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District Court 16 February 2018

R v Lin

[2018] NSWDC 286

Drugs
CRIME SENTENCE SUPPLY A PROHIBITED DRUG METHYLAMPHETAMINE COMMERCIAL QUANTITY EVIDENCE OF CONTRITION

Citation: R v Lin [2018] NSWDC 286
Court: District Court of New South Wales
Date: 16 February 2018
Judge: Judge S Norrish QC

Background

The offender was sentenced for supplying 999.67 grams of methylamphetamine at a hotel in Pyrmont on 18 November 2014. The amount was just under the threshold for a large commercial quantity but clearly constituted a commercial quantity, carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years.

Police were investigating a Sydney-based drug syndicate. The offender attended a hotel room, in company with a co-offender, and supplied the drug to an undercover police officer for $150,000. The Crown's agreed statement of facts conceded that his role did not exceed that of a delivery man: he carried both the drugs and the cash, and took $110,000 from the transaction on behalf of others. The primary transactions were conducted by his co-offender, Nguyen.

The offender had separately been arrested in May 2015 and sentenced by Judge Townsden at Parramatta District Court on 1 July 2016 for a later offence. The current sentencing therefore required consideration of accumulation with that existing sentence, parity with co-offenders, and a range of subjective factors.

  • What discount for the utilitarian benefit of a guilty plea was appropriate, given the plea was entered only after a voir dire and the matter had been listed for trial?
  • How should the objective seriousness of the offending be assessed, having regard to the offender's role as a courier and the drug quantity approaching the large commercial threshold?
  • Whether the offence constituted part of "organised criminal activity" as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999.
  • How should the sentence be structured to achieve parity with co-offenders sentenced by other judges, and how should it accumulate with the existing sentence?
  • Whether special circumstances existed to justify a non-parole period that was a lower proportion of the total sentence than the statutory default.

Decision

Judge Norrish applied a 10% discount for the utilitarian benefit of the guilty plea, following R v Thomson and Houlton (2000). The plea was entered only after a voir dire had been conducted and the matter had been listed for trial. The judge acknowledged the plea as evidence of contrition, but noted that in other circumstances the discount could have been lower.

On objective seriousness, the judge placed the offending below the middle range, primarily because of the offender's limited role as a courier. The quantity was notable (close to the large commercial threshold), and the offender was entrusted with $110,000 in cash, reflecting a degree of responsibility within the syndicate. These features prevented the offending from being assessed at the lowest level.

The judge found that the offence formed part of organised criminal activity, which constituted a statutory aggravating factor. The court drew on sentencing remarks by Traill DCJ concerning the co-offender Nguyen, and considered parity principles in fixing the overall sentence. The offender's drug dependency, language difficulties, and prospects for rehabilitation were treated as relevant subjective matters.

Special circumstances were found to exist, warranting a departure from the statutory relationship between the non-parole period and the balance of term. The judge's reasons for this finding included the partial accumulation of sentences, the need for an extended supervision period, and the aim of assisting the offender's reintegration and addressing drug dependency.

Orders Made

  • Convicted of supply of a commercial quantity of methylamphetamine (999.67 grams).
  • Non-parole period of two years imprisonment, commencing 13 March 2017 and expiring 12 March 2019 (extending the existing non-parole period by one year).
  • Balance of sentence of two years and six months imprisonment, expiring 12 September 2021.
  • Finding of special circumstances recorded.

Key Takeaways

  • A guilty plea entered only after a voir dire and after the matter had been listed for trial attracted a 10% utilitarian discount, at the lower end of the available range, reflecting the limited procedural benefit actually derived.
  • Where a drug offender's role is confined to that of a courier or delivery man, the sentencing court may place objective seriousness below the midpoint, even where the quantity approaches the large commercial threshold.
  • Participation in a structured drug distribution syndicate can constitute "organised criminal activity" as a statutory aggravating factor, even for a lower-level participant such as a courier.
  • Parity principles required the District Court to have regard to sentences imposed on co-offenders by other judges, ensuring consistency across related criminal activity.
  • Special circumstances justifying a reduced non-parole period proportion can arise from the cumulative operation of multiple sentences, the need for extended post-release supervision, and the rehabilitation needs of an offender with drug dependency and language difficulties.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 54A, 54B

Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Hammoud v R [2000] NSWCCA 540
- Jimmy v R [2010] NSWCCA 60
- Lowe v R (1984) 154 CLR 606
- Mill v R (1988) 166 CLR 59
- Muldrock v R (2011) 244 CLR 120
- Pearce v R (1998) 194 CLR 610
- Postiglione v R (1997) 189 CLR 295
- R v Parente [2017] NSWCCA 284
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Todd [1982] 2 NSWLR 517
- Robertson v R [2017] NSWCCA 205