District Court New South Wales Medium Neutral Citation: R v Wu [2021] NSWDC 634 Hearing dates: 5 October 2021 Date of orders: 5 October 2021 Decision date: 05 October 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: A term of imprisonment of four years, with a non-parole period of two years and one month: at [39]. Catchwords: SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Maximum penalty — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519 Category: Sentence Parties: Regina (Crown) Isabella Wu (Offender) Representation: Mr D Robinson (Crown Prosecutor) Mr B Barrack (Counsel for the Offender) File Number(s): 2019/347788 Judgment 1. Judges of this Court and the Court of Criminal Appeal have said, on many occasions, that the sale of illicit drugs causes considerable harm, not just to those who purchase and take the drugs but also to the community in general, because the illicit trade in drugs is a principal source of crime in the community. It is not just the crimes committed by the sale of illicit drugs, it is the crimes that are committed by those who seek to obtain funds for drugs, the crimes which are funded by the profits that can be made, and ultimately the destruction of personal and family life that drugs cause. 2. The court must bear in mind sentiments such as that, and the maximum penalty of a term of imprisonment of 20 years and the standard non-parole period of 10 years, for an offence of supplying a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 when sentencing Isabella Wu. 3. Isabella Wu is now 26 years of age and has pleaded guilty to such an offence at an early stage, justifying 25% discount on any term of imprisonment. 4. It is conceded by Mr Barrack that a term of full-time custody is required, and the s 5 (of the Crimes (Sentencing Procedure) Act 1999) threshold has clearly been crossed in this case. 5. Ms Wu has been in custody since her arrest on 5 November 2019, and clearly, any sentence should commence on that date. 6. The agreed facts are lengthy but contain only three paragraphs particularly relevant to her involvement in a substantial drug running syndicate which operated throughout Sydney during 2019. I have previously sentenced three people to lengthy terms of imprisonment, Mr Chami, Mr Halloum and Mr Hassoun and the facts upon which they were sentenced and the subjective cases are set out in my remarks in sentencing them on 18 June 2021 and need not be repeated here (R v Chami; R v Hassoun; R v Halloum [2021] NSWDC 519). 7. In short, police uncovered the operation of the criminal group involving Chami, Halloum, Hassoun and others, including this offender, which operated a cocaine supply business. Customers placed orders for cocaine by text message, primarily through messages out of mobile telephone services operated by the group. Once an order was received, a text message would be sent to a runner, who would supply the cocaine to the customer. Typically the group supplied deal bags of cocaine for $300 each which contained between .6 and.7 grams. The group conducted about 150 of these transactions each week, supplying around 200 deal bags of cocaine per week with estimated earnings of $60,000/ week. The runners were paid $20 or $25 per deal bag. 8. The runners usually attended a residence at the start of their shift and collected 10 deal bags of cocaine to supply at the direction of the users of the call centre mobile services. After successfully supplying 10 of those bags, the runner would return to the residence and hand over the proceeds from the sales and collect further bags to supply. 9. The offender worked for the group as a runner between 11 July 2019 and 3 November 2019. During this period police intercepts of the call centre phone services and other electronic devices revealed she supplied not less than 416 bags of cocaine which, at .64 grams per bag equated to 266 grams of cocaine, in excess of the commercial quantity for cocaine of 250 grams. At that rate of pay of $20 to $25 per bag, it is agreed that she received between $8,320 and $10,400. The surveillance footage also showed that she frequently cleaned the residence at Croydon Park and purchased items such as rubber gloves, bin bags and freezer bags which could be used by other members of the criminal group. 10. She was arrested on 5 November 2019 and declined to be interviewed. 11. She has given evidence today in court. 12. Her record contains a conviction for supply a prohibited drug occurring on 26 February 2016, for which she was sentenced in this Court on 24 July 2017, to an intensive corrections order for nine months. There was also possess prohibited drug and a deal with proceeds of crime charge involved there. 13. The offender breached the conditions of the intensive corrections order by failing to complete the community service work condition. The ICO was revoked and she served a period of just over one-month imprisonment, expiring 1 May 2018. The offending in that earlier case, as the Crown submits, was very similar to the current offences. In that case, she drove a car into the CBD of Sydney and supplied two small bags of cocaine to a customer. In the glovebox of the car there were four small bags of cocaine containing a combined quantity of 2.18 grams; another three bags in the console of the car, 1.75 grams and a total of $865 cash; and then, concealed on the offender, were a further nine bags of cocaine containing a combined quantity of 4.42 grams. 