Tepania v R [2018] NSWCCA 247 provided an analysis of Part of 4 Division 1A Crimes (Sentencing Procedure) Act 1999, where the provisions of dealing with standard non-parole period offences are located.
3. The provisions in their present form were amended after the decision of the in Muldrock v The Queen [2011] HCA 39. His Honour provided a summary of the propositions that arise on consideration of those offences. His Honour discussed the application of the sections from that division in the Act. S 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence from the table, which falls within the middle range of objective seriousness taking into account only the objective factors of the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining the appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. Section 54B(3) requires the Court to record its reasons for setting non-parole period that is longer or shorter, identifying each factor taking it into account.
4. In the performance of this task I shall assess the objective gravity upon the consideration of objective factors affecting the relative seriousness of the offence without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending, taking into account relevant factors if they are applicable found in s 21A of the Act, except for those that are essential elements or are characteristics of the offence.
5. When one fixes a non-parole period it is part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must engage upon a process of intuitive synthesis identifying all relevant matter bearing upon the question of the appropriate sentence: McHugh J in Markarian v R [2005] HCA 25.
6. In the determination of sentence for offences for which there is a standard non-parole period specified it and the maximum penalty are legislative guideposts for the sentencing Court along with other established sentencing practices, and by reference to matters identified as relevant in s 3A 21A and 22 of the Act.
7. The Crown concedes and I agree that the objective gravity of these offences by the offender fall below middle‑range but it does not follow that the non-parole period to be determined for these offences will be reached by some arithmetical analysis determined upon the position upon the scale at which the offences should be placed.
8. As I noted it is necessary to synthesise all the material including an assessment of the offender's moral culpability to determine what should be the appropriate non-parole period and the overall sentence for each of the offences. As I said, I agree with the Crown's submission that the offending in this case falls below the middle of the range of objective seriousness for offences of this type. It of course might be otherwise for the co-offenders depending upon what is placed before the Court in respect of them when this assessment is undertaken.
9. In Tepania ibid, the guidance by Johnson J is found at para [110] of the judgement. At para [111], he continued with his discussion with reference to the Attorney General's second reading speech. As noted at para [112] in all matters including standard non-parole period offences the Court is required to assess the objective gravity applying general law principles, so that all factors would bear upon the seriousness of the offence should be considered, unless excluded by statute. Motive, provocation, or non-exculpatory duress maybe considered this way and matters personal to the offender that are causally connected or materially contributed to the question of the offence, including mental disorder or mental impairment, can be regarded in this determination.
10. His Honour then spoke of moral culpability at para [113] and how mental abnormality might diminish moral culpability that might also be illuminated depending upon the extent of an antecedent criminal history. It is well established that limited moral culpability might mean that the retribution and denunciation does not require significant emphasis.
11. I refer to those principles because there is before me a report by a psychologist which is of little weight after the Crown had the opportunity to cross-examine and test the premises upon which the views were expressed in that document.

The Offender

1. The offender was born in 1997 and is now 25 years of age. He was approaching the age of 24 at the time this sequence of misconduct occurred. He has a record of antecedent offences of little significance overall. In 2017 he was before the Court for disposing of property before then stolen for which in the Local Court he was ordered to pay $9,050 compensation and required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 18 months.
2. In January 2022 for an offence on 7 October 2021 of driving with an illicit drug in his blood, he was fined and disqualified. This was the offence discovered by the highway patrol when they fortuitously came upon him with his co-offenders and effectively disrupted the supply of heroin which before then was agreed.
3. He has not given evidence in the proceedings and accordingly I need to employ an appropriate level of circumspection when considering representations attributed to him by others who have written on his behalf. I refer to the opinion given by Smart AJ in R v Qutami [2001] NSWCCA 353 and the judgement of Wilson J in Imbornone v R [2017] NSWCCA 144, particularly at para [57] where her Honour listed the principles for which the authorities cited stand, all directed towards the need for care when assessing untested and unsworn or unaffirmed representations.
4. The sentence assessment report is not entirely favourable but ultimately what has been written may well be simply a matter of expression or interpretation with no further significance. According to this, he came to Australia in 2011 with his family on a business immigration visa. He disclosed to the author a minimal history of gainful employment in retail in 2021. He said his income therefrom was not enough and he depended upon his parents for financial support. He has as noted a minimal history of offending consistent with what I read from his antecedent report.
