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District Court 5 July 2024

R v Song

[2024] NSWDC 324

Drugs

Citation: R v Song [2024] NSWDC 324
Court: District Court of New South Wales
Date: 5 July 2024
Judge: Sutherland SC DCJ

Background

The offender was convicted of supplying not less than a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). This offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Two additional offences were placed on a Form 1 to be taken into account on sentence: a further supply of methylamphetamine (490 grams, just under the large commercial threshold) and possession of $41,500 suspected to be proceeds of crime.

The facts arose from a police strike force that had specifically targeted the offender. On 22 March 2023, police using surveillance and listening devices observed the offender drive to a co-accused's apartment in Sydney with nearly 1.5 kilograms of methylamphetamine concealed in home-made hidden compartments in his vehicle. He handed one bag (490g) to the co-accused, and the two then drove to Newcastle, apparently intending to deliver at least one of the remaining bags to a buyer. Police arrested both men before any delivery was completed.

Significantly, this offending occurred within nine months of the offender's release on parole from a prior Commonwealth sentence of eight years and three months, itself imposed for a methamphetamine importation offence. That earlier parole was revoked on 29 April 2023, approximately one month after his arrest for the present offences.

  • What was the appropriate objective seriousness of the offending, including whether it should be characterised as isolated or part of a broader pattern?
  • What weight should be given to the offender's expressed remorse, given that a similar letter of apology had been provided to the court during his earlier sentencing?
  • How should the aggravating factors of a prior record and offending on conditional liberty be assessed?
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio.
  • How should the sentence be structured and backdated, given the offender was also serving the balance of a revoked Commonwealth parole?

Decision

The court rejected the submission that the offending was merely a "one-off" or that the absence of evidence of other transactions during the surveillance period materially reduced objective seriousness. The offender arrived in possession of close to 1.5 kilograms of methylamphetamine, pre-arranged delivery with a buyer, and used a vehicle fitted with concealed compartments, indicating planning and preparation. The court assessed the offending as falling just below mid-range in objective seriousness, accepting that the offender's precise role in the broader supply chain was not established.

The court declined to accept that the offender's letter of apology demonstrated genuine remorse. The letter bore notable similarities to a letter of apology he had provided during his prior sentencing, and the court found this pattern undermined its authenticity. The offender's re-offending within nine months of parole release was treated as a significant aggravating factor, both as a prior record and as offending while on conditional liberty.

The court found the offender's relatively young age, the risk of institutionalisation from lengthy incarceration, and the need for supervised rehabilitation constituted special circumstances warranting a departure from the standard non-parole period ratio. The head sentence was set at seven and a half years, with a non-parole period of four and a half years.

On backdating, the court exercised its discretion to commence the sentence on 29 October 2023. This date reflected the approximately 15.5 months already spent in custody since arrest, the revocation of Commonwealth parole about one month after arrest, and the need to apply the principle of totality while also recognising the discrete criminality involved in breaching parole conditions.

Orders Made

  • The offender was convicted of supplying not less than a large commercial quantity of methylamphetamine.
  • Sentenced to a non-parole period of 4 years and 6 months, commencing 29 October 2023 and expiring 28 April 2028 (earliest eligible release date).
  • Special circumstances found; additional term of 3 years imposed, expiring 28 April 2031.
  • Overall effective sentence: head sentence of 7 years and 6 months, with a non-parole period of 4 years and 6 months.

Key Takeaways

  • A letter of apology that closely mirrors one provided to a court in earlier proceedings may be afforded little weight as evidence of genuine remorse, particularly where the offender has reoffended in similar fashion shortly after release.
  • Re-offending within nine months of parole release was treated as a significant aggravating factor under both the prior record and conditional liberty limbs of the sentencing framework.
  • The standard non-parole period of 15 years for large commercial drug supply under s 25(2) of the Drug Misuse and Trafficking Act 1985 operates as a guidepost in the instinctive synthesis, not a mandatory starting point.
  • Special circumstances warranting a reduced non-parole period ratio may be established by a combination of the offender's youth, risk of institutionalisation, and the need for supervised post-release rehabilitation.
  • Where an offender is simultaneously serving the balance of a revoked Commonwealth parole, the District Court retains a discretion to backdate the commencement of a new NSW sentence to a point that reflects time already spent in custody and the principle of totality, while separately acknowledging the distinct criminality of a parole breach.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, 253 CLR 58
- Bugmy v The Queen [2013] HCA 387; (2013) 249 CLR 571
- Callaghan v R [2006] NSWCCA 58
- Chiarlini v R [2023] NSWCCA 227
- Ebrahami v R [2019] NSWCCA 273
- Kiraz v R [2023] NSWCCA 177
- R v DW [2012] NSWCCA 66
- R v Joseph Sultana (1994) 74 A Crim R 27