District Court New South Wales Medium Neutral Citation: R v Corey Samuel Yeo [2020] NSWDC 387 Hearing dates: 22 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Criminal Before: Priestley SC, DCJ Decision: See [16-17] Catchwords: CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Supply prohibited drug — Indictable quantity Legislation Cited: Drugs Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Wong v The Queen [2001] 207 CLR 584 Newman (a pseudonym) v R [2019] NSWCCA [157] Parente v R [2017] NSWCCA 284 R v Clark [2007] QCA 168 Robertson v R [2017] NSWCCA 205 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Fangaloka [2019] NSWCCA 173 Category: Sentence Parties: Crown (Regina) Yeo (Accused) Representation: Counsel: Mr Webb, solicitor advocate, for the Crown; Ms Goodhand counsel for the offender File Number(s): 2018/00393479 Publication restriction: Unrestricted Contents Judgment Introduction Charge, maximum sentence, SNPP Form 1 procedure The facts Objective seriousness Section 21A. Subjective case Psychologist's report Guilty plea Other mitigating factors Parity Sentencing considerations Orders Judgment Introduction 1. The offender was born on 26 June 1992 and so is presently 28 years old. The date of the offending is in the period June to November 2018, so when the offender was 26 years old. The offender was arrested on 21 December 2018 and was in custody until 13 August 2019, so 7 months and 24 days, when he was released on bail into a rehabilitation facility. Apart from one further day in custody the offender was at three rehabilitation facilities at different times up until 22 February 2020 when his time at rehabilitation ended and his bail continued on his current conditions. The time spent in rehabilitation, or quasi custody, was therefore 6 months and 9 days. Charge, maximum sentence, SNPP 1. There are 5 charges under section 25 (1) of the Drugs Misuse and Trafficking Act. 2. The maximum sentence for each offence is 15 years imprisonment. There is no standard non-parole period. 3. In addition, in relation to count 3, there is a further s25(1) matter to be taken into consideration by way of the Form 1 procedure. Form 1 procedure 1. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. The facts 1. The offending was carried out in the period June 2018 through to November 2018. The offender was one of a number of people performing drug supply work at the direction of a Mr Jordy Mackay. Part of Mr Mackay's operation involved dealing with people from another drug group based in Armidale. One member of that group, Shannon Wylie, travelled on numerous occasions to Coffs Harbour to purchase drugs from Mr Mackay's group. On the facts of the present matter Mr Wylie never dealt with Mr Mackay in person. 2. The offender is referred to in the agreed facts which form part of exhibit A as a middleman. My view is some caution needs to be used in adopting that term. He is not a middleman in the sense of say a real estate agent being the middleman between a buyer and a seller for he does not promote the sale or perform any organisational role. Rather the offender simply delivered drugs from Mr Mackay or at his direction to Mr Wylie or to Mr Wylie in company with a Mr Faulkner and on one occasion then collected money from the buyers and to deliver it to Mr Mackay or his agent. 3. There is no suggestion that the offender was paid for his work in cash but rather he was paid in kind. Just how much drugs were supplied to the offender for the work he did is not clear. 4. I will set out the particulars of each of the counts in chronological order as they appear in the facts: 1. Count 3: on 29 June 2018 the offender supplied 28 g of MDMA to Mr Wylie. To affect this transaction Mr Wylie attended at the offender's home. They then drove to the bank for the offender to withdraw cash. This would not seem to be by money given it is the offender's money and the connection of this withdrawal to the offence is not clear. They then returned to the offender's home. A third person arrived and then drove away and Mr Wylie then drove the offender to the yacht club. The conclusion to draw is that sometime in the course of those interactions, most likely when the third-party arrived, the offence occurred. The drug was MDMA and the quantity was 28 g of a purity of 18%. 2. On 16 June 2018 the offender supplied 28 g of cocaine in rock form to Mr Wylie. This is the form one matter to be considered with count 3. Mr Wylie again met the offender at his residence. The inference here is that the offender held the cocaine at his residence for Mr Wylie to collect. There is no reference to any money changing hands here. 3. Counts 5 and 2: count 5 is supplying 65.4 g of MDA (300 pills) and count 2 is supplying 28 g of cocaine. The evidence supports Mr Wylie always dealing with Mr Mackay through the offender. On this occasion Mr Wylie was with the offender and Mr Faulkner was also present. They were at Renshaw Lane. Mr Mackay and others attended near this location whilst Mr Wylie and Mr Faulkner and the offender were still there. Shortly after Mr Wylie and Mr Faulkner were recorded discussing the purchase of 28 g of cocaine and subsequently on supplied to a UCO in Armidale 300 MDA pills. The cocaine was 25.5% pure and the MDA was 3% pure. 4. Count 1: this is the supply of 84 g of cocaine on 25 October 2018. The facts here show the offender meeting with Mr Mackay and then leaving to meet up with Mr Wylie and Mr Faulkner