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District Court 5 April 2024

R v Ly

[2024] NSWDC 99

Drugs
CRIMINAL LAW SENTENCE CONTROLLED DRUG COMMONWEALTH OFFENCE OFFENDER DRUG ADDICT GOOD PROSPECTS OF REHABILITATION

Citation: R v Ly [2024] NSWDC 99
Court: District Court of New South Wales
Date: 5 April 2024
Judge: Newlinds SC DCJ

Background

The offender, a 36-year-old man with a long history of drug addiction, was arrested on 12 December 2022 after collecting a package from a post office in Ashfield with another man. The package had been intercepted by Australian Border Force officers, x-rayed, and found to contain approximately 5.021 kg of pure heroin concealed in fabric bags. The Australian Federal Police conducted a controlled delivery before arresting the offender.

A search of the offender's home uncovered small quantities of 1,4-butanediol and methylamphetamine, as well as satchel bags and a small amount of cash. Investigators concluded he had acted on the directions of unknown others. The Crown accepted that the offender was reckless as to the package containing a border-controlled drug and could not establish beyond reasonable doubt that he knew the weight of the consignment.

The offender pleaded guilty to one Commonwealth charge of attempting to possess a commercial quantity of a border-controlled drug, carrying a maximum penalty of life imprisonment. Two minor state possession offences were dealt with on a s 166 certificate.

  • Whether the threshold for full-time imprisonment was met for the Commonwealth offence and the state possession offences
  • Whether the head sentence could appropriately be set at three years or less, which would have permitted a Recognisance Release Order (a form of supervised conditional release) rather than a standard parole regime
  • What weight to give the offender's drug dependence, moral culpability, prospects of rehabilitation, and the need for general and specific deterrence when fixing the head sentence and non-parole period
  • Whether a longer-than-usual parole period was warranted and, if so, how to structure it

Decision

His Honour accepted that full-time imprisonment was the only appropriate sentence for the Commonwealth offence, given its objective seriousness. The state possession matters were treated as minor, with convictions recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and no further penalty imposed.

The central tension in the proceedings was whether the head sentence should be three years or less. At or below that threshold, the court could have imposed a Recognisance Release Order requiring the offender to follow a detailed drug treatment plan prepared by Dr Gerald Chew. His Honour was careful to avoid "backwards reasoning," meaning he declined to start from the desirability of a Recognisance Release Order and work backwards to a head sentence that would permit it. After considering all relevant matters, he concluded the head sentence had to exceed three years, which meant a standard parole arrangement applied instead.

His Honour found the offender's conduct fell towards the lower end of the range for offences of this type. Moral culpability was assessed as significantly reduced by the offender's drug dependence. Good prospects of rehabilitation and a correspondingly low risk of reoffending were also taken into account. However, general deterrence was given considerable weight, consistent with established principles for serious federal drug offences.

Starting from a head sentence of five years and six months, His Honour applied the 25 per cent statutory discount for the guilty plea (applying the State discount methodology, which the parties agreed was appropriate), arriving at a head sentence of four years and one month. Given the offender's need for extended supervised treatment, a non-parole period of two years was set, producing a parole period substantially longer than the one-third that would ordinarily apply. His Honour made a formal recommendation that the parole authorities consider the treatment plan outlined by Dr Chew.

Orders Made

  • Term of imprisonment of four years and one month, commencing 12 December 2022 and expiring 11 January 2027
  • Minimum non-parole period of two years, commencing 12 December 2022 and expiring 11 December 2024 (first day of parole eligibility)
  • Recommendation that the sentencing reasons and Dr Chew's treatment plan be provided to the relevant parole authorities, with a recommendation that the offender be required to undertake that or a similar treatment plan while on parole
  • In relation to the two state possession offences: s 10A conviction recorded in each case, with no further penalty imposed

Key Takeaways

  • The District Court confirmed that a sentencing judge must not engage in "backwards reasoning" by starting from the attractiveness of a particular sentencing option (here, a Recognisance Release Order) and then constructing a head sentence to reach it.
  • Under s 19AC of the Crimes Act 1914 (Cth), a Recognisance Release Order is only available where the head sentence is three years or less; once that threshold is exceeded, the court must fix a non-parole period rather than impose conditional supervised release.
  • A longer-than-usual parole period can be justified by the offender's need for extended supervised rehabilitation, with the District Court finding special circumstances existed on the facts, resulting in a parole period of over two years on a four-year-and-one-month head sentence.
  • Established principles for serious federal drug offences continue to require that general deterrence receive considerable weight, even where an offender's moral culpability is significantly reduced by drug dependence.
  • Courts sentencing for offences of this kind can make formal recommendations to parole authorities about specific treatment plans, even where the structure of the sentence does not permit direct imposition of such conditions.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1) and 307.5(1)
- Crimes Act 1914 (Cth), ss 16A(2), 17A, 19AB, 19AC, 16E(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2), 21A(3), 10A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- The Queen v Pham [2015] HCA 39; (2015) 90 ALJR 13
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Totaan v The Queen [2022] NSWCCA 75
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Tran [2013] NSWCCA 136
- R v Todorovic [2008] NSWCCA 49
- R v Pearson [2004] NSWCCA 129
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- Lauritsen v The Queen [2000] WASCA 203; (2000) 114 A Crim R 333
- R v Tsiaras [1996] 1 VR 398
- R v Engert (1995) 84 A Crim R 67
- R v Jiminez [1999] NSWCCA 7
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Pearce (unreported, NSWCCA, 1 November 1996)