Taysavang v R; Lee v R

Taysavang v R; Lee v R - [2017] NSWCCA 146 - NSWCCA 2017 case summary — Zoe

[5]

Agreed facts concerning commission of the offence

The facts upon which both applicants agreed they were to be sentenced were as follows. On Thursday, 13 November 2014 a police undercover operative ("UCO") contacted Khieopan by telephone and arranged for him to supply some methylamphetamine ("ice") the next day. This supply occurred. Neither of the applicants was involved.
Between Monday 17 November 2014 and Wednesday 19 November Khieopan made arrangements with the UCO by phone calls and text messages for the latter to purchase three ounces of ice at $6,500 per ounce. That is, 84 g for $19,500. At about 1:10 pm on Thursday 20 November 2014 the UCO drove to the Sydney CBD and parked on Liverpool Street. The UCO met with Khieopan, who joined him in the UCO's car. From there Khieopan made and received a number of mobile phone calls.
At 1:45 pm Khieopan left the vehicle, met with the applicant Taysavang and accompanied him to a nearby hotel on the corner of Pitt and Goulburn Streets. Khieopan emerged from the hotel two minutes later with the applicant Lee and returned to the UCO's car. Khieopan sat in the front seat and the applicant Lee sat in the back. Mr Lee handed the UCO a Winfield Blue cigarette pack which contained a clear resealable plastic bag containing approximately 28.4 g of methylamphetamine. Having seen the drugs the UCO showed Khieopan and Mr Lee a white plastic bag containing $19,500 in cash. Mr Lee then made a phone call and described over the phone to the receiver of this call where the UCO's car was parked.
Mr Taysavang shortly thereafter emerged from the previously mentioned hotel and approached the motor vehicle. Khieopan and Mr Lee were still in the vehicle as he approached. They pointed out Mr Taysavang to the UCO. Mr Lee exited the motor vehicle and waved Mr Taysavang towards it. Both Mr Lee and Mr Taysavang entered the back seat. Mr Taysavang handed to the UCO a black pencil case containing two plastic resealable bags within which was approximately 54.1 g of methylamphetamine.
Mr Taysavang then left the motor vehicle and walked away. The UCO handed over the $19,500 to Khieopan, who in turn handed it to Mr Lee - apparently because it would not fit in Khieopan's pockets. Mr Lee counted one bundle of $4000. He then left the motor vehicle and walked off in the direction Mr Taysavang had gone. Khieopan followed Mr Lee and spoke with him. The two of them walked to the hotel, after which police surveillance of them ceased.
Khieopan was arrested and charged on 27 November 2014. Mr Taysavang was charged on 24 February 2015 whilst he was in custody on an unrelated matter. Mr Lee was arrested and charged on 19 March 2015. None of the $19,500, which was pre-recorded "buy money", was recovered.

[6]

