Citation: R v Ha & Ors [2019] NSWDC 572
Court: District Court of New South Wales
Date: 26 July 2019
Judge(s): Bennett SC DCJ
Background
Four offenders appeared for sentencing on charges of knowingly taking part in the supply of cannabis, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. Three of the offenders (Vu, Le, and Tran) operated a drug supply syndicate that packaged cannabis and distributed it across Australia via Australia Post. Customers placed orders through Dark Web marketplaces and paid using Bitcoin, a digital currency.
The fourth offender, Ha, acted as the wholesale supplier of cannabis to the syndicate. She received payment in traditional currency and did not participate directly in the online ordering or distribution operations. Police uncovered the syndicate in December 2017 through an investigation into Ha, which involved the interception of her mobile phone communications.
All four offenders pleaded guilty at the Local Court stage and were therefore entitled to a 25% sentence discount. The factual matrix before the court was described as quite complex, set out across a 12-page agreed statement of facts signed by each offender and the Crown.
Legal Issues
- What sentences were appropriate for each offender, taking into account the objective seriousness of the offences and each offender's subjective circumstances?
- How should the 25% guilty plea discount be applied to the final sentences?
- Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of the sentence.
- How should the Form 1 offence (possession of 5.9 grams of cannabis) against Tran affect her sentence for the principal supply charge?
- Whether fines should be imposed in addition to terms of imprisonment.
Decision
His Honour applied a 25% discount to each sentence, reflecting the utilitarian value of the early guilty pleas. The court assessed the objective and subjective circumstances of each offender individually, including the degree of contrition and remorse demonstrated and prospects for rehabilitation. All four offenders were found to have shown genuine remorse, and those who gave evidence were assessed as reliable and credible.
The operation was characterised as sophisticated and organised. Ha's role as a wholesaler placed her at a higher tier of culpability than the others, and because the quantity of cannabis involved in her offence exceeded the large commercial quantity (100 kilograms), she faced a higher maximum penalty of 20 years imprisonment. The other three offenders faced a maximum of 15 years. The court declined to impose fines on any offender, finding that the terms of imprisonment were sufficient punishment.
Regarding Tran's Form 1 matter (possession of 5.9 grams of cannabis), the court applied the principles from Attorney General's Application No 1 of 2002, noting that Form 1 offences increase the weight given to personal deterrence and community retribution for the full extent of the offender's conduct. The Crown conceded, and the court accepted, that the Form 1 offence had only marginal impact on Tran's sentence for her principal supply charge.
For Ha specifically, the court found special circumstances warranting a longer parole period than the statutory default. Relevant factors included that it was her first time in custody, that she had physical health conditions, and that her prospects for rehabilitation would benefit from extended supervision in the community. Her sentence was backdated to the date she entered custody on 2 July 2018. The sentences for Le and Tran, who each faced two charges, were imposed as aggregate sentences.
Orders Made
For Ha (the only offender whose final sentence appears in the provided text):
- Convicted of knowingly taking part in the supply of a large commercial quantity of cannabis.
- Non-parole period of 3 years and 6 months, commencing 2 July 2018, expiring 1 January 2022.
- Head sentence of 6 years and 9 months, expiring 1 April 2025.
- By consent, cash of approximately $3,500 seized at 139 Kingsland Road, Bexley North on 2 July 2018 forfeited to the State under s 18(1) of the Confiscation of Proceeds of Crime Act 1989.
The sentences for Vu, Le, and Tran are referenced in the judgment but their final orders are not reproduced in the text provided.
Key Takeaways
- A 25% guilty plea discount applied in each case, calculated on the sentence that would otherwise have been imposed after synthesising both objective and subjective factors, including remorse, contrition, and rehabilitation prospects.
- Under the Drug Misuse and Trafficking Act 1985, supply of a quantity exceeding the large commercial threshold (100 kilograms for cannabis) attracts a higher maximum penalty of 20 years imprisonment compared to the 15-year maximum for the commercial quantity threshold.
- Form 1 offences, even minor ones such as possession of a small quantity of cannabis, increase the sentence for the principal offence by adding weight to personal deterrence and the community's entitlement to retribution, though the extent of that increase is proportionate to the seriousness of the Form 1 matter.
- Special circumstances justifying an extended parole period were established where an offender was serving a first custodial sentence, had physical health conditions, and had rehabilitation prospects best supported by community supervision.
- The District Court declined to impose fines alongside terms of imprisonment, finding the custodial component sufficient punishment across all four offenders in the circumstances of this case.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 4 Division 1A and s 37
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 (principles governing Form 1 offences)
- Bugmy v The Queen [2013] HCA 37
- R v Qutami [2001] NSWCCA 353