who then afterwards are seen to have cocaine in their possession. The cocaine was 24% pure. 5. Count 4: this is supplying 112 g of cocaine on 7 November 2018. Unlike the other counts there is express reference to cash here, specifically $14,000. This was given to the offender by the Armidale buyers and then taken to Mr Mackay who then provided the 112 g of cocaine at 12% purity to the offender who then took it back to Mr Faulkner and Mr Wylie. The facts here reflect a similar situation as to count one with the offender picking up a package firstly from the buyers Mr Wylie and Mr Faulkner, attending a location connected to Mackay and then returning to the buyers. Objective seriousness 1. The agreed facts show involvement by the offender in drug dealing consistently over a period of approximately 6 months. In all of the matters except count 5 the amounts are of ounces not grams, that is they are of 28 g or multiples thereof. We are not dealing with small supplies of street level dealing. The supplies being made it seems reasonable to conclude are then to be on supplied either at the retail level or directly to the street level. The level at which the offender is involved in drug supply is therefore not the most basic and I say below the mid range. 2. There is no agreed fact that would support a conclusion adverse to the offender other than that he was a person who carried out deliveries and collections of drugs and money respectively for Mr Mackay. He was not a person who made decisions or prepared drugs for sale by way of weighing them or packaging them or performed any organisational or other role. 3. It is notable that there is only one count where there is express reference made to a specified amount of money being involved in these transactions. This was count 4 where the offender collected $14,000 of cash. There is no reference at all, and it appears to be the agreed position, to the offender being paid any money. Indeed the facts do not disclose the offender receiving any drugs either though it is conceded that he did receive payment in kind. 4. One point of significance of that is that it suggests perhaps the offender was not a hugely trusted agent of Mr Mackay as he does not deal with money apart from the one occasion. Against that however he is clearly trusted to handle the drugs and given his drug dependency at the time that is some level of trust. A second point of significance is that the evidence does not allow for a finding against the offender of him being significantly rewarded for his criminal conduct. 5. I have made reference to the quantities of drugs involved. Wong v The Queen [2001] 207 CLR 584, made clear that the weight of the drug is not the sole or even determinative criterion. 6. Whilst it has often been said that the weight involved is not determinative of seriousness it certainly remains a factor to be considered. In Newman (a pseudonym) v R [2019] NSWCCA [157] it was said (at [10]) when dealing with an error by the sentencing judge as to the weight of the drug: 7. Clearly the error could have affected the sentencing; there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold 8. In this case the quantities were all comfortably beyond the indictable level, but were, with one exception, even more comfortably below the commercial level. 9. It is necessary to consider each offence separately. Each of them has the above characteristics. Each of them show the offender doing what he was told and performing an entirely functionary task without any degree of autonomy or proactivity. I consider that the weight of the drugs is significant and adds to the seriousness of this offending. I note the offender's evidence that he was unaware of just how much drugs were involved but I find that not terribly persuasive even if true and I accept it is. Whatever weight he may have thought was involved it should have become obvious to him fairly early on that this was no half gram deal of cocaine. 10. I consider this to be less than the mid-range of objective seriousness and would put it in the upper half of the low range. There is no basis on the facts to meaningfully distinguish each count for the purpose of this assessment and I would assess each count in that way. I would similarly assess the form one matter. Section 21A. 1. The only aggravating factor present here is arguably that the offending was carried out for financial gain. My view is that obtaining payment in kind is financial gain. There is however very little if any evidence to determine just how much drugs were being provided to the offender for his services. Whilst that is an aggravating factor is difficult to give any significant weight to it. 2. The offender relies on a number of mitigating factors none of which are seriously disputed by the Crown and I will address them below. Subjective case Psychologist's report 1. The offender relies upon a report of Ms Dombrowski, psychologist, dated 21 May 2020. She records a history of a gambling addiction at the time of the offending. The offender was employed at that time and it appears he has been working as a plasterer for most of his adult life and in fact has already obtained such work since being on bail with one of his referees, Mr Anderson. 