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District Court 6 September 2019

R v Ng

[2019] NSWDC 759

Drugs

Citation: R v Ng [2019] NSWDC 759
Court: District Court of New South Wales
Date: 6 September 2019
Judge: M L Williams SC DCJ

Background

The offender, a 75-year-old man who had emigrated from Malaysia to Australia in 1963, pleaded guilty at an early opportunity to a charge of supplying a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985. Aside from a minor traffic matter in 1980, he had no prior criminal history. He had worked in the restaurant industry and, according to the psychologist's report, had not been a drug user himself.

The principal charge related to the supply of 249 grams of methylamphetamine between June and October 2017. Police intercepted his mobile phone communications over this period and found he was regularly selling methylamphetamine, using coded language, to multiple customers. He made a net profit of approximately $17,000 from gross sales of around $49,800 during the principal offending period.

Three additional matters were placed on a Form 1 (offences taken into account at sentencing but not formally sentenced): dealing with suspected proceeds of crime ($4,395), possessing 7.14 grams of cocaine, and supplying a further 31.3 grams of methylamphetamine after his initial police contact. In total, he supplied approximately 280 grams of methylamphetamine across the entire period. He made numerous candid admissions to police and cooperated in identifying customers and his supplier.

  • Whether a full-time custodial sentence was required in light of the objective seriousness of sustained drug supply, despite compelling subjective circumstances.
  • How to weigh the offender's advanced age, serious health conditions (including cardiac disease and prostate cancer), and cognitive decline against the sentencing purposes of general and specific deterrence.
  • Whether the offender's poor health warranted mitigation of the sentence, having regard to the principles in Leighton v R [2010] NSWCCA 280.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence.
  • The appropriate discount for an early plea of guilty.

Decision

The court accepted that the offender presented a powerful subjective case. He was elderly, a first-time offender in any meaningful sense, remorseful, cooperative with police, and in significantly poor health, including serious cardiac comorbidities and treated prostate cancer. His mental faculties were also in decline. A 25% discount was applied to reflect the utilitarian value of his early guilty plea.

The court considered the principles from Leighton v R, which provide that ill health mitigates sentence only where imprisonment will bear more heavily on the offender by reason of that ill health, or where there is a serious risk of imprisonment having a gravely adverse effect on health. His Honour found that, while imprisonment would be an inconvenience, there was no suggestion that the Justice Health system was incapable of meeting the offender's treatment needs. Accordingly, health considerations did reduce the sentence to some degree but did not displace the need for imprisonment.

On the question of general deterrence, the court acknowledged that the offender's age and circumstances made him a less appropriate vehicle for general deterrence than a younger offender might be. However, his Honour applied the approach confirmed in Parente v R [2017] NSWCCA 284: the primary sentencing purposes in serious drug supply cases include deterrence, both general and specific, and the prevention of crime. Given the sustained nature of the supply over several months, involving multiple customers and generating substantial profit, the court concluded that no alternative to full-time custody was appropriate.

Special circumstances were found, resulting in a non-parole period that is proportionally shorter than the standard one-third ratio. This reflects the court's recognition that a longer period on parole supervision would better support the offender's rehabilitation and management of his health needs on release.

Orders Made

  • The offender was convicted of the principal offence.
  • A sentence of imprisonment of 3 years and 6 months was imposed, commencing 5 September 2019 and expiring 4 March 2023.
  • A non-parole period of 15 months was set, expiring 4 December 2020, with the offender eligible for release to parole on that date.
  • Special circumstances were found.
  • Orders made by consent pursuant to the Confiscation of Proceeds of Crime Act 1989, in accordance with Short Minutes of Order filed 6 September 2019.
  • The drugs were ordered to be destroyed.
  • Back-up charges (sequences 4, 5 and 7) were withdrawn and dismissed.

Key Takeaways

  • A sentence of full-time imprisonment remained appropriate for sustained, commercial-scale methylamphetamine supply even where an offender is elderly, seriously ill, cognitively declining, and has an otherwise clean record. The objective seriousness of the offending and the purposes of deterrence under s 3A of the Crimes (Sentencing Procedure) Act 1999 carried significant weight.
  • Under the principles in Leighton v R, poor health reduces a sentence only where incarceration will bear more heavily on the offender because of that health, or where there is a serious risk of gravely adverse health consequences. The availability of Justice Health services was relevant to that assessment.
  • An early guilty plea attracted a 25% utilitarian discount, consistent with sentencing principles applied across the District Court and Court of Criminal Appeal.
  • Finding special circumstances allowed the court to depart from the standard non-parole period ratio, producing a longer supervisory period on parole suited to the offender's rehabilitation and ongoing medical management.
  • The court's treatment of Form 1 matters followed the approach endorsed in Attorney General's Application No. 1 (2002) 56 NSWLR 146, with those offences taken into account in setting the overall sentence rather than attracting separate penalties.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- Casella v R [2019] NSWCCA 201
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Leighton v R [2010] NSWCCA 280
- Parente v R [2017] NSWCCA 284
- R v Fangaloka [2019] NSWCCA 173
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Imbornone v R [2017] NSWCCA 144
- R v Qutami (2001) 127 A Crim R 396