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District Court 21 May 2021

R v Chu

[2021] NSWDC 328

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG POSSESS PROHIBITED DRUG

Citation: R v Chu [2021] NSWDC 328
Court: District Court of New South Wales
Date: 21 May 2021
Judge(s): Buscombe DCJ

Background

The offender, a 34-year-old man with no prior criminal history, pleaded guilty to four drug supply offences and eight possession offences arising from a single police search of his bedroom at a residential property in Yagoona on 15 April 2020. Police executed a search warrant as part of an investigation into a drug trafficking organisation operating in Sydney. The offender was present and nominated the searched bedroom as his own.

Police found extraordinarily large quantities of cocaine, methylamphetamine, MDMA, and gamma butyrolactone stored in various containers throughout the bedroom, including in a cooler bag, under a TV unit, and beneath a fish tank. The offender's DNA and fingerprints were linked to several of the containers and packaging.

The agreed facts did not identify the offender as someone who was actively selling drugs to end users. Rather, the prosecution and defence proceeded on the basis that his role was to store the drugs on behalf of others in exchange for drugs or money to fund his own addiction.

Legal Issues

  • What was the objective seriousness of each supply offence, having regard to the quantities of drugs involved and the offender's particular role?
  • What weight should be given to the offender's subjective circumstances, including his lack of prior criminal history, his mental health diagnoses, his drug addiction, and his early pleas of guilty?
  • Whether special circumstances existed justifying a departure from the standard non-parole periods applicable to the principal offences.
  • What aggregate sentence was appropriate across all offences, applying the aggregate sentencing provisions?

Decision

Objective seriousness and the offender's role

Buscombe DCJ found, beyond reasonable doubt, that the offender stored the drugs for approximately one month at the request of others, with full knowledge of the quantities involved, because he was trusted by those further up the supply chain (at [28]). The agreed facts contained no reference to the offender actively selling drugs, possessing scales or packaging materials, using a Blackberry device, or holding records consistent with retail or wholesale supply (at [24]-[25]). The court assessed the supply of large commercial quantities of both cocaine and methylamphetamine as below the midrange of objective seriousness but not at the bottom of the range, given the quantities far exceeded the threshold for large commercial quantities (at [30]). The gamma butyrolactone offence was assessed as a little below the midrange, and the MDMA supply offence towards the lower end (at [30]).

Subjective case

The offender's lack of any prior criminal history entitled him to some leniency, though the court applied the established principle that good character carries less weight in drug trafficking cases, as persons of good character are often deliberately recruited to avoid suspicion (at [32]). Psychiatric evidence supported formal diagnoses of substance use disorder and depressive illness, with the death of his younger sister and the breakdown of his marriage identified as triggers (at [49]-[50]). The court found the offender's remorse was primarily directed at the impact on himself and his family, rather than on the broader community, though his early plea and good custodial conduct demonstrated some genuine remorse (at [57]).

Special circumstances and non-parole period

The court made a finding of special circumstances justifying a departure from the applicable standard non-parole periods of 15 years (for the cocaine and methylamphetamine offences) and 10 years (for the gamma butyrolactone offence). The reasons included the offender's status as a first offender, the impact of COVID-19 restrictions on prison visits throughout much of 2020, his incomplete rehabilitation, and his need for supervision and support upon release (at [59]).

Aggregate sentence

Applying the aggregate sentencing provisions, the court imposed a single aggregate sentence of nine years imprisonment with an aggregate non-parole period of six years, commencing 16 April 2020 (at [74]). The court had regard to the sentencing objectives in section 3A of the Crimes (Sentencing Procedure) Act 1999, including deterrence, denunciation, community protection, and rehabilitation (at [62]). A 25 percent discount was applied for the utilitarian value of the early guilty pleas entered in the Local Court (at [56]).

Orders Made

  • The offender is convicted of all offences to which he pleaded guilty.
  • An aggregate sentence of nine years imprisonment is imposed, with an aggregate non-parole period of six years.
  • The sentence commences on 16 April 2020 and expires on 15 April 2029.
  • The non-parole period expires on 15 April 2026, being the earliest date of parole eligibility.

Key Takeaways

  • A sentencing court will assess an offender's role in drug supply by reference to concrete evidence of actual selling activity, including the presence or absence of messaging devices, scales, packaging, and records. Where the agreed facts are consistent only with a storage or custodian role, that will be reflected in a lower assessment of objective seriousness, even when the quantities involved are very large (at [24]-[28]).

  • The District Court confirmed that good character carries reduced mitigating weight in drug trafficking sentencing, applying the established Court of Criminal Appeal principle that persons of good character are frequently recruited to trafficking enterprises precisely because they are less likely to attract suspicion (at [32]).

  • Under the aggregate sentencing provisions, the court does not simply add up individual indicative sentences. The aggregate sentence is fixed by reference to all objective and subjective factors, with the indicative sentences serving as a structural guide rather than a mathematical formula (at [61], [67]).

  • Special circumstances sufficient to justify departing from standard non-parole periods can arise from a combination of factors, including first-offender status, incomplete rehabilitation requiring post-release support, and the particular conditions of custody during the COVID-19 pandemic (at [59]).

  • A 25 percent sentence discount for early guilty pleas reflects the utilitarian value of those pleas, independent of the question of whether the offender has demonstrated full insight into the harm caused by large-scale drug supply to the community (at [56]-[57]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), (2)
- Criminal Procedure Act 1986 (NSW) s 166
- Poisons and Therapeutic Goods Act 1966 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 3A

Cases
- Not stated