14. The evidence in the offender's case includes a report of Michelle Powell, a clinical psychologist. The Crown initially took objection to parts of that report, but withdrew those objections after the offender gave evidence. 15. It was clear that at the request of her lawyers in 2017 she saw Ms Powell, the psychologist and a psychiatrist, Dr Dayalan, for the purposes of providing reports for the sentence before the court in 2017. 16. The psychologist suggested that there were diagnoses of ADHD and bipolar 2 disorder but there is no evidence of any medication for those conditions and it is not put that they carry any significant weight in the sentencing process. 17. She has been in contact with the psychologist on several occasions while in custody and I accept, in the light of her abstinence while in custody for almost two years, that she has been able to demonstrate some insight into the impact that her offending has had on her and her family and the broader community. I accept her expressions of remorse and contrition and her desire to turn over a new leaf and re-join society as a productive member of the community. 18. There is a lengthy reference from her cousin, Christine Wang, who is a law student and a law clerk with a firm of lawyers. She speaks of the turbulent family background, involving conflict between her parents regarding infidelity with another woman in the Chinese community, which would involve bullying of the offender recorded in police reports and bullying at school. The reference notes that the offender worked as a paralegal at a law firm and studied at university in the field of construction management but the tension and turbulence within her parents' marriage remained and her depression led to her seeing a psychologist on a regular basis. She described an episode where her the offender's mother attempted to exorcise demons and she also she described an episode of sexual assault by a babysitter at a very young age. Ms Wang speaks consistently with the offender of her studies undertaken while in custody and her desire to engage in useful employment and contribution to society. She has, as Mr Barrack points out, engaged in a Remand Addictions course on two occasions. 19. The contents of the sentence assessment report are not entirely favourable to the offender. She explains some of the history contained there as due to her difficulty or reluctance in speaking candidly in a custodial setting with the author of the report. 20. She is employed as a sweeper at her current correctional centre, which is known to be a trusted position in the custodial environment. She says that she agreed to distribute cocaine for a criminal enterprise and she attempted to minimise her criminal conduct by presenting herself as having a minor role in the enterprise. She justified her offending behaviour by the need to obtain financial resources to fund her living requirements and she appeared to be evasive when discussing her criminal activities by providing a superficial recount and preferring to skim over aspects of her offending. 21. I must say that, to a certain extent, her evidence today was consistent with that impression, but she clearly acknowledged to the author of that report that she had involved herself in the criminal enterprise to obtain financial benefit by assisting to distribute cocaine and she considered it an easy path to finance her living requirements. Although she did describe a well-established pattern of cocaine and cannabis use, which she described as being excessive and her consumption of drugs was exacerbated by life stressors, financial strain and pro-criminal companions at the time. 22. Fortunately, she was able to demonstrate an insight into the impact of her offending, a willingness to engage in interventions and was ultimately assessed as being a medium risk of re-offending. 23. She describes the additional restrictions imposed by a custodial period during the COVID pandemic, including no family visits for many months. She has consulted with the psychologist while in custody, as I have indicated. 24. She said that she first started using cocaine when she was about 18 and was also using cannabis. She stopped using drugs in 2016 when she was charged, but then within a few months of being released, after the expiration of the ICO, she started using drugs again. She was using a ball every second or third day. 25. She initially said she paid for this with her criminal activity but then said that she was paying about $500 per ball, which does not seem consistent with the evidence as to the finances of the syndicate and the charge of $300 for a .6 gram deal bag. The Crown, in submissions, correctly points to matters going to the objective seriousness of the offending. The quantity of cocaine supplied by this offender was just in excess of the commercial quantity threshold. She was working for a syndicate that supplied a quantity of 1.224 kilograms of cocaine over a period of five months, and she supplied 416 individual bags of cocaine to hundreds of customers during that period. She actively assisted the syndicate in cleaning the base of the operations and purchasing items. 