Subjective circumstances of Mr Taysavang

Mr Taysavang was 44 years old at the date of the offence. He did not give evidence in the sentence proceedings but her Honour accepted the history he had recounted to a psychologist, whose report was tendered. He was born in Laos, the second of two children. When he was aged 5 years (about 1975) his father was interned in a prisoner of war camp. Mr Taysavang was also separated from his mother at this time and for the next nine years, to about 1984, he was cared for by his grandparents. He was exposed to the violence of war in Laos in his early years and received very little schooling. During the nine years in which Mr Taysavang was in the care of his grandparents, his mother remarried, had 5 children by her second husband and moved to Australia. Mr Taysavang was reunited with her in Canberra at the age of 14 in 1985. He has not seen his father again. The father died in the United States in about 2006.
Upon arrival in Australia Mr Taysavang commenced school in year 9. He had difficulties due to not being able to speak English but remained at school until the beginning of year 11. He then commenced working in his stepfather's cleaning business, from about 1988. From that occupation he moved to contract house painting.
Mr Taysavang's criminal history dates from 1993 when he was aged 23 years. In the Australian Capital Territory he was in possession of heroin in November 1993 and was convicted for that and for self administering the drug. A community service order was made and he was put on a good behaviour bond for 2 years, which he breached repeatedly. He incurred a number of convictions for possession and administration of heroin in the ACT in 1995, 2000 and 2001.
In the period 1995 to 2008, during which he apparently resided in the ACT, Mr Taysavang also committed a series of offences of dishonesty and violence: destruction of property, assault occasioning actually bodily harm, handling stolen property, minor theft, possession of a knife and ammunition, burglary. On a number of occasions he was dealt with by way of suspended sentence, bond and/or other punishment short of full-time custody. Finally on 8 November 2005 his persistent offending resulted in the ACT Magistrates Court imposing a total effective sentence of 10 months imprisonment for burglary and theft charges and a failure to answer bail.
Mr Taysavang commenced a relationship with a Ms Jones, who gave birth to their child 2001. They separated soon after. When the child was 2 years of age, in 2003, Ms Jones moved to Perth Western Australia and left Mr Taysavang as sole carer. A child protection authority subsequently removed the infant from Mr Taysavang's care in 2005. At that point he was using methyl-amphetamine to which he became addicted. He ceased working as a painter in 2005.
Mr Taysavang was first charged in New South Wales in January 2009, with possession of a prohibited drug. At the same time he was charged with having goods in custody. He failed to answer bail on these counts and was not sentenced for them until 26 May 2010, from which date he served 3 months imprisonment. He committed three further offences of having goods in custody and another count of possession of a prohibited drug in early 2011. In that period he also committed offences of having false identity documents and being in custody of a knife in a public place. He received concurrent sentences which gave rise to a total effective term of 9 months, with 5 months non-parole period.
He was not long out of prison on the expiry of this non-parole period before he committed further offences of having goods in custody and possession of identity documents for the purpose of committing an indictable offence. A further sentence of 12 months with 6 months non-parole period was imposed, commencing 30 September 2011. Eleven months after release he committed further similar offences in March 2013 and he was in possession of a prohibited drug on 16 August 2013. For these offences he was imprisoned for a total effective term of 8 months from 16 August 2013 to 15 April 2014.
Mr Taysavang was only at liberty for four months when he was charged, on 15 August 2014, with being armed with intent to commit an indictable offence, larceny and possession of identity information for the purpose of committing an indictable offence. On these counts he was initially dealt with in the Drug Court where an aggregate sentence of 16 months imprisonment was indicated, suspended subject to his compliance with the Drug Court regime of abstinence from drug use, submission to testing and the like. He failed to comply with that regime and by the time of the commission of the supply offence of 20 November 2014 a warrant had issued for his arrest on the basis that he had abandoned the program. On 26 November 2014 he was arrested and charged with having goods in custody. Apparently bail was refused on that charge.
The psychologist's report tendered in the sentence proceedings before Traill DCJ records that he had never previously consulted a mental health professional or had "a formal mental health diagnosis". The psychologist identified "symptoms suggestive of" post traumatic stress disorder and major depression but she was not qualified to make a diagnosis. Mr Taysavang told the psychologist, with respect to his experiences in Laos from 1972 to 1984, that his memories of war there were "distressing but his main hurt was the breakup of the family and missing his father".
Her Honour noted but did not in terms adopt the psychologist's assessment, based upon psychometric scores, that Mr Taysavang is at a moderate risk of reoffending. These psychometric results would appear to be a poor guide having regard to the entrenched lifestyle of criminality which is demonstrated from the record summarised above.

[7]

