R v An [2020] NSWDC 360

District Court New South Wales

Medium Neutral Citation: R v An [2020] NSWDC 360 Hearing dates: 12/6/20, 25/6/20 Date of orders: 25/6/20 Decision date: 25 June 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to an aggregate term of imprisonment of 2 years 10 months with a NPP of 1 year 8 months (21/2/19-20/10/20). I find special circumstances. The indicative sentences are: Seq 20 – 2 years (Form 1 taken into account). Seq 21 – 15 months Seq 22 – 15 months Seq 23 – 15 months. Catchwords: Crime – Sentence – Aggregate – Supply prohibited drug – Cannabis leaf Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: Bugmy v R [2013] HCA 27 Dipangkear v R [2010] NSWCCA 156 Huynh v R [2018] NSWCCA R v Dibb, unreported, NSWCCA, 13 September 1991 R v Edwards (1996) 90 A Crim R 510 R v Girard [2004] NSWCCA 170 Winter v R [2011] NSWCCA 59 Category: Sentence Parties: NSW DPP – Crown Vu Duc An - Offender Representation: Mr S Burton for Crown Ms S Goodwin for Offender File Number(s): 2019/58068

sentence 1. The offender, Mr Duc Tuan An, is before the court for sentence on four offences of supply prohibited drug, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. Each carries a maximum of 10 years imprisonment. In addition, he asks that in sentencing him on one of those offences I take into account on a Form 1 document three additional offences, to which he admits his guilt, those being a further three offences of supply prohibited drug. 2. Each of the supply offences, including those on the Form 1 document, relate to a quantity of cannabis leaf amounting to about 9 kilograms. The offender pleaded guilty at the earliest opportunity, and I apply a 25 per cent discount on account of the utilitarian value of that plea. 3. The court has been provided with an Agreed Statement of Facts, which I summarise as follows: 4. Some time prior to December 2018, a police strike force was established to investigate the supply of cannabis in the Greater Sydney and Central Coast areas. Between December 2018 and January 2019, telephone intercept warrants were granted to intercept telephones associated with a Timothy Davison and Anthony Jabour. As a result of those phone taps, this offender and two other persons, Patrick Wakley and Garry Cross, came to notice. 5. The first offence in time is one that is on the Form 1 document, that being the sequence 16 charge, and it occurred on 15 January 2019. On that day, Anthony Jabour called Timothy Davison, who was his courier or driver and told him to "come down". Later that day, Davison called Jabour, telling him he was near Carlingford. About an hour later, the offender, Mr An, called Davison and an arrangement was made for them to meet at the offender's home in Yagoona. 6. That evening Davison attended the offender's home and collected 9 kilograms, that is about 20 pounds, of cannabis leaf. Later that night Davison delivered that cannabis leaf to Patrick Wakley. 7. The offender's actions in supplying the 9 kilograms to Davison is the subject of this first offence which is on a Form 1 document. 8. The second Form 1 supply offence relates to events that occurred between 22 and 23 January 2019. On 22 January, Patrick Wakley sent a message to Anthony Jabour which said, "Can we go again tomorrow night". In the context, it is clear that this was a request by Wakley to be supplied with more cannabis. 9. The next day, 23 January 2019, Jabour contacted his driver, Davison, who agreed to go up to see Mr Wakley. Shortly after, Jabour sent a message to Wakley, informing him that Davison would be there at about 3pm. Jabour then gave instructions to Davison, who drove from his home and met briefly with Jabour, then drove to the offender's home where he collected 9 kilograms of cannabis leaf from the offender, which he then transported to Mr Wakley at North Arm Cove. 10. The third Form 1 supply offence occurred about three days later. On 26 January 2019, the offender sent a message to Jabour which read, "Hello bro, how are you. I sent you a message, please read it?". Following this, Davison visited Wakley. After this, Jabour and Wakley had a conversation in which Wakley said everything was ready to "rock and roll" and confirmed that Davison had seen him the previous day. 11. On 29 January, Davison travelled to Jabour's house at Old Guilford, and then to the offender's residence at Yagoona, where he collected another 9 kilograms of cannabis leaf. 12. Turning then to the first charge on which I am to sentence the offender, that being sequence 20 and the facts are these: 13. This supply offence was committed by the offender on 1 February 2019. It was preceded by a discussion between Jabour and Davison as to when Davison could go up to see Pat, that is Patrick Wakley. On 31 January 2019, that is, the day before the offence was committed, the offender sent a message to Jabour which read, "I have just sent you a message", following which Davison travelled to see Wakley in North Arm Cove. The next day, 1 February, Davison visited Jabour, then drove to the offender's house at Yagoona, where he collected a further 9 kilograms of cannabis leaf which he took to Wakley. 