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District Court 18 May 2018

R v Zhang

[2018] NSWDC 481

Drugs
CRIMINAL SENTENCE FORM 1 MATTER OFFENDER’S ROLE LIMITED ASSISTANCE SUBJECTIVE MATTERS

Citation: R v Zhang [2018] NSWDC 481
Court: District Court of New South Wales
Date: 18 May 2018
Judge(s): King SC DCJ

Background

The offender, Zhengyi Zhang, appeared for sentencing after pleading guilty to supplying a prohibited drug in a quantity not less than a large commercial quantity, specifically 1,996.9 grams of methylamphetamine. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. A separate charge of knowingly participating in a criminal group and directing activities was taken into account on a Form 1 (that is, a document acknowledging additional charges to be considered when determining the overall sentence, without a separate conviction being recorded).

The offending arose from a police controlled operation commenced in December 2014, targeting co-accused Li Wang and his drug supply network. On 14 May 2015, Zhang and three co-offenders met at a Zetland shopping centre and subsequently attended a Moore Park carpark, where a transaction involving two kilograms of methylamphetamine was to be completed with an undercover police operative.

Zhang was observed directing the movements of others during the operation, retrieving bags containing the drug, and entering the undercover operative's vehicle during the transaction. Police intervened and arrested the offenders at the scene.

  • What was Zhang's precise role and level of culpability within the drug supply operation?
  • What weight should be given to Zhang's limited cooperation, including a statement made for use in the prosecution of a co-offender?
  • Whether special circumstances existed to justify a departure from the statutory relationship between the non-parole period and the balance of term.
  • The appropriate discount to apply for the plea of guilty and any assistance provided to authorities.

Decision

The court found that Zhang played a significant and active role in the transaction. His own statement, made for the purpose of the prosecution of co-offender Junjie Liang and adopted by Zhang in his evidence-in-chief, confirmed that he had arranged for the delivery of the methylamphetamine and had coordinated the logistics of the supply. The court noted that while Zhang could not be characterised as in control of the entire transaction, he was clearly a facilitator with direction over other participants.

The court considered submissions that Zhang's role was somewhat less than that of co-offender Si Ji Zhang, as the characterisation of both as equally "in control" of the transaction appeared in agreed facts from the co-offender's proceedings but not in Zhang's own agreed facts. The court took a measured approach to this distinction in assessing culpability.

On subjective matters, the court considered Zhang's background and time already spent in custody from the date of arrest. The court determined that a discount of slightly more than 30 per cent was appropriate, applied to a starting total term of 11 years, producing a final term of seven years and eight months. A modest adjustment of three months below the statutory non-parole period ratio was made on the basis of special circumstances, to allow for a slightly extended parole period to assist Zhang's reintegration.

Orders Made

  • Convicted of supply prohibited drug, not less than a large commercial quantity (1,996.9 grams of methylamphetamine).
  • Sentenced to a total term of imprisonment of seven years and eight months.
  • Non-parole period of five years and six months, commencing 14 May 2015, with first eligibility for parole on 13 November 2020.
  • Balance of term: two years and two months, expiring 13 January 2023.
  • The Form 1 matter (knowingly participate in a criminal group and direct activities) taken into account in the overall sentence.

Key Takeaways

  • A statement made by an offender under a promise from the Director of Public Prosecutions that it would not be used against them may nonetheless be taken into account in sentencing where the offender voluntarily adopts it as evidence-in-chief.
  • The District Court drew a careful distinction between an offender's role as a facilitator in control of certain aspects of a transaction and full control of the entire operation, treating that distinction as relevant to the overall culpability assessment.
  • Agreed facts from a co-offender's separate proceedings do not automatically bind the court in the offender's own sentencing, particularly where the relevant characterisation does not appear in that offender's own agreed facts.
  • A discount of slightly over 30 per cent was applied to the head sentence to reflect the plea of guilty and the limited assistance provided, with the court calculating this transparently from a stated starting point.
  • Special circumstances were found to exist, but the resulting reduction in the non-parole period was confined to three months below the statutory ratio, reflecting the court's view that a parole period of two years and two months was sufficient for post-release reintegration.

Legislation and Cases Referenced

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

Cases:
- Bugmy v The Queen [2013] HCA 37
- R v Thomson and Houlton (2000) 49 NSWLR 383