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District Court 14 March 2016

R v HONG, Michael

[2016] NSWDC 388

Drugs
CRIMINAL SUPPLY PROHIBITED DRUG MDMA NUMEROUS FORM 1 OFFENCES SENTENCE UTILITARIAN BENEFIT FOR PLEA OF GUILTY EXTENSIVE TIME SERVED ON REMAND

Citation: R v HONG, Michael [2016] NSWDC 388
Court: District Court of New South Wales
Date: 14 March 2016
Judge(s): Judge S Norrish QC

Background

The offender pleaded guilty in the District Court on 23 September 2015 to two counts of supplying a prohibited drug (methylamphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The first offence occurred on 5 February 2014 at Bellevue Hill, where police found a total of 17.64 grams of methylamphetamine in the offender's possession after stopping a vehicle he was in with a known associate. The second offence occurred on 26 June 2014 at Zetland, where police found 31.28 grams of methylamphetamine on the offender after he initially provided false details.

Both offences were committed while the offender was on bail in relation to earlier charges dating from November 2013, which included drug possession and driving offences eventually dealt with at Burwood Local Court and on appeal to the District Court. The first offence was therefore committed on conditional liberty, and the second was committed while on bail for both the November 2013 matters and the first supply offence.

Five additional matters were listed on a Form 1 to be taken into account when sentencing for the first count. These included possession of another prohibited drug, dealing with the proceeds of crime (cash of $2,830), carrying a knife in a public place, and two counts of possessing prescribed restricted substances.

  • What was the appropriate sentence for each supply offence, having regard to objective seriousness, the quantities involved, and the Form 1 matters?
  • How should the fact that both offences were committed while the offender was on bail be treated as an aggravating factor?
  • How should the sentences be structured to reflect the principles of accumulation, totality, and the utilitarian benefit of the guilty plea?
  • Whether special circumstances existed to justify a reduction in the standard ratio between the non-parole period and the balance of sentence?
  • How should time already served on remand be accounted for in fixing sentence dates?

Decision

Judge Norrish treated the commission of both offences while on bail as a significant aggravating feature, both at common law and under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The second offence was regarded as more serious in objective terms, involving a larger quantity of methylamphetamine (31.28 grams compared to 17.64 grams) and being committed while the offender was on bail for the first supply offence.

The court acknowledged the utilitarian benefit of the guilty plea, entered on 23 September 2015, and applied a discount accordingly. The offender had spent an extensive period on remand, a factor the court incorporated into the structuring of commencement dates for each sentence. The court also took into account the sentences of imprisonment imposed by the District Court on appeal from the Burwood Local Court, accepting that those terms were imposed because the offender was already in custody and would not otherwise have appealed.

Judge Norrish applied the principle of totality to ensure the combined effect of the sentences was not disproportionate to the overall criminality. The court found special circumstances existed, justifying a departure from the standard non-parole period ratio, to allow for an adequate period of supervision on parole. The effective non-parole period was set at one year and ten months, with the offender noted to be eligible for release to parole approximately one month after sentencing. The balance of sentence was one year and five months.

Orders Made

• Conviction on Count 2
• Sentence of imprisonment with non-parole period of 10 months commencing 23 June 2015, expiring 22 April 2016
• Balance of sentence of 1 year 5 months, expiring 22 September 2017
• Eligibility for release to parole from 22 April 2016
• Effective non-parole period of 1 year 10 months
• Forfeiture orders in accordance with the short minutes of order provided by the Crown

The following outcomes are apparent from the judgment:

  • Sentences imposed on each of the two counts of supplying a prohibited drug, with accumulation structured to reflect totality principles
  • An effective non-parole period of one year and ten months
  • A balance of sentence of one year and five months
  • Forfeiture orders made in respect of the $2,830 cash, in accordance with short minutes of order provided by the Crown

Key Takeaways

  • Committing a drug supply offence while already on bail for an earlier drug supply offence constitutes a significant aggravating factor under both common law and s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Where an offender's earlier appeal to a higher court and resulting imprisonment terms were a direct consequence of being in custody for current offences, those terms are a relevant consideration in structuring accumulated sentences.
  • The principle of totality requires a sentencing court to assess whether the combined effect of accumulated sentences is proportionate to the offender's overall criminality, even where individual sentences are each independently justified.
  • Special circumstances, within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW), can justify reducing the non-parole period below the standard ratio where adequate post-release supervision is warranted.
  • A guilty plea attracts a utilitarian discount on sentence, and extensive pre-sentence custody on remand is a material factor in fixing the commencement dates of individual sentences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Attorney General's Application No. 1 of 2002 (2002) NSWLR 147
- Fayd'herbe v R [2007] NSWCCA 20
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Osenkowski (1982) 30 SASR 212
- Pearce v R (1998) 194 CLR 610
- Polley v R [2015] NSWCCA 247
- R v Bloomfield [1998] NSWSC 342
- R v Carrion [2000] NSWCCA 191
- R v Clark (NSWCCA, unreported, 5 March 1990)
- R v Hammoud [2000] NSWCCA 540
- R v Henry (1999) 46 NSWLR 346
- R v Lattouf [1999] NSWSC 1382
- R v Thomson; R v Houlton (2000) 49 NSWLR 309
- Regina v Gip; Regina v Ly [2006] NSWCCA 115
- Regina v Gu [2006] NSWCCA 104