14. In sentencing for this offence, I am asked to take into account the three matters on the Form 1 document, the facts of which I have already recounted. 15. The second charge on which the offender is to be sentenced is the sequence 21 charge. The events relating to this supply offence occurred between 4 and 11 February 2019. 16. On 4 February 2019, Jabour and Davison discussed something happening "tomorrow arvo" and the next day Davison agreed on a time when he would visit Wakley. After visiting Wakley, Davison spoke with the offender, who told Davison that he was "not ready" because it was Chinese New Year. Davison then passed this information to Jabour, which resulted in Davison being told that the supply would occur in the next couple of days, or on the weekend. Wakley then spoke to another man, Garry Cross, telling him that it would be late, due to Chinese New Year, and subsequently an agreement was reached that the supply to Wakley would occur on the Monday, that is 11 February. 17. On Sunday, 10 February, Davison travelled to the offender's house and collected another 9 kilograms of cannabis leaf which he delivered to Wakley, who subsequently supplied it to Garry Cross in the Port Macquarie area the next day. 18. The third supply offence, that is the charge that is the subject of sequence 22, for which the offender is to be sentenced, took place on 12 February 2019. The day before that, there was contact between Jabour and Davison, in which Jabour asked whether Davison could "go up tomorrow" and an agreement was reached that Davison would visit Wakley the following day. This was followed by coded discussions between Garry Cross and Patrick Wakley as to when Cross could be supplied more cannabis and what quantities he required. 19. On Tuesday, 12 February 2019, Davison drove from his home at Tumbi Umbi to the home of Patrick Wakley at North Arm Cove, and then to the house of Anthony Jabour at Old Guilford. After remaining there for about 40 minutes, Davison drove to the offender's home at Yagoona and parked his vehicle in the offender's garage, after which the garage door was closed. Davison and the offender then packed 9 kilograms of cannabis leaf into a cardboard box which was placed in the boot of Davison's car. Davison then left the offender's home and drove north. 20. At about 7.25pm that night, police, who had stopped Davison, arrested him after he tested positive to cannabis and cocaine and was found in possession of half a gram of cocaine and $1,165 cash. When police asked to look in the boot of the vehicle, Davison sat in the driver's seat and then started the vehicle's engine and accelerated, dragging one of the police officers along the roadway for about 10 metres. 21. Later that night, Davison and his vehicle were found, and he was arrested after a short struggle. In the boot of his vehicle was found the cardboard box that he had collected from the offender, which held 20 bags containing a total of 8.89 kilograms of cannabis leaf. 22. The next day, 13 February 2019, both Wakley and Jabour made various attempts to contact Davison, and when they were unsuccessful, spoke with each other about what might have happened to him. On Thursday, 14 February 2019, Patrick Wakley rang Garry Cross and told him, "My mate disappeared with 60 grand worth of my shit yesterday okay. I'm fuckin' trying to find it". There were further discussions between Wakley and Cross but it is unnecessary for those to be referred to in the current sentencing exercise. 23. Turning then to the fourth charge on which the offender is to be sentenced, the facts are these: 24. On Thursday, 21 February 2019, police executed a search warrant at the offender's house at Yagoona. The offender showed police a second bedroom in the house where he stored the cannabis. In that bedroom, police found a cardboard box which contained 21 resealable plastic bags of cannabis leaf weighing a total of 9.4 kilograms. Police also found a set of scales, a plastic bowl with scissors, a colander, and a vacuum heat sealer. Police also seized two mobile telephones which the offender said were his. The offender told police he would, while using gloves, package the cannabis in the bags and vacuum seal them. It is the finding of this 9.4 kilograms of cannabis leaf in the offender's possession which is the subject of the fourth supply offence for which he is to be sentenced. 25. The offender was taken to Bankstown Police Station where he made full admissions. He agreed that he had packed the cannabis found at his home into the 21 bags and that these had been delivered to him two days earlier. He refused however to name the person who delivered the cannabis to him. He told police that he was a middle man who stored the drugs for others, claiming that after the cannabis was collected from him he would be paid $50 per pound and that he had been engaged in this activity for about one to two months. 