Citation: R v Yao [2022] NSWDC 669
Court: District Court of New South Wales
Date: 7 December 2022
Judge: Bennett SC DCJ
Background
The offender, Zhengxing Yao, pleaded guilty in the Local Court to two drug supply offences under the Drug Misuse and Trafficking Act 1985 and subsequently confirmed those pleas in the District Court. The first offence involved the supply of 685 grams of heroin at Pyrmont on 18 August 2021, an amount at or above the commercial quantity. The second involved the supply of 1.4 kilograms of heroin in Sydney between 22 and 27 September 2021, an amount at or above the large commercial quantity.
The offences arose from a police controlled operation conducted by the NSW Police Force Organised Crime Squad, which targeted a sophisticated drug supply network operating in Sydney. The offender participated in the enterprise alongside three co-offenders, using adopted aliases to obscure identities and transacting directly with undercover police operatives.
The offender also asked the court to take into account two additional offences under a Form 1 arrangement: a supply of 0.55 grams of methylamphetamine on 6 September 2021 and a supply of 0.74 grams of heroin on 17 September 2021, both at Burwood.
Legal Issues
- What sentence was appropriate for supplying a commercial quantity of heroin, having regard to the objective seriousness of the offence and the offender's subjective circumstances?
- What sentence was appropriate for supplying a large commercial quantity of heroin, including the Form 1 offences?
- What discount applied to each sentence in light of the early guilty pleas under s 25B(2)(a) of the Crimes (Sentencing Procedure) Act 1999?
- Whether special circumstances existed to justify a non-parole period lower than the statutory default ratio, and how an aggregate sentence should be structured under s 53A of the Crimes (Sentencing Procedure) Act 1999.
Decision
The court accepted the agreed statement of facts, which described a sophisticated commercial drug supply operation involving the use of aliases and coordination between multiple participants. The offender played a direct, hands-on role: he was present at the transaction, personally handled the drugs, and communicated with the undercover operative. The court assessed both offences as serious, noting that the large commercial quantity of 1.4 kilograms exceeded the base large commercial threshold of one kilogram by 400 grams.
A 25% discount was applied to both sentences to reflect the early guilty pleas entered in the Local Court, as required by s 25B(2)(a) of the Crimes (Sentencing Procedure) Act 1999. The court also considered the offender's contrition and prospects for rehabilitation in arriving at the sentences before applying the discount.
The court made a finding of special circumstances, which permitted a departure from the standard ratio between non-parole period and overall sentence. This finding was informed by the need to structure the sentence to facilitate rehabilitation upon the offender's eventual release. The court noted that community protection was not a prominent concern given the rehabilitation prospects identified, and that specific deterrence carried limited weight, though it could not be disregarded entirely. Denunciation and general deterrence remained significant sentencing considerations in the context of commercial heroin supply.
An aggregate sentence was imposed under s 53A, commencing from the date of the offender's arrest on 18 November 2021. The overall sentence reflected the totality principle applied to the two principal offences.
Orders Made
- Offender convicted of both offences to which he pleaded guilty.
- Aggregate sentence of 8 years imprisonment imposed, commencing 18 November 2021.
- Non-parole period of 5 years, expiring 17 November 2026.
- Parole period of 3 years, expiring 17 November 2029.
- Individual sentences specified: 5 years and 3 months (non-parole period of 3 years) for the commercial quantity heroin supply; 7 years and 6 months (non-parole period of 4 years and 6 months) for the large commercial quantity heroin supply.
- Form 1 offences taken into account in sentencing for sequence four; Form 1 certified accordingly.
- Finding of special circumstances made.
- Exhibits to remain on file.
Key Takeaways
- The District Court confirmed that a 25% guilty plea discount applied under s 25B(2)(a) of the Crimes (Sentencing Procedure) Act 1999 where pleas were entered at the earliest opportunity in the Local Court.
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate where an offender is sentenced for multiple offences, with individual component sentences still specified for each offence.
- Special circumstances can justify a departure from the default non-parole period ratio where rehabilitation prospects are identified as a significant sentencing objective, particularly for a first-time offender in a commercial drug supply context.
- Participation in a sophisticated, coordinated drug supply network, including direct handling of drugs and communication with buyers, was treated as relevant to objective seriousness even where the offender was not identified as the principal organiser.
- Where drug quantities exceed the threshold for a large commercial quantity, the degree of excess above that threshold is a relevant factor in calibrating sentence severity.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25B(2)(a), s 37, s 53A
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518
- Dang v R [2005] NSWCCA 430
- Hristovski v R [2010] NSWCCA 129
- Imbornone v R [2017] NSWCCA 144
- Ly v R [2008] NSWCCA 262
- Markarian v R [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v DW [2012] NSWCCA 66
- R v Qi [2019] NSWCCA 73
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247