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District Court 23 June 2017

R v Wang

[2017] NSWDC 457

DrugsFraud & dishonesty
CRIMINAL SENTENCE FORM 1 MATTERS KNOWINGLY DEAL WITH PROCEEDS OF CRIME OFFENDER’S ROLE AGGREGATE SENTENCE

Citation: R v Wang [2017] NSWDC 457
Court: District Court of New South Wales
Date: 23 June 2017
Judge(s): King SC DCJ

Background

The offender faced sentencing on multiple serious drug and criminal organisation offences arising from two connected periods of offending. The first offence concerned the supply of 31.64 grams of methylamphetamine on 31 October 2014, discovered when police executed a search warrant at the offender's Haymarket apartment. Inside the unit, officers also found substantial quantities of cash (totalling approximately $94,000), numerous mobile phones, and drug paraphernalia.

The offending had been uncovered through a joint investigation by the NSW Crime Commission and the Police Force Organised Crime Squad into money laundering. On the evening of 30 October 2014, police first located the offender behaving suspiciously near another unit under investigation. A subsequent search of his own apartment revealed the drugs, cash, and what appeared to be infrastructure consistent with participation in organised criminal activity.

The offender was released on bail following his arrest in October 2014. He then committed further and more serious offences while on bail, including supply of methylamphetamine in a large commercial quantity (1,497.16 grams), and additional offences relating to knowingly participating in a criminal group and dealing with proceeds of crime.

  • What discount, if any, should apply to a guilty plea entered on the first day of a listed trial, more than two years after committal?
  • How should an aggregate sentence be structured across multiple offences of varying seriousness, including one carrying a maximum of life imprisonment?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999
  • How to treat Form 1 matters (offences taken into account at sentencing without separate conviction) in the aggregate sentencing exercise
  • What weight to give to the offender's subjective circumstances alongside the objective seriousness of the offending

Decision

His Honour imposed an aggregate sentence covering all matters. The principal offence was the supply of a large commercial quantity of methylamphetamine (1,497.16 grams), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The quantity involved was approximately one and a half times the large commercial quantity threshold of one kilogram, placing the offence well into the most serious category under the Drug Misuse and Trafficking Act 1985.

On the question of the guilty plea, the court allowed a discount of only 5%. The plea was entered on the first day of trial, after committal proceedings concluded in December 2015. The court acknowledged that a discount remained appropriate for the utility of the plea in saving court time and resources, but the lateness of the plea severely limited the extent of that discount.

The court declined to find special circumstances that would justify reducing the proportion of the sentence to be served before parole eligibility. His Honour noted that the resulting parole period of three years and six months was itself substantial, exceeding the maximum supervision period under the regulations by six months. The court also took into account the offender's prior dealings with proceeds of crime and the fact that the further offending occurred while on bail, which counted significantly against him.

Confiscation orders were made in respect of cash found at the apartment and on the offender's person, as well as the mobile phones, SIM cards, and a Mercedes-Benz motor vehicle. The court observed that the vehicle, depending on its model, might suggest the offender had been living a lifestyle of considerable luxury, though no specific valuation was available at the time of sentencing.

Orders Made

  • Aggregate custodial sentence imposed (specific term not reproduced in the available text)
  • No finding of special circumstances
  • Forfeiture to the State of approximately $94,120 cash found at the apartment on 31 October 2014, pursuant to s 18(1)
  • Forfeiture to the State of approximately $2,050 found on the offender's person on 30 October 2014, pursuant to s 18(1)
  • Forfeiture to the State of mobile phones, SIM cards, and associated packaging found at the apartment, pursuant to s 18(1)
  • Forfeiture to the State of the proceeds of sale of a Mercedes-Benz 250 motor vehicle (registration BSA-64G), together with all accrued interest, pursuant to s 18(1)
  • The freezing notice over the proceeds of the Mercedes-Benz sale set aside forthwith, pursuant to s 42Q(1)
  • Certain charges withdrawn (as noted in transcript)

Key Takeaways

  • A guilty plea entered on the first day of trial, following committal more than two years earlier, attracted only a 5% discount: the court acknowledged the utility of sparing witnesses and saving court resources, but the lateness of the plea significantly reduced the available discount.

  • Supply of methylamphetamine in a large commercial quantity (here, 1,497.16 grams against a threshold of one kilogram) carried a maximum of life imprisonment and a 15-year standard non-parole period under the Drug Misuse and Trafficking Act 1985, placing it among the most serious drug offences in NSW.

  • Offending committed while on bail for an existing drug supply charge was treated as a substantial aggravating factor.

  • The District Court declined to find special circumstances where the resulting parole period was already three years and six months, which his Honour regarded as a meaningful and adequate supervisory period.

  • Where an expert certificate on encrypted mobile phone technology (PGP-encrypted BlackBerrys) was tendered but no corresponding charge was laid, the court declined to draw adverse inferences from that material: conduct that is not charged, and may not even be unlawful, cannot be treated as an aggravating feature on sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 18(1), 32, 42Q(1)

Cases
- Pearce v The Queen [1998] HCA 57
- R v Richards (1981) 2 NSWLR 464
- R v Thomson; R v Houlton (2000) 49 NSWLR 383