Subjective circumstances of Mr Lee

Mr Lee was 36 years old at the date of the offence. He was born in South Korea and educated there. He gave evidence before the learned sentencing judge. After high school he completed tertiary studies in construction architecture and computing. He worked in a Korean telephone company as a network engineer for some time. He migrated to Australia in 2007 at age 30. Two years later, in 2009, he married a woman whom he met in Australia. He also furthered his studies in New South Wales, completing an advanced diploma in hospitality management in 2009.
Having attained that qualification Mr Lee commenced working as a chef. For a period of three years up to 2012 he had three jobs and worked very long hours, seven days per week. He consolidated his finances and was able to save $50,000. For two and a half years from 2010 he also remitted funds to South Korea to contribute to treatment costs for his grandmother who had developed cancer.
At the beginning of 2013 Mr Lee discovered that his wife "have someone else except me and I felt extremely depressed and extremely sad actually". He commenced almost immediately to use methylamphetamine to which he became addicted. By 2014 he was using the drug daily and it was costing him in the order of $250 per day. For the purposes of a pre-sentence report dated 2 December 2015 Mr Lee informed a Community Corrections Officer that he was diagnosed with depression in 2012 but used the prescribed medication only sporadically. He claimed to have experienced panic and anxiety attacks and to have used methylamphetamine to self medicate. Mr Lee described to a Justice health psychiatrist two suicide attempts, one in 2013 and one in early 2014.
Mr Lee commenced another relationship in 2014, which lasted until he was arrested. At that time his new partner was deported to Thailand. The relationship had not been successful, in any event, because Mr Lee found it "too [hard] to get over my … previous relationship". He had been unemployed for six months up to the date of the offence, during which anxiety attacks had affected his ability to perform his usual work.
Mr Lee played his part in the offence in consideration for 1 g of methyl-amphetamine. After this he went to South Australia and ceased taking drugs for about six weeks. He attempted to break his addiction and was "looking for job and new start" in Adelaide. Following his arrest he was refused bail. He had been in custody for over a year (from 19 March 2015) at the time of the sentence proceedings.
In gaol during his remand he had been working from 8:00 am to 2:00 pm Monday to Friday and had read a considerable number of business related books. He said it was his ambition to return to "proper job" upon his release and to try to "open small business for my own", such as a small restaurant or cafe. Before his arrest he had been a heavy smoker but he had ceased smoking whilst on remand as part of his endeavour to "change my lifestyle and life habit, bad habit, I just want to cut that off".
Mr Lee's criminal record is consistent with his account of having suffered a deterioration of mental health and having commenced to use illicit drugs following separation from his wife. His first offences were common assault and destroying property committed on 24 January 2013, for which he was placed on a bond. He did not comply with the bond.
On 26 October 2013 he drove a motor vehicle whilst an illegal drug was present in his blood. For this offence, on 31 January 2014 he was disqualified from driving for 6 months.
On 8 December 2013 he was again in possession of a prohibited drug. Whilst the charge for that offence was still pending in the Local Court, Mr Lee was charged with possession of a prohibited drug on 29 September 2014. On 21 October 2014 the charge from 8 December 2013 was dealt with by way of a supervised bond of twelve months duration. Also on that court date he was called up for the breach of bond in relation to his first drug possession and assault charges, dating from January 2013 - for which was ordered to perform 50 hours of community service. The subject offence was committed three weeks after this court date.
A Justice Health psychiatrist expressed the following opinion in a report dated 3 December 2015: It is likely that Mr Lee was suffering from a depressive disorder at the time of the offence and it is possible that his judgment and ability to think in a rational manner were affected as a result of a depressive illness and stimulant dependence.
At the time of that report he did not "currently present with features that would suggest that he suffers from a mental illness as defined in Chapter III of the Mental Health Act 2007."
Her Honour accepted that "at the time his mental state may have contributed to his offending". It was accepted that this was a factor, together with his drug addiction and "lesser role in the organisation", which reduced his moral culpability. The learned sentencing judge accepted that Mr Lee was remorseful and that his prospects of rehabilitation were good.
A discount of 25% was allowed for Mr Lee's early plea of guilty. For the purposes of determining whether the statutory default ratio of the non-parole period should be varied, her Honour found special circumstances. Namely, Mr Lee's prospects of rehabilitation, his willingness to participate in drug programs and the need for ongoing treatment to continue addressing his mental health issues. The sentence imposed included a non-parole period which was only 55% of the full term.