26. He told police that there were different people who would collect the cannabis from him and that some weeks there would be no pick-ups but in other weeks 20 to 50 pounds would be picked up. 27. The offender also told police that he had been living at the address in Yagoona with his mother and his son since October 2018 and that he had worked as a tiler for the past four to five years and that in the last three months he had been earning about $500 per week in that job. He told police that his wife was a chef and earned about $1,000 per week and that his son has autism and requires care and transporting to specialist appointments. He further told police that he had acquired a debt due to gambling of between $20,000 to $30,000. 28. In sentencing the offender, I need to make an assessment of the objective seriousness of his offences. As already noted, each of the offences carries a maximum penalty of 10 years imprisonment which is itself an indicator that the offences are of considerable seriousness. Nonetheless, it is important that I give consideration to the objective seriousness of the offending by this offender in this particular case. 29. As was submitted by the Crown, the offender operated as part of a syndicate. His role in that syndicate was as the packager of the cannabis which would be delivered to his house in preparation for its on-supply to a courier. I accept, as the Crown also submitted, that the co-offender Timothy Davison should be regarded as the courier for the syndicate, while Patrick Wakley and Anthony Jabour were upper line suppliers. 30. The Crown submitted that the offender's role placed him at the bottom of the syndicate. It further submitted however, that, as noted in the agreed facts with reference to the supply offence that coincided with Chinese New Year, the offender clearly had some knowledge of the supply chain or flow and knew when cannabis would become available. The Crown submitted that this indicates some degree of planning. 31. The Crown also pointed to the somewhat cryptic messages sent by the offender to Jabour on 26 January 2019 and on 31 January 2019 which were apparently some sort of code or means of communicating with Jabour about the impending supply of cannabis. 32. As the Crown pointed out, Davison was arrested on 12 February 2019, having just obtained 9 kilograms of cannabis from the offender and when police attended the offender's house 9 days later he had yet another 9 kilograms of cannabis packed and ready to go. 33. In my view, the offender occupied an important role in the syndicate's operation. He was, in effect, the warehouser and packager of the substantial quantities of cannabis that the syndicate would on-sell. He admitted to having engaged in this activity for up to two months, and that the amounts he received ranged between about 20 and 50 pounds, that is between about 9 and 22 kilograms. 34. He did this work for a relatively modest financial reward, for which he said he received about $50 per pound, in other words about $1,000 for a transaction involving 9 kilograms, and a total of about $6,000 for the six successful transactions involving 54 kilograms in total to which I have made reference. 35. In sentencing for a drug offence undue focus should not be given to the quantity of drugs involved, but this is still a relevant factor to be taken into account with other relevant factors. In this case, the amount supplied, 9 kilograms in each offence, represented 9 times the indictable quantity of 1 kilogram, although less than half the commercial quantity of 25 kilograms. 36. I accept, as did the Crown in written submissions, that the offender's participation was at the lowest level of those who have been identified. His role however was, as I have said, an important one in the operation of the syndicate. That is because without persons being prepared to carry out lesser roles, such as warehousing, packaging and acting as a courier, syndicates of this kind could not operate. It is for these reasons that severe punishments are required. 37. Having regard to the concessions made by the Crown and my own assessment of the agreed facts and what can be drawn from them, I regard each of the offences as being above the low range but below the middle range of objective seriousness. 38. Turning then to subjective matters, the offender gave evidence on sentence in which he confirmed the history he provided to a psychologist, Mr Ballardie. He was born in Vietnam and arrived in Australia in 1998, on a student working visa when he was aged 17. He is an only child and told the psychologist that his father was strict and controlling and often hit him, although he described his mother as kind and caring. Both parents, he said, placed excessive expectations on him to succeed academically and professionally. 39. I accept this evidence about the offender's childhood upbringing but it does not strike me as being of the type considered in the High Court decision of 2013 in Bugmy v R [2013] HCA 27 so as to operate to reduce the offender's moral culpability. 40. After completing high school in Melbourne, the offender moved to Sydney where he completed a diploma in accounting in 2001. He has no reported history of drug or alcohol problems. 