Citation: R v Tang [2020] NSWDC 96
Court: District Court of New South Wales
Date: 13 March 2020
Judge: Haesler SC DCJ
Background
The offender, a Vietnamese-born man who had lived in Australia since the age of 16, was arrested in February 2019 at a Sydney casino. He was charged with commercial supply of cannabis leaf under the Drug Misuse and Trafficking Act 1985, arising from 21 separate transactions between June and August 2018. His co-accused, a downline supplier based in the Illawarra region, was separately listed for sentencing.
Rather than proceed on 21 individual charges, the prosecution and defence agreed to consolidate the transactions into a single rolled-up charge under s 25(2) of the Drug Misuse and Trafficking Act 1985. The total quantity supplied across all transactions fell within the commercial supply range of 25 to 100 kilograms. The offender pleaded guilty and had been in custody since his arrest.
The offender had no prior criminal history. He had worked in unskilled employment, had limited English, and carried significant gambling debts. He was the father of three young children and was supported in the proceedings by his father and wife.
Legal Issues
- Whether the rolled-up charge approach was appropriate for multiple discrete drug supply transactions.
- What role the offender played in the supply network, and how that role should be characterised for sentencing purposes.
- Whether gambling debts constituted a mitigating factor.
- How family hardship should be weighed in the sentencing exercise.
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
- What sentence appropriately reflected the objective seriousness of commercial cannabis supply alongside the offender's personal circumstances.
Decision
Haesler SC DCJ confirmed that the rolled-up charge approach was appropriate, consistent with the Court of Criminal Appeal's guidance in Hamzy, Jadron, and Cicciarello. Because the use of multiple transactions is implicit in a rolled-up commercial supply charge, the court did not separately aggravate the sentence under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 for the multiplicity of offences.
The court declined to find that the offender was a principal or "king-pin" in the supply network. On the available agreed facts, the prosecution had not established beyond reasonable doubt that he contributed financially to the operation or shared in its profits in that way. Instead, the court sentenced him on the basis that he was a mid-level distributor: trusted by those above and below him, with ready access to significant quantities of cannabis, but not in direct contact with end users.
On the question of gambling debts, the court was clear that they provide no excuse for criminal conduct. Consistent with Siwek v R, the court acknowledged that a gambling addiction may explain offending in the same way that a drug addiction might, but does not generally warrant leniency. Relevant to rehabilitation prospects, however, was the offender's expressed intention to address his gambling, since the psychologist's report identified relapse as the primary risk factor for reoffending.
Family hardship carried limited weight. The court acknowledged the established principle, affirmed in R v Edwards and Hoskins v R, that courts must be resistant to treating family hardship as exceptional, since it is an unavoidable consequence of imprisonment. The court nonetheless took into account that the offender's time in custody would be made harder by separation from his wife and young children, and that his family lacked both a breadwinner and a father.
The early guilty plea produced a meaningful reduction: without it, the court indicated it would have imposed six years' imprisonment. The court also found special circumstances, warranting an extended parole period to assist with the offender's reintegration given his language barriers and family situation.
Orders Made
- Total sentence of four years and six months' imprisonment.
- Non-parole period of two years and eight months, commencing 5 February 2019, with eligibility for release to parole on 4 October 2021.
- Balance of sentence (one year and ten months) available to be served in the community on parole.
- Total sentence to expire on 4 August 2023.
- Matters on the s 166 form marked withdrawn and dismissed.
Key Takeaways
- The District Court confirmed that consolidating multiple drug supply transactions into a single rolled-up commercial supply charge is an established and appropriate procedure, and that the multiplicity of transactions need not then be separately aggravated under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999.
- A gambling debt, like a drug addiction, may contextually explain offending but does not constitute a mitigating factor warranting leniency; however, demonstrated efforts to address a gambling problem remain relevant to rehabilitation prospects.
- Where agreed facts do not establish beyond reasonable doubt that an offender was a financial principal in a drug supply network, the sentencing court will characterise the role more narrowly, with corresponding consequences for the weight given to role-based aggravation.
- Family hardship falls short of the "wholly exceptional" threshold required to treat it as a meaningful mitigating factor, consistent with R v Edwards and Hoskins v R, though it may still inform the court's assessment of how custody will weigh on the individual offender.
- Special circumstances can be found in commercial drug supply cases where factors such as limited English, family responsibilities, and rehabilitation needs justify extending the proportion of the sentence available to be served on parole.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)
Cases
- Cicciarello v R [2009] NSWCCA 272
- Hamzy v R (1994) 74 A Crim R 341
- Hoskins v R [2016] NSWCCA 157
- Jadron v R [2015] NSWCCA 217
- R v Edwards (1996) 90 A Crim R 510
- Siwek v R [2017] NSWCCA 178