5. It is said that he appeared to minimise his role for the offences stating that he was only delivering and not supplying drugs. There is little if any difference between whether he delivered or supplied the drugs. It depends upon what he said and what he was intending or what he understood by the term supplying in that context. I do not take that passage into account as an indication that he was not accepting responsibility for the misconduct to which he has pleaded guilty, particularly considering the next paragraph where he shared his understanding that what he was doing was illegal and he failed to exhibit consequential thinking for his own actions. Again, without having a record of precisely what was said, it is difficult to conclude that this paragraph offers anything more than a failure to acknowledge the extent and significance of what he has done wrong.
6. He explained that he was approached by a long-time friend from childhood and thereupon engaged upon these offences. His was convinced that his role was minimal and would not put him at risk. Whatever was said by his friend and accepting the veracity of the representation at that time, his role was anticipated to be one that would not put him at risk. His level of involvement and participation and the extent to which he was entrusted in this enterprise indicates that his role was far more than minimal.
7. He acknowledged that the proposal put to him was risky and illegal but he trusted his friend. Again, that is an ambiguous statement. It might mean that he acknowledged that he was aware of the risk and illegality of his conduct but was relying upon the representations to his friend that his role was to be at a far lesser involvement than what is the fact.
8. His history of polysubstance abuse is noted. He is attributed with the proposition that he was using up to seven grams of cannabis, eight to ten caps of MDMA and seven grams of cocaine weekly and from 21 began to use ice every two to three weeks. He admitted that he was given access to free ice and heroin in return to his participation in the offences.
9. There was nothing said to me about his financial reward for his misconduct, although it is noted that he described struggling financially because of limited employment and that he quit his job because he wanted to obtain money easier and ultimately he engaged in the offences. This carries the implication that he was motivated by the financial reward that has been conceded on his behalf in these proceedings. He is attributed with the recognition that his desire for easy money contributed to his misconduct.
10. It is said that he appeared to have minimal insight into the impact of his offending and that he was focused on his own circumstances and the impact his arrest had on his life. He is attributed with a willingness to undertake intervention and community service and is assessed with a medium to low risk of reoffending. All those observations will be relevant to the supervision that will be required when he is on parole.
11. He has used his time in custody to advantage. His material includes a remand addiction letter of attendance recording the sessions which he attended in May, five of them. He completed the workshop in forensic cleaning at the MRRC which taught him to understand infections, how to handle infectious materials and waste, cleaning practices and forensic cleans practice; there are certificates of completion in respect of that achievement and also working safely, a guide to safe working practices training.
12. His mother has written on his behalf. I have no difficulty accepting that she has done so out of the love that she feels for her son and I note that his father and mother although estranged are present in Court to see these proceedings through. The Court extends to them its sympathy for their predicament and what they are suffering because of their son's decision to engage upon this criminal misconduct which will inevitably lead to imprisonment. The letter she provided was written on 11 November 2022 when her son had been in gaol for almost one year. She speaks with him regularly and is aware that he has had time to think about his crime. She attributes him with having said that he made stupid decisions to use drugs and get addicted, that he became crazy for drugs which led him to be involved with the people who supply them. He told her that he has learnt his lesson the hard way and will always stay away from drugs and advise others to do the same. He intends to share his experiences and things that he has learnt with his family and friends. She notes that all their family are disappointed in him. She thought that at the age of 25 he would be working or building a small family business to achieve his goals and have a bright future. She expected him to work in her small supermarket that she owns and operates in Campsie. This was an opportunity that he had and clearly he has not availed himself of it but chose the path that brings him before this Court.
13. Family members in China and Australia have been shocked because they thought he would study and work hard here. They are shocked that he neglected the opportunities that this country offered and took the fast track to drug addiction and ultimately, gaol.
14. He said that in prison he knows the harmful effects of drugs on drug addicts like himself and that drugs can slowly kill. It surprises me that it took incarceration to make him aware of those facts bearing in mind the participation in the enterprise to which I referred. He spoke to her, she said, of the extended damage caused by illicit drugs not only upon the immediate user but upon their families. He is frightened in gaol because of the COVID epidemic; he has already been infected three times in gaol; he has been isolation and he realises, she said, that is the price he must pay for breaking the law.
15. The offender told his mother that when released he will work hard for her in her supermarket business. He has contemplated his future and understands that his immediate future is to complete the custodial component of his sentence and he understands that is his punishment he must face. She suggests that he might succeed to this business when she decides to retire. He has asked her to accept his deep apology for the crime and he has apologised to his entire family and the Chinese community.
