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District Court 30 April 2020

R v Michael Deng

[2020] NSWDC 490

DrugsFraud & dishonestyFirearms & weaponsPublic order & justice offences

Citation: R v Michael Deng [2020] NSWDC 490
Court: District Court of New South Wales
Date: 30 April 2020
Judge: Hoy SC DCJ

Background

The offender, aged 35 at the time of sentence, appeared before the District Court having pleaded guilty to eight substantive counts spanning offences committed in 2011, 2012, and 2013. The charges included drug supply (including a commercial quantity of GBL), dishonestly obtaining a financial advantage by deception, failing to appear on bail, a police pursuit, possession of an unauthorised pistol, and dealing with suspected proceeds of crime. A number of additional offences were taken into account on Form 1.

The offender's criminal history was extensive, including prior convictions in New South Wales, Tasmania, and Western Australia. Most significantly, he had already served a Western Australian sentence of seven and a half years imprisonment (with a non-parole period of five and a half years) for serious drug offences, commencing on 12 February 2014. He was released to parole from that sentence on 27 August 2019 and subsequently extradited to New South Wales to face sentence for the present matters.

A further complication arose from a pre-existing good behaviour bond imposed by the District Court in New South Wales, which the offender had breached. At the time he was given a second chance on that bond, he was actively committing the 2012 offences before the court.

  • How to apply the principle of totality when sentencing for NSW offences where a significant interstate sentence has already been served
  • Whether and how to accumulate or adjust sentences across the three tranches of offences
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence
  • What weight to give to evidence of significant rehabilitation during the WA custodial period
  • How to deal with the breach of the pre-existing NSW good behaviour bond

Decision

Hoy SC DCJ assessed the objective seriousness of each offence by reference to the applicable maximum penalties and, where relevant, the standard non-parole periods. The court noted that maximum penalties and standard non-parole periods serve as legislative guideposts, and that there must be reasonable proportionality between the sentence and the circumstances of the individual offence.

On the question of totality, the court grappled with the interaction between the NSW offences and the prior WA sentence already served. The judgment drew on the principles in Mill v R and Postiglione v The Queen, as well as more recent Court of Criminal Appeal authority, to ensure the aggregate sentence was not crushing and reflected the offender's overall criminality in a proportionate way.

The court found that special circumstances existed, warranting a greater proportion of the sentence available for parole supervision. This finding was driven principally by the offender's significant rehabilitation during his WA custodial period. Evidence before the court included completion of an addictions program, vocational training, and high-risk work licences, as well as a clinical psychologist's report and the offender's own evidence. The court noted the absence of any disciplinary incidents in custody in either Western Australia or Tasmania, and only two minor matters in NSW custody from over a decade ago.

As to the bond breach, the court confirmed the breach was made out, revoked the bond, and recorded a conviction. Because any consequent penalty would be subsumed by the substantive sentences, the Crown sought and the court imposed no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Bond breach confirmed and bond revoked
  • Offender convicted of the bond breach offence
  • No further penalty imposed on the bond breach, pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999
  • All section 166 matters not otherwise dealt with withdrawn and dismissed by consent on the Crown's application

(Note: The specific head sentences and non-parole periods for the eight substantive counts were set out in the full judgment but were not reproduced in the text provided for this summary.)

Key Takeaways

  • The District Court applied the totality principle to ensure that the aggregate NSW sentence, viewed alongside the lengthy WA sentence already served, did not result in a crushing or disproportionate overall punishment across jurisdictions.
  • Special circumstances were found to justify an extended parole period, with the court treating demonstrated rehabilitation during interstate custody as a significant factor in favour of the offender.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction without imposing any further penalty where the circumstances render additional punishment unnecessary, including where a consequential order would be subsumed by weightier substantive sentences.
  • A prior good behaviour bond breach does not automatically attract additional punishment at a later sentencing proceeding, particularly where the sentencing exercise for the substantive matters already addresses the offender's overall criminality.
  • Maximum penalties and standard non-parole periods were treated as legislative guideposts rather than prescriptive outcomes, to be weighed alongside objective seriousness, subjective circumstances, and established sentencing principles.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), s 51(1)
- Crimes Act 1900 (NSW), ss 51B(1), 192E, 193B(3), 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 22, 22A, 23, 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 24A(1), 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Brown (aka Davis) v The Queen [2020] VSCA 60
- GC v R [2019] NSWCCA 241
- Mill v R (1988) 166 CLR 59
- Porter v R [2019] NSWCCA 117
- Postiglione v The Queen (1990) 189 CLR 295
- R v Bui [2018] SASCFC 19
- R v Despotovski [2020] NSWDC 110
- R v Elias (2013) 248 CLR 483
- R v Harrison (1990) 48 A Crim R 197
- R v M.A.K, R v M.S.K. [2006] NSWCCA 381
- R v Todd (1982) 2 NSWLR 517