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District Court 23 June 2017

R v Zhang, S

[2017] NSWDC 455

Drugs
CRIMINAL SENTENCE FORM 1 MATTER ROLE OF OFFENDER OFFENCE COMMITTED WHILST ON PAROLE SUBJECTIVE MATTERS

Citation: R v Zhang, S [2017] NSWDC 455
Court: District Court of New South Wales
Date: 23 June 2017
Judge(s): King SC DCJ

Background

The offender, a man aged 25 at the time of sentencing, faced a single charge of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, specifically 1,996.9 grams of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. This quantity was just short of twice the large commercial quantity threshold of one kilogram. He also asked the court to take into account, on a Form 1, a related charge of knowingly participating in a criminal group and directing any of its activity, contrary to section 93T(1A) of the Crimes Act 1900.

The offending occurred on 14 May 2015 at a car park in Moore Park, Sydney. Police, conducting an undercover operation, observed the offender playing an active coordinating role in a staged drug transaction involving co-offenders. Surveillance showed the offender directing others, liaising with an undercover operative posing as a buyer, and controlling movement of the drugs, which were concealed in brown bags and ultimately handed over to the operative.

The offender had a relevant prior criminal history, including a supply of prohibited drugs conviction dealt with in March 2015 for conduct in August 2014. Critically, the present offences were committed while the offender was on parole from that earlier sentence.

  • What objective seriousness should be attributed to the principal offence, given the quantity of methylamphetamine and the offender's role in the transaction?
  • How should the Form 1 offence (directing criminal group activity) be factored into the sentencing exercise?
  • What weight should be given to subjective factors, including age, drug dependency, rehabilitation efforts, and prospects of reoffending?
  • How should the sentence be structured in relation to the revoked parole period, given the offending occurred while the offender was on parole?
  • Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the balance of term.

Decision

King SC DCJ assessed the objective seriousness of the principal offence as at least mid-range. The offender's role was described as significant and substantial: he actively directed others, coordinated the handover, and acted as a facilitator alongside a co-offender at the point of exchange. The Form 1 offence reinforced the characterisation of the offender as someone exercising a directing role within a criminal group.

His Honour acknowledged the subjective materials tendered on the offender's behalf, including a presentence report, a psychological report, TAFE completion certificates, and character letters from a chaplain, a community worker, and the offender's grandmother. The offender did not give evidence. While the court noted the offender's youth (25 years old) and some positive steps taken in custody, it found that ongoing drug use in custody meant it could not find good prospects of rehabilitation or a low risk of reoffending, though it did not exclude the possibility of rehabilitation entirely.

On the question of parole, the court found it inappropriate to make the sentence concurrent or partly concurrent with the revoked parole period. The sentence was made to run consecutively, commencing 3 October 2015. His Honour also expressly declined to find special circumstances based on the interaction between the new sentence and the revoked parole term, rejecting the argument that such circumstances arose from the need to re-establish the statutory relationship between time in custody and time on parole.

Orders Made

  • The offender was convicted of knowingly taking part in the supply of a large commercial quantity of methylamphetamine (1,996.9 grams).
  • The Form 1 offence (knowingly participating in a criminal group and directing activity) was taken into account in sentencing.
  • Non-parole period of six years and nine months, commencing 3 October 2015, with first eligibility for parole on 2 July 2022.
  • Balance of term of two years and three months, giving a total sentence of nine years, expiring 2 October 2024.
  • No special circumstances were found.
  • The sentence was ordered to run consecutively to, not concurrently with, the revoked parole period.

Key Takeaways

  • The District Court assessed the offender's role as at least mid-range in objective seriousness where the quantity approached twice the large commercial quantity threshold and the offender was observed directing co-offenders and coordinating the drug exchange.
  • A Form 1 matter can reinforce the characterisation of an offender's role in the principal offence; here, the criminal group participation charge was consistent with, and compounded, the findings on the offender's directing function.
  • Committing a serious drug offence while on parole is a significant aggravating factor: the court declined to make the new sentence concurrent or partly concurrent with the revoked parole period, treating that outcome as deliberate and expressly intended.
  • Positive steps taken in custody, including educational courses and religious engagement, do not automatically produce a finding of good rehabilitation prospects, particularly where drug use has continued during custodial remand.
  • Under the Crimes (Sentencing Procedure) Act 1999, the need to re-establish the statutory ratio between the non-parole period and the balance of term does not, without more, constitute a special circumstance justifying a departure from the standard formula.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- Callaghan v R [2006] NSWCCA 58
- R v Fernando [2002] NSWCCA 28
- R v Huynh [2003] NSWCCA 239
- R v McVeety [2002] NSWCCA 344
- R v Moffatt (1990) 20 NSWLR 114