16. Mr Yao has written a letter to the Court. This is dated 18 November 2022. He wants to extend his apology to the Court, his family and to the community for his actions. He understands the seriousness of the crimes and he takes full responsibility for his actions. He expresses remorse and accepts that he has acted with reckless disregard for the consequences of his actions. It is by reason of those sentiments and others included in the letter that I have taken my view regarding the attributions in the sentence assessment report to which I have referred. He spoke of the initial shock of his arrest, how it impacted upon his emotions, fear and anxiety. He writes of the time that he has had to contemplate the seriousness of his crimes and the selfishness they involved. He expresses shame for the problems and pain that he has caused for his family. He speaks of having interacted with other inmates whose lives have been ruined by drugs; he has witnessed the effects of drugs upon their families and the community. He writes of his time in the MRRC at Silverwater where he has been employed in Centre Hygiene. He has been promoted to leading hand and trusted with management of a group of inmates teaching and allocating their work during working hours and managing the Centre Hygiene storeroom. He speaks of the courses he has undertaken. He speaks of having made it a priority to change his life, to work towards education, and participation in the programs such as the EQUIPS Addiction program, which has given him greater awareness, he said, of disruption that alcohol and drugs have had on his life as well as upon the community. He expresses, I am satisfied, appropriate contrition and remorse. I accept that to be the case notwithstanding that I have not heard him to give evidence under oath or affirmation.
17. Also provided is a list of the days during which he has been confined by reason of the COVID-19 virus. It is taken now effectively as a matter of principle that the virus has a significant impact upon people in custody to be brought to account as a measure of the punishment they have been required to suffer for whatever misconduct has put them in gaol.
18. This brings me now to the psychologist's report which as is conceded on behalf of the offender attracts little if any weight in the circumstances.
19. The Crown gave notice that the psychologist was required for cross-examination and he attended today, acknowledged his report, and then answered questions regarding specific passages to which he was taken. I do not intend to spend a great deal of time on this document. I simply note that I find it questionable that a psychologist, even someone of great experience and skill, could adequately assess someone in the position of the offender by way of a telephone call even extending to one hour. During the phone call, in addition to clinical assessment such as it might be, the offender's emotional profile was assessed using the depression, anxiety and stress scale "DASS" with the results that he had moderate depression, moderate anxiety and mild stress, all of which was entirely consistent as was acknowledged, with someone in gaol awaiting sentence on such serious matters as these.
20. The document was not helpful. He was alleged to have suffered early life trauma causing him to feel rather "unhappy", therefore developing symptoms of depression and anxious moods during adolescence. Thereafter, he embarked upon the misuse of prohibited drugs evolving to the level of use that was extant at the time of his commission of these offences.
21. He has been abstinent in gaol and achieved that through his own self-discipline. The concluding comment in the report is that based upon the assessment made, the psychologist is of the opinion that the primary psychological reason for the offence, singular I note, was consuming drugs and alcohol whilst being subject to highly elevated symptoms of depression and anxiety causing him to exercise poor judgement and impulsively not considering the consequences of his offences. I do not accept that proposition. The psychologist was unable to say whether he had seen any documents, although he had memory of having seen something. He had no knowledge of the precise nature of the offences upon which he was prosecuted, nor the detail of the misconduct which I have described drawing upon the statement of agreed facts, the misconduct having extended from at least mid-August through until his arrest in October 2021.
22. The word "impulsive" does not immediately come to mind in those circumstances though it might be the case as the psychologist acknowledged that poor judgement would be a better term to apply. His baseline he said was the assertion of symptoms of depression, his focus was on psychological aspects and the charges and whatever other material might have been brought to account was secondary to that. I do not accept the opinions offered in the report. I do not accept the report as assisting in this exercise but I am satisfied that there is adequate material upon which to conclude that for whatever reason, perhaps disruption in the family home of which I have no evidence upon which to make findings, he became influenced by perhaps less desirable associates, began the well-trodden path beginning with the use of cannabis and ultimately leading to these more serious drugs.
23. Mr Overall, on behalf of the offender, provided his submissions. He correctly identified the important factors for the Court to consider, namely the quantity of the drugs involved and the role that the offender played in the offences. He also brings to my attention the acknowledgement that no other sentence other than gaol is appropriate. This is his first major offence except for minor matters. I put aside the driving with illicit drugs in his blood to one side. The only other offence of significance bearing in mind the time when it occurred is the early one of dishonesty but in the context of this prosecution, it is of limited if any significance.
