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District Court 23 August 2024

R v Ji; R v Zeng

[2024] NSWDC 369

DrugsFraud & dishonesty
CRIME SENTENCE D RUG OFFENCES COMMONWEALTH OFFENCES OFFENDERS GENERAL DETERRENCE

Citation: R v Ji; R v Zeng [2024] NSWDC 369
Court: District Court of New South Wales
Date: 23 August 2024
Judge: Newlinds SC DCJ

Background

Two co-offenders, referred to here as the first offender and the second offender, pleaded guilty in the Local Court to trafficking a marketable quantity of methamphetamine, contrary to s 302.3(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 25 years' imprisonment. Both offenders were also implicated in proceeds of crime offending: the second offender faced a separate charge under s 400.7(1) of the Code for dealing with $7,500 cash believed to be proceeds of crime, while the first offender had a comparable proceeds of crime matter taken into account under s 16BA of the Crimes Act 1914 (Cth) in relation to $4,600 found in his vehicle.

The agreed facts established that, over a short period in late January to early February 2023, both offenders facilitated the delivery, minding, and receipt of methamphetamine contained in a bag. The first offender collected the bag and delivered it to the second offender, who stored it at his home. Both knew the bag contained an illicit drug. They were acting as low-level couriers within a wider criminal syndicate operated by others, and were paid cash for their involvement.

Both offenders had been held on remand since their arrest on 2 February 2023, and the sentencing court treated that entire period as referable to the matters before it.

  • What sentence was appropriate for each offender under s 16A(1) of the Crimes Act 1914 (Cth), having regard to all relevant factors in s 16A(2)?
  • How much weight should be given to general deterrence in Commonwealth drug trafficking matters, particularly where offenders occupied low-level roles within a criminal syndicate?
  • Whether a 25% discount for early guilty pleas, by analogy with NSW State sentencing practice, was appropriate in the Commonwealth sentencing framework?
  • How to treat the proceeds of crime offences in the context of overall criminality, given their close connection to the drug offences?
  • Whether the principle of parity required both co-offenders to receive equivalent sentences?

Decision

Newlinds SC DCJ applied the governing Commonwealth sentencing framework under s 16A of the Crimes Act, which requires the court to have regard to all relevant factors without imposing any hierarchy among them. His Honour accepted that both offenders occupied positions near the bottom rung of the distribution chain and that the cash payments they received were modest relative to the statutory penalties. Nonetheless, the court held that general deterrence remained a significant consideration: a consistent message must be sent to the community that involvement in drug trafficking carries stern consequences, regardless of how minor a participant's role may appear.

The court was satisfied that neither the proceeds of crime charge nor the s 16BA schedule offence added materially to the overall criminality, given how inextricably those matters were connected to the drug trafficking conduct. The proceeds of crime offences were therefore treated as substantially subsumed within the principal drug offences for sentencing purposes.

Both offenders received a 25% discount on their sentences for entering guilty pleas at the earliest opportunity, including by making full and frank admissions to police. The court noted that, unlike the NSW State regime, there is no mandated utilitarian discount for guilty pleas in Commonwealth matters, but that it is often appropriate to apply the equivalent State discount where the circumstances warrant it. The court found those circumstances were present here.

The court concluded that the prospects of either offender reoffending were low, having regard to the time already spent on remand and their personal circumstances. Despite each presenting with strong subjective cases, adequate punishment commensurate with the serious criminality involved required a significant custodial term. Parity between the co-offenders was maintained, with each sentenced to an identical three-year term, parole eligible after two years.

Orders Made

Second Offender (Zeng):
- Drug trafficking offence (sequence 2): three years' imprisonment, commencing 2 February 2023, expiring 1 February 2026
- Proceeds of crime offence (sequence 3): one year's imprisonment, commencing 2 February 2023, wholly concurrent
- Aggregate sentence: three years' imprisonment, commencing 2 February 2023, expiring 1 February 2026
- Parole eligibility: 1 February 2025
- $7,500 cash forfeited to the Commonwealth under s 48(2) of the Proceeds of Crime Act 2002 (Cth)

First Offender (Ji):
- Drug trafficking offence (sequence 3, including s 16BA matter taken into account): three years' imprisonment, commencing 2 February 2023, expiring 1 February 2026
- Parole eligibility: 1 February 2025
- $4,600 cash forfeited to the Commonwealth under s 48(2) of the Proceeds of Crime Act 2002 (Cth)

Key Takeaways

  • General deterrence remains a weighty consideration in Commonwealth methamphetamine trafficking sentencing, even where offenders occupied low-level courier roles within a larger syndicate and received relatively modest payment for their involvement.

  • A 25% guilty plea discount, equivalent to what would apply under NSW State legislation, is available in Commonwealth sentencing where the circumstances warrant it, although no such discount is mandated; the court applied it here given the early pleas and frank admissions to police.

  • Where proceeds of crime offences are so closely connected to the underlying drug offence that they add little to the overall criminality, the sentencing court may treat them as substantially subsumed within the principal offence rather than as materially aggravating factors.

  • Under s 16BA of the Crimes Act 1914 (Cth), a related offence can be taken into account as a schedule offence when sentencing for the principal offence, without imposing a separate penalty for the schedule matter.

  • The District Court confirmed that, even in cases presenting strong subjective circumstances (low reoffending risk, remorse, early cooperation), adequate punishment for serious drug trafficking still demands a meaningful custodial term; subjective factors do not displace the fundamental requirement of proportionate punishment.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 302.3(1), 400.7(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16BA, 17A(1)
- Proceeds of Crime Act 2002 (Cth), s 48(2)

Cases:
- Totaan v The Queen [2022] NSWCCA 75; 108 NSWLR 17
- Bae v R [2020] NSWCCA 35
- R v Chen [2022] 130 Crim R 300
- The King v MHM [2023] WASCA 172
- Ngo v R [2017] WASCA 3
- Nguyen v R [2010] NSWCCA 132
- Ban Joo Teoh v R [2018] VSCA 239
- Duong v DPP (Cth) [2021] VSCA 136
- R v Liang Xin [2009] VSCA 18
- R v Hidalgo Ruiz [2020] VCC 1473