41. The psychologist however, after administering the depression, anxiety and stress scale instrument, found that the offender scored in the severe range for depression and anxiety, and moderate range for stress at the time he was assessed, but in the severe range for depression, anxiety and stress prior to and at the time of his offending. The psychologist added that the offender's mental condition was not such that he was unaware that his behaviour was illegal. The psychologist stated also that the offender suffers low self-esteem, has low personal resilience, is pessimistic and insecure, and sensitive to criticism. 42. The offender acknowledged to the psychologist the allegations in the police facts, and also confirmed that he had acquired a debt of $30,000 from gambling. According to the psychologist, the offender acknowledged the wrongness of his actions, took responsibility for them, and regretted his behaviour. 43. While I have regard to the circumstances involving the offender's gambling problem and debt, this is not a matter that reduces his moral culpability and it provides no excuse for the offences. 44. The psychologist says that a custodial sentence will cause the offender psychological distress, that his mental condition is likely to deteriorate, and that the effect of imprisonment will be greater than the ordinary hardship experienced by others, due to the offender's pre-existing mental conditions and his fears for the wellbeing of his son. 45. The circumstances involving the offender's son took some precedence in the offender's evidence and in submissions on his behalf. An affidavit was provided by the offender's wife, who is, of course, the mother of their son, Nam, who is currently aged seven and suffers from autism. Nam's autistic condition requires that he attend weekly appointments with a speech pathologist and occupational therapist, as well as a monthly visit to an autism specialist. This history is consistent with that confirmed by the offender in his evidence and as reported by him to the psychologist. 46. The offender's wife stated that prior to his arrest the offender cared for Nam whilst she was at work and that Nam is now looked after by her landlord while she is at work. She says that in the absence of the offender, there is no one else to look after Nam, and that the offender and the child have a very close relationship, and she has seen a decline in Nam's development since the offender's imprisonment. 47. She says she cannot fault the offender as a father, and that Nam misses him immensely and asks to see him on a daily basis. She says further that she and her son used to visit the offender every Monday but that personal visits were terminated due to the current pandemic, which has had a terrible effect on her son who cannot understand why he cannot see his father. In addition, she says that she has been financially crippled and as at 9 June 2020, when she provided her affidavit, she was not working, due to the Coronavirus restrictions, and had to take out a personal loan of $10,000 and also draw $5,000 from her superannuation. 48. The circumstances described by the offender's wife and by himself relating to the child Nam and the current hardship faced by the offender's family was not challenged by the Crown and I accept this evidence. 49. The offender's wife also confirmed the offender's gambling problem, which he admitted to her before his arrest. She says the offender has expressed absolute remorse for his offending and regrets the mistakes he has made and particularly the position in which he has placed his wife and son. She says she believes wholeheartedly that the offender will not re-offend and is a changed man as a result of his incarceration and its effects on his family. 50. It was argued on behalf of the offender that I should give full weight to the evidence of the psychologist about the offender's suggested mental health issues. I have, however, exercised some care as to the weight that I give to that evidence. Firstly, the psychologist's assessment that the offender was suffering various conditions at the time of his offending was based on the offender's own self-report of symptoms, claimed to be present more than a year earlier. 51. Secondly, and as noted by the psychologist, the offender's mental condition does not mean that he was not aware of the illegality of his conduct. 52. Nonetheless, in circumstances where there is no challenge to the circumstances surrounding the offender's son's condition, or to the offender's gambling problem and financial difficulties, it would be logical and highly probable in my view that he was, at the time of his offending, stressed and anxious and probably depressed. None of this, of course, provides any excuse for his offending but it does provide relevant background to which I have had regard. 53. I also accept that the offender's time in custody has been and will be more difficult than for many inmates, due to his concern about his son and the separation anxiety that this no doubt involves. I also take into account, although to a lesser degree, the likely effects upon him of his current psychological conditions which, although relevant, are common in offenders awaiting and/or serving a sentence of imprisonment. 