[8]

Mr Taysavang's ground 1 - the weight of the drug

The argument made on Mr Taysavang's behalf under ground 1 is that the charge to which the plea of guilty was entered did not specify a quantity of the drug and that the plea did not entail an admission that Mr Taysavang had committed the offence with respect to any more than the approximately 54.1 g which he had physically handed over to the UCO. Although the plea of guilty had been entered on the basis of the Agreed Statement of Facts, the effect of which has been summarised at [6] - [11], it was submitted that this did not involve admission to participation in a joint enterprise of which the object had been the entire 82.5 g. Counsel for Mr Taysavang argued that the weight for which he was criminally liable was therefore a fact in issue before her Honour and that she had erred in passing sentence on the basis of the full weight without having made a finding on the issue or, at least, without having given reasons for any finding upon which she may have acted.
Counsel sought to demonstrate that there was an issue in the sentence proceedings about the relevant weight of methylamphetamine by referring to the following submission made to the learned sentencing judge by counsel who had then represented Mr Taysavang: I also note that in relation to Mr Taysavang, his particular supply is for a lesser amount in all the circumstances, just over 60 grams as opposed to the total that is otherwise recorded. Your Honour will note the reason for that in the facts because Mr Taysavang doesn't have any involvement with the initial supply of an amount. … My friend's pointing out the amount found in total but if my friend looks to the fact sheet, it refers to Mr Taysavang supplying only two thirds of the total drugs found.
It is not clear from this submission that counsel intended to be arguing that Mr Taysavang had no criminal responsibility for the total amount, even on the basis that he was party to a joint criminal enterprise pursuant to which the act of Mr Lee delivering the first 28 g to the UCO was attributable to him. This submission is consistent with counsel merely having intended to emphasise that Mr Taysavang's physical actions (his "particular supply") were limited to handling "just over 60 grams".
In any event, whatever issue was intended to be raised on Mr Taysavang's behalf, counsel did not call his client to dispute that he had known of and been concerned with the entire consignment. He did not cross-examine Mr Lee to try to establish through him that the two parts of the transaction were divorced from each other and that Mr Taysavang had not known of or agreed to the delivery of the first 28 g. That left the Agreed Statement of Facts intact. From it the only possible inference was that this was joint enterprise with respect to the entire quantity.
The Court finds no substance in ground 1 and it is rejected.

[9]

Mr Taysavang's ground 2 - moral culpability

With respect to ground 2, asserting that her Honour erred in failing to find Mr Taysavang's moral culpability for the offence was low, the relevant findings of the learned sentencing judge were as follows: I accept for the purpose of sentencing that there was a degree of planning and organisation in relation to the supply of the methylamphetamine, however, I accept that the offender was involved on a limited basis, but do not accept it was unsophisticated or essentially an opportunistic basis. In my view he was part of an organisation to supply drugs. It was submitted that the moral culpability of the offender was low when one has regard to the subjective features of his overall role. I do not agree. The offender whilst he comes from a disadvantaged background and is poorly educated, knew full well what he was doing. His mental health issues are not such that it played any part in the commission of the offence and his motivation was to receive money to fuel his drug habit."
This Court was referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Ingrey v R [2016] NSWCCA 31. In Bugmy v The Queen following statement of principle was made: [44] ... An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
It was sought to extend this principle so as to impute a reduction in moral culpability for the offence of drug supply which is under consideration here. As her Honour found, the offence involved planning and organisation rather than impulsivity. There was nothing in the evidence to suggest that frustration on the part of Mr Taysavang gave rise to unconsidered action on his part. It was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender's family in early childhood.
Contrary to the appellant's submission her Honour's finding that he "knew full well what he was doing" was a cogent reason for not finding any reduction in moral culpability upon this principle. The material before her Honour did not suggest that the care Mr Taysavang had received from his parents up to the age of 5 or from his grandparents over the next 9 years was in any way deficient or that it had predisposed him to impulsive wrongdoing, in the way contemplated by the decision in Bugmy v The Queen.
There was no evidence from which her Honour could have concluded that any psychiatric disorder had been causative of the commission of the offence. Further, his record of recidivism gave rise to the consideration that the sentence imposed would need to afford protection to the community, as her Honour recognised. This factor would operate counter to any consideration of reduced moral culpability, if such had been found. Ground 2 has not been made out.