24. He did plead early. He said he is a low-level offender working under orders without any control over quantity. To some extent that is correct but it is quite apparent that he was trusted to embark upon at least some level of negotiation, albeit it is apparent that whatever was proposed had to be passed back to someone at a more senior level. But he certainly is not at the lowest level. He does fall into that category though of an offender who those at a higher executive position exploit so that they are not at risk of interdiction and prosecution. This said, the way this investigation unfolded, the offender TF So who on the facts I have is at a clearly more senior level, has been captured and now faces his prosecution next year.
25. The offender has been addicted to drugs but I am not prepared to find other than this decision was a lifestyle choice, that it was evolutionary leading to the point where he was negatively impacted at the time he engaged in these crimes. As was said by the Crown, the significance of his drug addiction is that it explains how he comes to be in his present predicament. It does not do very much to ameliorate his misconduct.
26. I accept that through the process that has been followed, he has good prospects of rehabilitation. I will even go as far as to suggest that properly managed, he is unlikely to reoffend, and I have indicated I accept that his remorse is genuine.
27. I have considered the COVID isolation periods and I am prepared to find special circumstances in this case because he is still a young man. This is his first time in custody which is not of itself a special circumstance but taken in conjunction with the opportunity he ought to have for a longer period of parole to properly reintegrate into the community I am satisfied that the custodial component of the sentence should be less than the ratio specified in s 44 Crimes (Sentencing Procedure) Act 1999. I would not describe him as a local courier because his role included negotiator and communicator with the undercover operatives who brought about his ultimate arrest.
28. He was paid in cash and drugs, it is acknowledged. I do not know how much he received, what was the monetary reward he gained. The evidence is silent on that point but counsel conceded that it could not have been of modest proportion bearing in mind the amount of drug the subject of the charges and the nature of the enterprise and the role that he did have in the crimes.
29. I accept that but for this misconduct he is to be seen as a person of good character, though that is qualified by his decisions to use illicit drugs in substantial quantities causing him to have the problems that preceded his involvement with this group and his arrest.
30. I have considered the early plea as I have indicated. It could not be said that there was any justification at all because of financial impairment. As he acknowledged it was easy money and a generous reward for whatever was embarked upon. He has been well behaved in custody. There is no discipline issue. Indeed he has achieved good progress.
31. The Crown submissions include the statements of principle relevant to the assessment of drug offending. The decision in R v Qi [2019] NSWCCA 73 at [81] refers to young people of otherwise good character experiencing a challenging upbringing and developing a dependence on gambling and prohibited drugs, then involving themselves to a significant degree in the supply of those drugs, a not uncommon occurrence in Australian society. In conjunction, with what was said at para [72] to [73], it is the Court's proposition that nothing other than gaol is required in this case.
32. I was also referred to a decision of Ly v R [2008] NSWCCA 262 at [27], later cited in Hristovski v R [2010] NSWCCA 129 at [41]. It was there said that: "The fact that the drugs actually supplied would not be disseminated to the community because the supply took place to an undercover police operative does not materially assist the applicant. The applicant fully intended that the drugs would be disseminated to the community, and it was no act of the applicant that stood in the way of such dissemination."
33. I know there was a competing proposition once advanced by his Honour R S Hulme J in R v DW [2012] NSWCCA 66 who expressed the view that the interdiction by police was a matter that ought to count in assessment of objective gravity at a lower level, but his Honour as I understand the authority, stands, if not alone, certainly within a limited number holding that view; the predominant view is that which I have expressed as quoted.
34. As I noted earlier, but for the happenstance of the highway patrol interception, the drugs would have been provided albeit into the hands of undercover operatives and not onto the street but that was through no effort of the offender or those with whom he was involved.
35. Factors effecting the assessment of objective seriousness for the offence charged in sequence four are advanced. The terms of the offer as to the quantity of the drug and price et cetera is a relevant consideration. Whether it was isolated or part of an ongoing supply of drugs is another consideration. Was it motivated by commercial gain? Was it at all material times the intention to fulfil the offer? Was there the capacity to fulfil the offer and whether the failure to perform was a result of the decision by the person concerned not to supply?
36. In this case the evidence can lead to no other conclusion but that the people with whom the offender was engaged had the capacity to provide the two blocks of heroin for money that had been agreed, $360,000 and the interdiction was not through any decision made by the offender.
37. The factors available from the evidence presented to me are itemised by the Crown in the submissions. The Crown concedes there are no aggravating factors. It is said that the criminal antecedents do not aggravate which is correct but they disentitle him to leniency. The view I take is that I should put that antecedent record entirely to one side. First, the driving offence was after the misconduct, the subject of this prosecution albeit close to it, and the other matter is sufficient back in time and of such a different style of misconduct that it bears not at all upon my decision.