2. His gambling caused him some issues with low mood and at the time of the offending the report states he was using cocaine. Consistent with what was said in court he said he agreed to supply drugs to fund his own cocaine use. 3. The offender expressed remorse saying he now realises how drugs affects people which he did not fully appreciate before. He in fact said he was glad to have been caught as it has taught him to deal with his emotions and to accept things. 4. The offender comes from a blended family with no aspects of dysfunction. He left school during year 11 with some minor issues of an unremarkable nature and after working for 6 months took up an apprenticeship in plastering. 5. It would seem that until about 2017 he was engaged in a healthy pro social life although did suffer from feelings of anxiety in social contexts and gambling was an early concern. It was after the end of a relationship in 2017 that his heavy drinking and cocaine use began. He was also gambling about $130 per day. He has not gambled since his arrest and as I understood his evidence in court has remained abstinent from drugs and alcohol in that time as well. 6. The conclusion reached by the psychologist is that the offender is not inherently antisocial. His background up until 2017 supports this. It is said his offending behaviour functions from his substance use which I take to mean arises from it. I would agree with that assessment. 7. The offender is currently accessing group based peer support and counselling support and attends AA and NS. This follows on from his residential rehabilitation. Ongoing contact with these supports is important to support his lawful and stable functioning in the community doubtless by promoting a lifestyle free of his substance abuse which leads to the offending. 8. The offender also relied upon a sentencing assessment report dated 8 April 2020. The views expressed in that report and the history given were largely consistent with what was stated in the psychologist report. He was assessed as a medium-low risk of reoffending. I prefer the psychological report to the SAR as it is a more thorough and considered assessment. In particular I note the view at paragraph 15 of the psychologist report that the offender is not inherently antisocial and whilst no express assessment is made of the likelihood of his reoffending the view I come to is that based on the pro social background of the offender, the fact that he is considered by the psychologist not to be inherently antisocial, and the steps he has made towards rehabilitation, leads me to find that he is unlikely to reoffend, subject always of course in the case of people with substance abuse history to the offender remaining abstinent. 9. It is convenient to note here that the offender gave evidence at the sentencing hearing. He adopted everything he had said to the psychologist and also to the author of the sentencing assessment report. He detailed in his evidence the circumstances of the 3 different rehabilitation periods he attended. The offender spoke well and was measured in his evidence. He outlined the strict conditions of the first two rehabilitation placements. The third was not so strict which seems to have been something more like a halfway house which permitted substance abuse inhabitants to attend the pub on a daily basis. Favourably to the offender despite that he has remained abstinent. The first two more strict placements imposed upon him study like conditions to attend meetings and work on 12-step programs. The view I have formed is that the offender has benefited markedly from the rehabilitation that he has undergone but that it is something that he needs to maintain. The application he showed in not being corrupted at the third rehabilitation placement augurs well for his ability to continue to adhere to the practices he has adopted whilst on bail. It is to be sincerely hoped that that once the day of sentencing has passed he does not relapse into his addictive state and that he can maintain the healthy habits and practices he has now adopted. 10. Also supporting the offender were a number of testimonials. One was from his current employer which evidences the availability of full-time ongoing employment. There were 2 further testimonials from people who had met the offender in the course of his work and they both speak highly of him. 11. The offender also relied on a letter he had written to the court where he again expresses deep remorse and sorrow and I accept those expressions as being sincerely made. He again sets out, as he told the psychologist, his realisation now of the negative effects that drugs have on the greater community and acknowledges the selfishness of his behaviour and the hurt caused to others when he gave way to his addiction. Guilty plea 1. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point. Other mitigating factors 1. I have found above that I consider it is unlikely the offender will reoffend, subject to remaining abstinent. This view is supported by his pro social background, his conduct since his arrest, and the psychologist's report. Further it is consistent with the remorse that I have found that he genuinely expresses. 2. For these reasons and the offender's work history, and expressed work intentions, together with the family and community support that he appears to have, I also consider the offender to have good prospects. Parity 1. As is set out in the facts this offender is one of a number of people acting at the direction of Jordy Mackay. I do not consider the offending of the current offender to be anything like as serious as that of the offending of Mr Mackay who faced 9 charges including a charge of directing the activities of a criminal group, 3 charges of supplying a large commercial quantity of drugs which carries a maximum penalty of life imprisonment and 3 charges of supplying a commercial quantity of prohibited drugs which carries a maximum sentence of 20 years. Those offences also have standard non-parole periods of 15 years and 10 years respectively. The maximum sentence for the present charges is 15 years with no standard non-parole period. 