[10]

Mr Taysavang's ground 3 - degree of injury to the community

Mr Taysavang's point under ground 3 is that because this was a police controlled operation the drugs did not cause harm to the community but fell into the hands of the authorities. It had been put to her Honour that this should be taken into account as a mitigating circumstance under s 21A(3)(a) of the Crimes (Sentencing and Procedure) Act 1999 (NSW) because it had the consequence that "the injury, emotional harm, loss or damage caused by the offence was not substantial". Her Honour rejected the argument, saying "Those who supply drugs can cause an enormous amount of harm to the community".
Considerable caution is required in attempting to apply the mitigating factor of limited harm, as prescribed in s 21A(3)(a), to drug supply offences. The most conspicuous and tangible direct harm to individuals and to the general community is from self administration of prohibited drugs, which tends to be caused by dissemination in retail or single use quantities, lower down the supply chain. The recipients of larger supplies are commonly not users. However supplies in larger quantities cannot be regarded as significantly mitigated, relative to retail supplies, on this account. The gradation of penalties in the Drug Misuse and Trafficking Act indicates quite the contrary.
More indirect and generalised forms of harm flow from supply of prohibited drugs, including the funding of drug manufacturers and importers, the consequent increase in availability of product and the encouragement of consumers which comes from large scale commercialisation of illicit drug distribution. Some of these forms of harm, which arise on the supplier's side, flow from any significant supply for which money is paid, whether the drug reaches an ultimate consumer or not.
A great deal of law enforcement time and resources are (and, in this case, were) taken up in the investigation of criminal drug activity, at significant cost to the community. Moreover, in this case, the $19,500 paid to Kheiopan was not recovered.
If significant weight should be given to the mitigating circumstance prescribed by s 21A(3)(a) in a case where the supplied drugs fall into the hands of a police officer who poses as a purchaser, it is difficult to see why that statutory consideration should have any less weight where the supplied drugs are kept from dissemination because they are seized at the point of arrest in cases not involving police participation in the transaction. To mitigate penalty on that basis would be absurd. This supports the view, expressed by Johnson J in Hristovski v R [2010] NSWCCA 129 at [41] that the prevailing consideration where supply into the community has been foiled is that The [offender making the supply] fully intended that the drugs would be disseminated to the community, and it was no act of the [offender] which stood in the way of such dissemination.
Consistently with these considerations, in cases where a charge of supplying prohibited drugs has arisen out of circumstances in which the product has been acquired by a person cooperating with police, this Court has frequently expressed the view that it is open to a sentencing judge to give no weight or very slight weight to the consideration that the supplied drugs have not been disseminated into the community. The decisions include R v Chan [1999] NSWCCA 103 at [21]; Truong v R [2006] NSWCCA 318 at [26]; R v Gao & Lim [2007] NSWCCA 343; Ly v R [2008] NSWCCA 262 at [27]; Hristovski v R at [41].
In R v Achurch [2013] NSWCCA 186 Johnson J said: [97] These authorities make clear that, although the fact that drugs are not disseminated into the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case. A primary consideration remains that an offender intended to supply the prohibited drug to members of the community, and that it was no act of an offender that resulted in this not happening.
In R v DW [2012] NSWCCA 66 RS Hulme J at [115] - [117] (with whom Hall J agreed) did not accept that the impact of this factor upon sentence should be slight or very minor. Subsequently, in AB v R [2013] NSWCCA 273 Johnson J held (with the concurrence of Hoeben CJ at CL and Bellew J) [92] [The sentencing judge's] finding, as a mitigating factor, that no substantial harm was caused because all the drugs were seized, was very generous to the Applicant. If the drugs had been disseminated into the community, it would have constituted a significant aggravating factor on sentence. However, the absence of an aggravating factor does not translate the matter into a mitigating factor. This Court has observed repeatedly, in the context of offences where police operations mean that the drugs are not actually disseminated into the community, that the moral culpability of an offender is not thereby reduced (see the cases gathered in R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at 166-168 [88]-[100]). This passage was cited and applied in Cam Huynh Giang v R [2017] NSWCCA 25 at [24].
Her Honour was justified in giving no weight to this consideration in the present case and ground 3 is not made out.