38. The Crown concedes the plea of guilty. The Crown reminded me of what Howie J said in Dang v R [2005] NSWCCA 430 where his Honour wrote of the offender, "Even though his judgment might have been clouded by his use of cocaine, that can have little indication of the objective seriousness of the offence because it was self-induced by his abuse of drugs".
39. There were submissions made about special circumstances which must be assessed carefully and I am reminded of the purposes of sentencing, all of which are engaged in this case and as they are articulated, of course, in s 3A Crimes (Sentencing Procedure) Act 1999.
40. The Form 1 offences will impact upon the determination of sentence in this case. The sentence for the offence charged in sequence four will be identified with consideration of the additional offences to be taken into account. At first blush these additional offences are of little significance because they are minor examples of supply. However, they are part and parcel of the ongoing arrangement whereby the drugs were being made available to the intended purchasers was part of the transactions ultimately intended to lead to the supply, the subject of the charges. I have had regard to the Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518.
41. The additional offences will impact upon the sentence for the principal offence in which they are to be taken into account and an appropriate increase in the sentence that would have otherwise been applied to the principal offence standing alone, reflecting the need for appropriate weight to be given to the aspects of personal deterrence arising from the extent of the misconduct and the community's entitlement for retribution for the entirety of the misconduct upon which the offender engaged.
42. As I said s 3A Crimes (Sentencing Procedure) Act 1999 provides the purposes for which the Court may impose a sentence of imprisonment and they all have relevance. The first is to ensure adequate punishment, the second is to prevent crime by deterring the offender and other persons from committing similar offences. It is invariably the case that those higher up in the structure will use such as the offender to put themselves at risk in the interaction with those who are looking to acquire these drugs, in this instance, undercover operatives. That strategy, of course, provides insulation protecting the principal offenders or those more senior. That is a matter that one always brings to account in such cases but it cannot be overlooked that the opportunity for the principals to exploit the people who are engaged in the actual transactions must be made subject to appropriate comment.
43. General deterrence has a role to play to discourage any person in the community who might think that they can make easy money by taking what they perceive to be limited risk in the face-to-face contact with individuals or into acquire drugs.
44. This is not a case of someone simply delivering drugs to end users. This was conduct involving transactions with substantial quantities of the drugs to be provided. I note that the 685 grams of heroin, the subject of sequence one, is at least twice the commercial quantity specified for the drug at 250 grams and that the quantity of drugs, subject of sequence four at 1.4 kilograms exceeds the base level of one kilogram by 400 grams. The community protection from the offender is a matter that does not loom large in this case considering the findings I have made about opportunities for rehabilitation. Personal deterrence has limited weight as well although it could not be overlooked. The sentence I impose today must be structured to facilitate the rehabilitation of the offender and the level of punishment must be such as to make him accountable for his actions and demonstrate the Court's denunciation of this behaviour and it also must recognise the potential harm for the community had the transactions been with others who would have released these poisons onto the street. This brings me now to the imposition of sentence. I have taken into account the Form 1 offences and I will certify the Form 1 to confirm that I have done so.

The Sentence

1. The offender is convicted of each of the offences to which he has pleaded guilty.
2. For the offence of supplying not less than the commercial quantity of heroin, sequence one, I specify a sentence of 5 years and 3 months which includes a non-parole period of 3 years.
3. For the offence of supplying the large commercial quantity of heroin, sequence four, taking into account the additional offences, I specify a sentence of 7 years and 6 months with a non-parole period of 4 years and 6 months.
4. I shall impose an aggregate sentence. The overall sentence is one of 8 years with a non-parole period of 5 years commencing on 18 November 2021. The offender shall be eligible for parole on 17 November 2026 and his parole period of 3 years will expire on 17 November 2029. I make a finding of special circumstances for the reasons I earlier expressed.
5. I repeat those figures beginning with the aggregate sentence: specify a non-parole period of 5 years from 18 November 2021 to 17 November 2026 with a further term of imprisonment during which he will be eligible for parole of 3 years to expire on 17 November 2029.
6. The sentences identified for individual offences: 1. For commercial supply of heroin an overall sentence of 5 years and 3 months including a non-parole period of 3 years, and 2. For the large commercial supply of heroin the overall sentence is one of 7 years 6 months including a non-parole period of 4 years and 6 months.
7. The exhibits shall remain on file.

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: 31 January 2023