AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 30 September 2021

R v Lin

[2021] NSWDC 523

Drugs
CRIME ASSIST IN CONDUCTING A DRUG PREMISES

Citation: R v Lin [2021] NSWDC 523
Court: District Court of New South Wales
Date: 30 September 2021
Judge(s): Mahony SC DCJ

Background

The offender was sentenced for two offences arising from a police investigation into methylamphetamine supply in the Hurstville area in mid-2020. The principal offender, Li, operated a drug supply business out of a Hurstville apartment that also functioned as a brothel. The offender worked at the reception of those premises, having begun doing so to repay a drug debt he owed Li.

Between 7 May and 30 May 2020, the offender supplied methylamphetamine to customers on four separate occasions at Li's direction, totalling 17.5 grams and generating revenue of $3,940. Police executed a search warrant on 18 June 2020 and found extensive drug supply paraphernalia on the premises. The offender was arrested on 22 June 2020 and had been in custody since that date.

He pleaded guilty to two offences: ongoing supply of prohibited drugs (methylamphetamine) under section 25A(1) of the Drug Misuse and Trafficking Act 1985, and assisting in the conduct of a drug premises under section 36Z(1)(a) of the same Act. He had prior convictions for serious offending, including wounding with intent and dishonesty offences, and was on parole at the time of the index offences.

Legal Issues

  • What was the appropriate assessment of objective seriousness for the ongoing supply offence, given the offender's subordinate role within a more sophisticated drug supply operation?
  • What weight should be given to the offender's history of childhood trauma, abuse, and disadvantage in reducing moral culpability under the principles in Bugmy v The Queen?
  • Whether the statutory threshold for full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act was crossed for either offence.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • What discount applied for the early plea of guilty, and what effect did the offender's drug addiction, mental health diagnoses, and criminal history have on sentence?

Decision

Objective seriousness of the ongoing supply offence: The court accepted that the drug supply operation as a whole was sophisticated, using code words, a ledger, and frequent communications between participants. However, the offender's personal role did not share those hallmarks. He supplied relatively small quantities on four occasions, totalling 17.5 grams, well short of the commercial quantity of 250 grams, and appeared to function as a street-level distributor for Li. The court assessed the objective seriousness of sequence 1 as below the mid-range, and towards the middle of the low range, for an offence under section 25A(1) of the Drug Misuse and Trafficking Act (at [62]).

Moral culpability and childhood disadvantage: The court accepted, on the basis of the psychologist's report, that the offender had experienced corporal punishment by his father and sexual assault by a relative during his time in China, and had grown up in straitened financial circumstances. Consistent with remarks by Brereton JA in Hoskins v R [2021] NSWCCA 169, the court found that these social disadvantages and his early exposure to drug abuse operated to reduce his moral culpability, notwithstanding that the offending involved drug supply (at [69]). The Crown noted the evidence fell short of "profound deprivation" as described in Bugmy, but the court nonetheless gave the background some mitigating weight.

Aggravating factors and criminal history: Offending while on parole, within three months of release, constituted a statutory aggravating factor (at [64]). The offender's prior sentences for serious offences disentitled him to leniency and demonstrated a complete failure to rehabilitate following earlier imprisonment (at [65]).

Plea, special circumstances, and the second offence: The court allowed a 25% utilitarian discount for the early guilty plea (at [66]). It found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act, given the offender's need for an extended supervision period to address drug and alcohol rehabilitation (at [74]). For sequence 5, the court was not satisfied the threshold for full-time imprisonment had been crossed (at [73]), and instead imposed a fine.

Orders Made

  • Convicted of ongoing supply of prohibited drugs (methylamphetamine) under section 25A(1) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to a total term of two years and six months imprisonment, with a non-parole period of one year and three months commencing 22 July 2020 and expiring 21 October 2021; the balance of term to run from 22 October 2021 to 21 January 2023.
  • Convicted of assisting in conducting a drug premises under section 36Z(1)(a) of the Drug Misuse and Trafficking Act 1985; a fine of $300 imposed.

Key Takeaways

  • The District Court confirmed that the sophistication of a drug supply operation as a whole should not be conflated with the individual offender's role: a street-level participant who acts at a principal's direction may properly be assessed at the lower end of the objective seriousness range, even within an otherwise organised enterprise (at [62]).
  • Under the Bugmy principle, as applied following Hoskins v R, evidence of childhood trauma, sexual abuse, and social disadvantage can operate to reduce an offender's moral culpability even in drug supply matters, provided sufficient factual foundation exists (at [69]).
  • Self-induced intoxication cannot be taken into account as a mitigating factor pursuant to section 21A(5AA) of the Crimes (Sentencing Procedure) Act, but an offender's long history of drug abuse from an early age remains relevant background context when assessing moral culpability (at [68]).
  • Special circumstances justifying a variation to the standard non-parole period ratio may be found where an offender presents with significant mental health diagnoses, entrenched substance dependency, and a corresponding need for extended post-release supervision (at [74]).
  • Onerous custody conditions arising from the COVID-19 pandemic, including restricted access to programs, personal visits, and mental health services, continued to be treated by the District Court as a relevant mitigating consideration at sentencing (at [72]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse & Trafficking Act 1985

Cases
- Bugmy v The Queen (2013) 249 CLR 171; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1;[2010] NSWCCA 194
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- Hoskins v R [2021] NSWCCA 169
- Kay v R [2019] NSWCCA 275
- McLean v R [2020] NSWCCA 344
- R v Giang [2005] NSWCCA 387