[11]

Mr Taysavang's ground 5 - manifestly excessive sentence

Mr Taysavang's sentence of 4 years and 6 months with a non-parole period of 3 years and 4 months took account of a discount for his plea of guilty, of 25%. This implies a starting point of 6 years with a non-parole period of 4 years and 6 months.
Objectively, the supply was carried out for financial gain. The applicant was to be paid $200 for his part. His actions involved co-operation and some planning. He acted as an ad hoc member of a small organized group. His role was not great. He appears to have served the function of stakeholder, keeping two thirds of the quantity at a safe distance until the buyer had shown his money. Mr Taysavang does not appear to have been a principal, in light of the modest amount of remuneration he received and the evident supervisory function exercised by Khieopan. There was no evidence that Mr Taysavang was a regular dealer or supplier at any level or that his participation in this supply was typical of a pattern or course of conduct on his part.
The quantity involved was well over the minimum (5 g) which attracts up to 15 years imprisonment. It was about one third of the maximum quantity to which that range of penalty applies. Quantity of drug is one significant factor in measuring objective seriousness. The applicant's degree of involvement and responsibility for the supply, as described at [55], was of a relatively low order. Although Mr Taysavang took part in what might be regarded as a wholesale transaction, part- way up the distribution chain and above the level of street dealing in 2 g or 1 g or single usage amounts, his criminality is moderated by the limited part he played. A person dealing in smaller quantities on his own account, for profit, in an established business with recurrent sales would usually be regarded as offending in a more serious way, as recognised by the higher maximum penalty (20 years) for offences against s 25A.
On the other hand, subjectively his record entitled him to no lenience. As her Honour remarked, he had been given many opportunities to cease his involvement with drugs and his offending in other respects but he had not taken them. Specific deterrence was a significant consideration.
Even taking into account this last factor, the sentence imposed upon Mr Taysavang was manifestly excessive. The starting point sentence should be 4 years and 8 months, reduced to 3 years and 6 months upon application of the 25% discount. The Court sees no reason to disagree with her Honour's finding that there were no special circumstances. The non-parole period should be 2 years and 7 months.

[12]

The parity ground in each appeal

Mr Taysavang's parity ground does not need to be considered in circumstances where the Court has determined that he must in any event be resentenced. It follows that Mr Lee's parity ground should be upheld. He was entitled to receive a lesser sentence than that imposed upon Mr Taysavang because of his significantly stronger subjective circumstances. There is no distinction between the objective seriousness of the conduct of the two applicants respectively.
Under the parity principle it is recognised that different sentences may be imposed "upon like offenders to reflect different degrees of culpability and/or different circumstances": Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ).
Mr Lee's reduced moral culpability, which her Honour justifiably found, should result in him receiving a lower overall sentence than Mr Taysavang. The fact that Mr Taysavang's criminal record was so heavily adverse to him should also contribute to that result, because it entirely disentitled him from lenience whereas Mr Lee's record was not of that order. Mr Lee's past offending had extended over a shorter period, involving less serious offences committed in extenuating circumstances. It is a record which leaves room for a degree of optimism with respect to his rehabilitation.
In addition, Mr Lee's history of depression and anxiety, his need for treatment, his strongly evidenced desire to quit drugs and the importance of supervision under parole toward that end justified her Honour's finding of special circumstances, which this Court would also make. It is not considered that reduction of the ratio to 55%, as adopted by her Honour, can be justified. That ratio appears to have resulted from her Honour factoring the entirety of the differentiation in subjective circumstances of these two offenders into the application of s 44 of the Crimes (Sentencing Procedure) Act, whereas this Court considers that the differentiation ought to be reflected, in part, in the length of the respective overall sentences.
The Court considers a starting point sentence for Mr Lee would appropriately be 4 years. After discounting for his plea of guilty his sentence should be 3 years with a non-parole period of 2 years.

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