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District Court 13 August 2021

R v Sun

[2021] NSWDC 515

Drugs

Citation: R v Sun [2021] NSWDC 515
Court: District Court of New South Wales
Date: 13 August 2021
Judge(s): Bennett SC DCJ

Background

The offender was tried in the District Court at Parramatta on two counts under the Drug (Misuse and Trafficking) Act 1985. The trial ran from 11 March to 5 May 2021, substantially longer than the original four-week estimate. The jury returned guilty verdicts on both counts.

The first count concerned the supply of methylamphetamine in an indictable quantity during a one-week period in September 2018 at Burwood. The second count concerned the supply of methylamphetamine on three or more separate occasions within a 30-consecutive-day period for financial or material reward, also in September 2018.

The offender had previously been convicted of supplying a prohibited drug in excess of the commercial quantity and was released on parole in February 2018. He committed the present offences approximately six months after that release, with roughly 18 months of his earlier head sentence still to run.

  • What facts relevant to the offending could the court find proved, and to what standard, for sentencing purposes?
  • How should pre-sentence custody be calculated, taking into account the overlap between the earlier parole period and the periods of bail refusal for the present offences?
  • What weight, if any, should be given to the restrictive bail conditions imposed on the offender before his return to custody?
  • Whether the offender's claim of duress (raised at trial) affected the sentencing findings of fact.
  • What orders should be made under the Confiscation of Proceeds of Crime Act 1989 in respect of cash seized and proceeds of drug transactions?

Decision

Findings of fact. The court was required to find the sentencing facts consistently with the jury's verdicts, applying the criminal standard to facts adverse to the offender and the balance of probabilities to facts the offender raised in mitigation. The offender had given lengthy evidence at trial asserting that he participated in the drug transactions only under duress from a third party, and that he acted as a conduit rather than a beneficiary. The court rejected these mitigating claims and found the facts to be consistent with the jury's guilty verdicts on both counts.

Pre-sentence custody. The court undertook a detailed calculation of the periods during which the offender was held in custody referable to these offences, arriving at 112 days (the Crown had calculated 111 days, the difference arising from 2020 being a leap year). Drawing on the Court of Criminal Appeal's analysis in Callaghan v R [2006] NSWCCA 58, the court noted that no absolute rule governs where an offender re-offends during a parole period. Because the offender had re-offended relatively soon after release and with a substantial balance of parole remaining, the court treated the period spent in custody during the earlier parole term as referable to the earlier sentence rather than the present offences.

Bail conditions. The offender was on bail from 19 June 2020 until 15 May 2021 under highly restrictive conditions: daily reporting requirements, curfew-equivalent restrictions on movement, prohibition on unsupervised absence from his parents' home except to report to police, and a $30,000 bail security. The court found these conditions amounted to a significant curtailment of liberty over approximately ten months and 21 days, and took them into account by commencing the aggregate sentence from 23 November 2020 rather than 23 January 2021.

Proceeds of crime. The court found that the value of the benefit derived from the drug trafficking totalled $22,600, representing cash paid in the course of the transactions that was not recovered. Although the offender argued he was a mere conduit and that any proceeds order should be directed to another person, the court rejected that submission and made a drug proceeds order in that amount against the offender. A forfeiture order was also made in respect of $9,000 in cash seized at arrest.

Orders Made

  • Forfeiture of $9,000 in cash seized from the offender at arrest to the State of New South Wales under s 18(1) of the Confiscation of Proceeds of Crime Act 1989, with leave granted to dispose of the property forthwith under s 19(3)(a).
  • Drug proceeds order against the offender in the sum of $22,600, payable to the State of New South Wales, under s 29(1) of the Confiscation of Proceeds of Crime Act 1989, representing the assessed value of benefits derived from the drug trafficking.
  • The Crown withdrew the charge of dealing with the proceeds of crime (certified under s 166 of the Criminal Procedure Act 1986 in respect of $9,395); no further order was required on that matter.
  • Aggregate custodial sentence imposed, backdated to commence 23 November 2020 (full term and non-parole period not reproduced in the available text).

Key Takeaways

  • Where an offender re-offends relatively soon after release on parole with a substantial parole balance remaining, the District Court applied the Callaghan v R principle to treat custody served during the parole period as referable to the earlier sentence, not the fresh offences.
  • Restrictive bail conditions falling short of full custody can still warrant an adjustment to the commencement date of a sentence. The court recognised that near-total supervision of daily movements over roughly ten months constituted a meaningful deprivation of liberty.
  • For sentencing fact-finding purposes, a court is not bound to accept the most favourable version of events for the offender. Facts in mitigation must be established on the balance of probabilities, while aggravating facts must be proved beyond reasonable doubt.
  • Under the Confiscation of Proceeds of Crime Act 1989, a drug proceeds order can be made against a person even where that person claims to have acted as a conduit, provided the court is satisfied on the evidence that the relevant benefit was in fact derived by that person.
  • A prior record of serious drug supply offending committed shortly before the present offences, combined with re-offending within months of parole release, formed a significant part of the sentencing context considered by the District Court.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a), 29(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW)

Cases
- Callaghan v R [2006] NSWCCA 58
- Cheung v Regina (2001) 209 CLR 1
- R v Olbrich (1999) 199 CLR 162
- Savvas v The Queen (1995) 183 CLR 1
- Regina v Isaacs (1997) 41 NSWLR 374
- Imbornone v Regina [2017] NSWCCA 144
- Mirza v R [2007] NSWCCA 248
- Parente v R [2017] NSWCCA 284
- R v Wong [2018] NSWCCA 20
- Health Care Complaints Commission v Sun [2016] NSWCATOD 80
- Health Care Complaints Commission v Sun [2016] NSWCATOD 123