54. Another factor in this case is what weight should be given to the effects of hardship on the offender's family arising from his imprisonment. Counsel for the offender accepted the principle that before hardship to family can be given discrete weight so as to substantially reduce or remove a sentence of imprisonment, an offender must demonstrate exceptional hardship, something sufficiently extreme and beyond the sort of hardship which inevitably results to a family when a parent is incarcerated. It was submitted that this is such a case. There are many cases that have considered this principle. An important authority is the decision of the New South Wales Court of Criminal Appeal in R v Edwards (1996) 90 A Crim R 510. In that case, Gleeson CJ said, "There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the offender for the respondent acknowledged in argument, it may be taken that sending a person to prison would, more often than not, cause hardship, sometimes serious hardship and sometimes extreme hardship to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged in the course of their duties to sentence offenders who may be breadwinners of families, carers, paid or unpaid of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others in a variety of circumstances bound to result in hardship to third parties, if such an offender is sentenced to a term of fulltime imprisonment." 1. Counsel for the offender also cited the decision of the Court of Criminal Appeal in R v Girard [2004] NSWCCA 170. That was a case where a husband and wife had been sentenced for drug supply and there was evidence from a psychologist that the separation of both parents from their three daughters, aged 12, 7 and 4, would have a very negative impact on the children's emotional, social and intellectual development. However, notwithstanding this fairly compelling evidence, the Court of Criminal Appeal held that it did not fall within the category of exceptional circumstances referred to in Edwards. 2. I have also had regard to other cases, including Huynh v R [2018] NSWCCA 237; Winter v R [2011] NSWCCA 59; Dipangkear v R [2010] NSWCCA 156; and also R v Dibb, an unreported case of the Court of Criminal Appeal of New South Wales, 13 September 1991. 3. Of course, each case depends on its particular facts. Having considered the evidence and the case law, I am not satisfied that the impact on the offender's son and his wife amount to a truly exceptional case, such that I can substantially reduce or eliminate any period of imprisonment that is otherwise required. That does not mean, however, that the impact on the offender's family and, in particular, on his son, is irrelevant to the sentencing exercise. It remains an important part of the general mix of subjective factors to which I have had regard. 4. The offender has expressed considerable remorse, a matter which the Crown accepts. This is evidenced in his statements to his wife, to the psychologist, and also in a letter which he provided to the court, as well as in his oral evidence given on the previous occasion and also again this morning. 5. It is a matter of concern and a matter that aggravates his offending that the offender was on conditional liberty at the time of these offences, in that he was subject to a good behaviour bond imposed on 17 September 2018 by the Local Court for an offence of cultivating cannabis. A Sentencing Assessment Report provided to that court in 2018 indicated that the offender said he committed that offence in order to pay a $30,000 debt and claimed that he "had no other option". 6. You would think that the experience in 2018 of being charged and sentenced in the Local Court would have been a wake up call for the offender, but in his evidence before me he said that people told him cannabis offences were not serious. He told me that because he got off lightly, he thought that this was a confirmation of that suggestion. 7. The offender has given some further evidence this morning, to which I have had regard. He says that since he has been in custody he has given considerable thought to the question of whether he would commit a similar offence again. He says that he accepts, especially having had this custodial experience, the damage that drugs do to people. He says that he believes he will not commit further offences in the future and that his main concern is the wellbeing of is son. 8. I have taken that evidence into account, as well as the evidence I have already heard, in making some determination as to the offender's remorse and his prospects of rehabilitation. Having regard to that evidence, I consider that there remains some risk that he will re-offend in the future. I come to that view because of the risk that he may relapse into gambling and I note that he still has outstanding a debt of approximately $30,000. Notwithstanding this, my assessment is that his prospects of rehabilitation are reasonable. 9. It was submitted by the offender that I should have regard to the fact that the offences could have been dealt with in the Local Court. However, I do not consider this to be a relevant factor. In my view, given the relative seriousness of the offences and the quantities of drugs involved, it was entirely appropriate that they be dealt with in this Court. 