26. Of course, the mere quantity of drugs involved is not the sole or principal determinate of the sentence. The role of the offender is more important, as is the level of her participation in the offence. As the courts recognise, those at the top of a syndicate have greater power and receive most of the profits. Determining a person's position within the hierarchy involves examination of the danger of apprehension. Those people that have possession of the drugs expose themselves to apprehension and are considered to be lower in any hierarchy. 27. The standard non-parole period, of course, is a significant yardstick in the sentencing process and it is necessary to consider how the offence compares to an offence in the midrange of objective seriousness, having regard only to the objective factors. I accept that this falls towards the mid-range of objective seriousness and is above the lowest end of the range of criminality, which was the submission put by Mr Barrack. 28. It is true, of course, as Mr Barrack puts, that there was no evidence that she had purchased the cocaine, that she financially contributed to setting up the operation, that she cut the cocaine or packaged it or had any managerial role, that she was engaged in in the call centre operation, that she sought out customers or that she had any significant financial gain beyond that agreed. While it is legitimate to point to the absence of evidence of those factors, it is, as I have indicated, more significant to point to the things that she did and her role in the syndicate in assessing objective seriousness in the way that I have done. 29. I accept that there is no significant degree of planning involved in excess of that usually expected for a drug supply offence such as this. 30. Her record of previous convictions, as I have indicated, does not entitle her to leniency. 31. In terms of mitigating factors, I accept that she has reasonable prospects of rehabilitation, she has demonstrated remorse and she has, of course, pleaded guilty, as I have indicated. 32. A submission is put that her moral culpability should be slightly reduced, given that the offence was primarily to support her drug habit. I am unable to find that the involvement was primarily to support her drug habit, in the light of her statements to the author of the sentence assessment report and in the light of her evidence today. Although I do accept that her drug habit had some influence on her involvement in the syndicate, but it was also significant that she was doing so for financial gain to fund her lifestyle. 33. I take account of the difficult family background, and the Crown acknowledges that it would be appropriate to factor that into the sentencing process. The Crown also acknowledges the difficulties with people serving sentences during the restricted environment under the COVID pandemic. 34. As Mr Barrack has pointed out, in recent decisions this Court has noted that the steps which have been taken by Corrective Services in response to the pandemic have had significant negative impacts on inmates' wellbeing, social-family visits being suspended and conditions of incarceration are more onerous. Access to telephone calls and AVL links has increased but there are still fewer programs, reduced work opportunities and more frequent lockdowns when prisoners are confined to cells. Those measures, although designed to protect inmates against contracting the COVID-19, will necessarily negatively impact the quality of life endured by an offender in custody and I take those factors into account as being common ground. 35. I accept that the need for specific deterrence has been partially met by her good behaviour and abstinence during her significant period in custody prior to sentence. It is also, of course, necessary to take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and the need for general deterrence to loom large in the sentencing process. 36. The Crown has provided an extract of the relevant sentencing statistics but, as the Crown points out, the statistical material demonstrates the patterns of past sentences for an offence only by way of a yardstick, by which the sentencing judge may assess a proposed sentence. 37. Mr Barrack's ultimate submission was that the time already served by the offender was an appropriate non-parole period. However, in the circumstances of this case, that is an unduly optimistic submission. 38. The orders that I make are: 1. The offender is convicted of the offence. 2. Taking into account the 25% discount for the plea of guilty, I impose a sentence of four years, commencing 5 November 2019. 3. I impose a non-parole period of two years and one month expiring 4 December 2021. 4. I find special circumstances on the basis that there is a clear need for an extended period of supervision, and this is, in effect, her first period of fulltime imprisonment. Note – These remarks were revised without access to the court file. ********** 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: 25 November 2021