2. Nor do I consider the cases of Mr Wylie or Mr Faulkner to be relevant in this regard. They were the people connected to the Armidale drug syndicate to which this offender was delivering the drugs. Two people who are more comparable are the cases of Mr Sinclair Hull and Ms Kelly. In Mr Sinclair Hull's case there was one charge under section 25A (1) made up of 6 occasions of supplying a prohibited drug within 30 days in the amounts of 9.6 g, 3.5 g, 1 g, 7.2 g, 1 g and 1 g. The first and fourth charges involved pills and ecstasy and the other 4 occasions all involved cocaine. Mr Sinclair Hull had a reasonable to good subjective case and was in his early 20s. He had a criminal history of greater significance than the current offender. I would consider the offender's case subjectively more favourable than Mr Sinclair Hull's. The sentence imposed on Mr Sinclair Hull was a community corrections order for a period of 18 months. He was also dealt with for having breached an earlier community based order. 3. In the case of Ms Kelly she faced 3 very serious charges under section 25(2) being 2 counts of supplying a commercial quantity of a prohibited drug and one charge of supplying a large commercial quantity of a prohibited drug. The maximum penalty for those offences is 20 years and life respectively. Ms Kelly had a very strong subjective case comparable in various respects to the present offender. She also had a case similar to the current offender in terms of her involvement in Mr Mackay's operation in that she simply did as she was told by Mr Mackay in collecting and delivering drugs. Ms Kelly received a 3 year term of imprisonment to be served by way of an ICO. In reaching that conclusion I was influenced by the matters that I have detailed in that judgment but it should also be noted she was particularly young being 19 at the time of the offending. 4. In my view given the seriousness of the offending of Ms Kelly and given the comparable nature of the objective and subjective circumstances of her offending to the present offender and given that on one view it is well arguable that her offending was the more serious, I consider that the offender in the present case would have a justifiable sense of grievance if he were to receive a full-time custodial sentence. The most significant aspect of the matter that needs to be considered to determine if this is possible is whether the sentence arrived at is 3 years or less so that an ICO would not be prohibited by section 68(2). Sentencing considerations 1. The approach to sentencing in drug matters was considered in Parente v R [2017] NSWCCA 284. One aspect of significance of that case was its express rejection of what had become known as the principal from the case of R v Clark that where there was drug-trafficking to a substantial degree there was ordinarily required a sentence of full-time imprisonment unless there was exceptional circumstances. In Parente the court adopted the view of Simpson JA in Robertson v R [2017] NSWCCA 205 which was to the effect that where there has been drug dealing to a substantial degree analysis of sentencing practices shows a term of imprisonment will ordinarily be imposed. The point being made however was that is not to be taken as a starting point and that each case relating to drug dealing needs to be dealt with consistently with ordinary sentencing principles. 2. Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community. 1. The purposes that attract the most attention in the present case in my view are deterrence, to recognise the harm to the community, to protect the community, and rehabilitation. 2. Adopting the approach set out in Parente, and taking into account all of the matters discussed above, my view is that the s5 threshold is crossed. The offender has committed 6 serious drug offences over a period of 6 months, and in my view no other penalty is appropriate other than a sentence of imprisonment. 3. Before turning to the question of how any term of imprisonment is to be served it needs to be determined how long such a term of imprisonment will be. The offending in my view can be viewed as a continuing course of conduct in a particularly tumultuous period of the offender's life. That said however each offence needs to be considered separately. 4. The maximum sentence as noted at the beginning of these reasons for each offence is 15 years. I have assessed each offence as being in the low range of objective seriousness and have set out the subjective features of the offender. My view is that there should be a 15 month sentence in respect of each offence and a 18 month sentence in respect of the offence where the form one matter is to be taken into account. I would then apply the 25% discount due to the guilty plea. 5. There should however be a marked degree of concurrency due to the principle of totality. I propose reflecting this by way of an aggregate sentence. The above sentences can be taken as the indicative sentences. It is misleading and irrelevant to think of the total of those indicative sentences. Rather in line with the totality principle the aggregate sentence should reflect the overall criminality involved. I note in respect of totality R v Holder [1983] 3 NSWLR 245 which calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. 6. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said: 7. "[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 8. It also needs to be taken into account that the offender has already spent some 8 months in custody and some 6 months in quasi-custody. In my view that should be considered as a total of 11 months custody. 9. Bearing those principles in mind I would impose an aggregate sentence of 3 years to date from the date of this order. As a result by reason of section 68(2) a community-based sentence is available. 10. In my view this is a case which provides a good example of why incarceration is not necessarily the best way to protect the community. The offending that has been committed is serious and repeated and is deserving of punishment. Yet at the same time it is obvious that this offender until about late 2017 was a young man with a good work history with a functional family, in a relationship and I would infer looking forward to a prosperous and happy future. The seed of his downfall was his addictive nature as reflected in his long-term gambling habit. All the indicators that I have considered above favour the offender; that is he is remorseful, he acknowledges his wrongdoing and he has good prospects going into the future as demonstrated by the fact that he already has a job and has now been abstinent of drugs and alcohol and gambling since his arrest in December 2018. My view is it is far better for the overall well-being of the community that his rehabilitation be facilitated and continued by being permitted to remain in the community and to continue the resumption of his pro social life. He is now better equipped to do so for he now has realisations as to his behaviours which he did not previously have. There remains of course the ever present risk of relapse. 11. If a relapse were to occur, then the consequence of a community-based sentence such as I intend to impose is that if the offender fails to live up to the implicit promises he makes through those representing him, that is if he does not continue on that the hoped-for pro social path but returns to his antisocial behaviour, then the great likelihood is that he will return to prison. 12. To put that in terms as spoken of in Fangaloka [2019] NSWCCA 173, my view is that the rehabilitation of the offender needs to be facilitated and continued and the evidence is that based on the residential rehabilitation history that is something best achieved for this offender in the community. It will not be able to be so continued by a return to prison in the same way, as the steps he is taking are simply not available in prison, for example to further his work career. To adopt the words of section 66 (2) the likelihood of reoffending in my view based on the evidence before me is much less by imposing a community-based sentence. It also achieves other purposes of sentencing such as punishment and deterrence albeit perhaps less markedly than a full-time term of imprisonment. Taking all those matters into account however an ICO outcome is appropriate. 13. For completeness I should note that in my view if the conclusion had been that there should be a full-time custodial sentence I would have made a finding of special circumstances due to it being the first custodial sentence of the offender and due to the need for extended period of supervision upon his release to aid in the rehabilitation of his addictive behaviours. Orders 1. Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at a term of imprisonment of 3 years. That sentence is to be served by way of an intensive correction order on the terms I will set out below. 2. I make the following orders: 1. Corey Yeo for the offences charged under section 25(1) Crimes Act you are convicted. 2. I sentence you to a term of imprisonment of 3 years to be served by way of an intensive correction order on the following terms: 1. The term of the ICO is 3 years commencing today 24 July 2020 and expiring 23 July 2023. 2. The offender must not commit any offence. 3. The offender must submit to supervision by a community corrections officer. For this purpose I direct you to attend at the Coffs Harbour office of Community Corrections as soon as possible and no later than 4 PM 31 July 2020. 4. The offender must abstain from alcohol and all illegal drugs and all prescribed drugs not prescribed to the offender. 5. The offender must not possess any illegal drugs. 6. The offender must not associate with those that he formerly associated with in connection with drug supply. 7. In addition to following all recommendations of the community corrections office as to any counselling and other treatment the offender is to within 7 days contact his GP for the purpose of making an appointment to obtain advice as to an appropriate counsellor for his social anxiety and drug alcohol and gambling addiction issues and within 7 days after that appointment make an appointment for such counselling and then attend at that counselling for so long as it is directed by that counsellor, for so long as it is financially viable for the offender to do so. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2020