10. It is, of course, important that sentencing judges have regard to sentences imposed on other offenders, where the circumstances are sufficiently alike, so as to ensure, as far as possible, that the punishment is reasonable and proportionate and does not create a justifiable sense of unfairness or grievance. Of course, the personal circumstances and criminality of any two co-offenders are never the same, and comparison therefore is an inexact exercise. 11. Only one of the persons referred to in the agreed facts has, to date, been sentenced, that being Mr Garry Cross. Mr Cross was sentenced by her Honour Judge Flannery SC to an aggregate term of two years imprisonment with a non-parole period of 14 months. Mr Cross was sentenced on two offences, the first involving a deemed supply of a total of 6.45 kilograms of cannabis found in various locations at his house. The second offence was one of recklessly dealing with proceeds of crime, namely $49,870 cash. Each of those offences carried a maximum penalty of 10 years imprisonment. Her Honour found that each of the offences fell towards the mid-range of objective seriousness. Mr Cross was aged 57 at the time and had a history of drug and other offences, some of which had resulted in his serving time in prison. In imposing the aggregate sentence, her Honour nominated an indicative sentence for the supply offence of 21 months and an indicative sentence for the proceeds offence of 18 months. It would appear from the agreed facts that Mr Cross was someone to whom the syndicate supplied cannabis, which he would then supply to others as part of his own business. In my view, that places his supply offence at a higher level of criminality than the current offender, who the Crown accepts was a packager only. Mr Cross also had a far worse criminal history than the current offender. On the other hand, the current offender faces sentence on multiple offences. The matters to which I have just referred highlight the significant differences between the offending and the two offenders. Nonetheless, I have had regard to the sentence imposed on Mr Cross as being of some comparative relevance. 12. The offender's custody is being, and will continue to be, served for some time, during the current Coronavirus pandemic. Whilst there have been no confirmed COVID-19 cases in New South Wales prisons to date, restrictions have been in place for some months and the offender has experienced these restrictions since February this year. Since that time he has not been able to have direct contact with his wife and son and that since then he has been able to see them only once or twice via AVL facilities. 13. The Crown accepted that these restrictions would have had an adverse impact on the offender but submitted that his concerns about his own risk in custody should be given little or no weight, given the absence of the virus to date in the custodial setting, and given that the offender is not a particularly vulnerable person. I accept that the current pandemic is of relevance, by reason of the restrictions on family visits, which are of particular relevance in this case, given the circumstances of the offender's son and wife. I accept that these conditions, which have applied for the last several months and which are likely to persevere for some months to come, have and will continue to make the offender's time in custody more difficult. 14. I have had regard to principles of totality in this case, given that I am sentencing the offender for more than one offence. I accept the Crown's submission that there should be some, although modest, accumulation of the sentences to reflect that there are four offences which were committed over a period of some weeks. 15. I have had regard to the importance of deterrence, both of this offender and of others. Deterrence is, of course, an important factor in sentencing for any drug offence. 16. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. 17. I am satisfied that a fulltime period of imprisonment is the only appropriate sentence. 18. I intend to find special circumstances to vary the ordinary ratio between head sentence and non-parole period. In my view, such a finding is justified because this will be the offender's first period in custody and also because of the need for him to be supervised once on parole, due to his problems with gambling and, to some extent, problems of a psychological nature. 19. I intend to impose an aggregate sentence which I will announce at the end of these remarks. The indicative sentences are these: 20. For the sequence 20 offence, taking into account the three matters on the Form 1 document, a sentence of two years imprisonment. For the sequence 21 offence, 15 months imprisonment. For the sequence 22 offence, 15 months imprisonment. For the sequence 23 offence, 15 months imprisonment. 21. The sentence that I impose is as follows: 22. I impose an aggregate head sentence of two years, 10 months and a non-parole period of one year, 8 months. Each of those will date from 21 February 2019, being the date on which the offender entered custody. The head sentence, therefore, will expire on 20 December 2021 and the non-parole period will expire on 20 October 2020.