New South Wales District Court CITATION: R v Peter LEE [2008] NSWDC 332 HEARING DATE(S): 2 October 2008 28 November 2008 JUDGMENT DATE: 28 November 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: In each case sentenced to imprisonment consisting of a head sentence of 3 years with a non parole period of 18 months. Sentences to be served concurrently. CATCHWORDS: Criminal law - Sentence - Supply prohibited drug PARTIES: The Crown Peter Lee FILE NUMBER(S): DC 2008/11/0130 SOLICITORS: NSW DPP Tony Newton Solicitor JUDGMENT 1 HIS HONOUR: The offender appears today for sentence after having pleaded guilty at an early stage to two offences of supplying a prohibited drug. The first relates to the drug more commonly known as ecstasy - 3,4 methylenedioxymethylamphetamine. The second drug is one not often seen in the criminal law, 4 bromo 2,5 dimethoxyphenylethylamine. The offender had almost the commercial quantity of that second drug because the commercial quantity of that second drug is twenty-five grams and the offender was in possession of 21.74, of it. He had much less than the commercial quantity of ecstasy, having only 18.26 grams of that drug in his possession for the purpose of such supply. 2 The offender's wrongdoing was detected when, at about 1.50am on Sunday 12 August 2007, uniformed police officers had their attention drawn to what appeared to be hostile activity between a number of men in the Haymarket area of the city. The police officers commenced to disperse the men. Because of the offender's actions, the police decided they would speak to him. They approached him and two other men, told them to sit down and keep their hands where they could see them. All three men did sit down but Constable Eckett observed the offender fiddling with his hands in his pockets. He was told to remove his hands but the offender, although pretending to comply, did not do so. Eventually the offender succeeded in doing what he was trying to do, which was to get rid of a large number of tablets which he had in his pockets. Constable Eckett saw the offender throw numerous pink and blue coloured tablets into the air. They landed on the ground near where the offender was seated. Constable Eckett said "What was that?" to which the offender replied "Nothing, you can't prove nothing". The offender was arrested, the tablets and three plastic bags were recovered from the ground. The offender was also searched and $145 was located in his right rear pants. The tablets were later analysed and, as I mentioned, there was 18.26 grams of ecstasy and 21.74 grams of 4 bromo 2,5 dimethoxyphenylethylamine. The ecstasy tablets had a purity of 34.5 per cent but the other tablets had a purity of only three per cent. 3 There were a large number of tablets involved, 152 in fact. What was the offender doing with 152 tablets of either ecstasy or some drug similar in nature? Well that has been difficult to determine. The offender gave evidence, his first language is not English and frankly I found it very difficult to understand what he was saying because of the strong accent with which the offender spoke. At the conclusion of the proceedings on 2 October 2008, I ordered that a transcript be obtained. I was concerned to ensure as much fairness as possible to the offender. It appeared to me, from what I could hear, that the offender had contradicted himself in many ways when giving evidence, but I recognised that may have been due to my misunderstanding of what the offender said. The transcript has now been obtained and it is agreed that it is an accurate reflection of what the offender said, or at least there was no challenge to its accuracy. Let me take one example of the offender's version of events. It concerns when he was given the drugs, which were later found by police. The offender's version was that he was merely the patsy in that a number of people had decided to pool their money in order to buy drugs at a cheaper price and that they were intending to share them once they got into a nightclub. The offender's version was that he was the one who was asked to hold the drugs and that it was certainly not the case that he had the drugs in his possession so that he could sell them to party goers at the nightclub. The question then arose as to when he came into possession of the drugs. The first version of events has the offender being given the drugs in a car on the way into the city. He was asked this question: Q. When were these drugs actually given to you? A. Oh, was that time before we went to the city. Q. Before you went to the city? A. No, we got in the city. Q. Pardon? A. We got in the city there, he gave me there. In the car." 4 The Crown asked a question and then repeated a similar question saying "I'll just ask the question again." "Q. You were given the drugs outside the Golden Palace? A. No." 5 I intervened and said: "Q. Where were you given the drugs? A. Inside." 6 The third version of events is this, in response to a question: "Q. You said you got the drugs inside the Golden Palace but you said you hadn't been inside the Golden Palace." 7 That being an accurate reflection of what I understood to be the offender's evidence at that stage. The offender said: "A. I got the drugs at home. We went to the city, I was still holding the drug." 8 I have to recognise of course that there is considerable scope for the offender misunderstanding the questions that were asked of him because of language difficulties. There is also considerable scope for the offender misstating what he intended to say. Even making allowances for that, however, I have to say that the offender has been unable to give a coherent version of events whenever he is asked the details as to how it was that he came to be in possession of the drugs. I am not satisfied, on the balance of probabilities, that the offender did have the drugs for the purposes that he said he did, that is I am not satisfied on the balance of probabilities that all he was doing was minding drugs bought by others so that they could be shared amongst a number of people, including the offender. But nor am I satisfied beyond reasonable doubt that the offender intended to sell the drugs to party goers whom he did not know. This is a matter where I am unable to be precisely sure exactly how it was that the offender came into possession of the drugs and precisely why he had them. I will sentence the offender for what he did then, that is, had the drugs in his possession for the purposes of supplying them. 9 The offender's background is set out in the report of a Dr Jacmon, as well as a pre-sentence report. The offender was born in Vietnam and when he was very young he was abandoned by his mother. He was one of a twin and his mother held onto his twin brother. He was adopted by a family in Vietnam. In 1984 he and his adoptive family moved to Sydney, him being sponsored by one of his step sisters. His adoptive father had died some time before. The family settled in Bankstown and the offender attended high school in the area. He could not settle into schools and left school after repeating a number of years. He has worked on occasions and a reference from an employer was tendered before me attesting to his good work record. He has formed a relationship with a woman. They have two children, Nina aged three and Jamie who is one. There is a poignant circumstance concerning Jamie. Jamie was a twin whose brother, Taylor, died. The death of Taylor was, as Dr Jacmon says, a distressing reminder for Mr Lee because he was one of twins who did not grow to know his family. It is suggested that Mr Lee found that ecstasy gave him relief from his ever present distress about his abandonment and the death of his twin child. He thus became a recreational drug user. 10 There are a couple of matters in Dr Jacmon's report worthy of comment. The first appears on page 15. There Dr Jacmon says: "Mr Lee's actions which led to offending reveal highly impaired judgment because there appeared to be little thought given to the fact that by holding supplies of the drug for those attending the party he was committing a serious offence." 11 I note that Dr Jacmon accepts, without question apparently, Mr Lee's version of events, but that is not the most important part of what Dr Jacmon there said. The only reason that Dr Jacmon suggests for his conclusion that the offender had highly impaired judgment is the fact that he committed the offence with little thought. In other words, it is the very commission of the offence which seems to almost entirely, if not entirely, justify Dr Jacmon's opinion that the offender had highly impaired judgment. One wonders how Dr Jacmon would treat any offending behaviour by an individual in circumstances where there is a risk of being detected. The second aspect of Dr Jacmon's report worthy of comment is related to that because he says at page 11: "The background indicated depression and substance abuse at the time surrounding the incidence now before the court." 12 When this matter was before me on the first occasion I attempted, with the help of Mr Newton, to identify what it was that entitled Dr Jacmon to say that the offender was depressed at the time he committed the offence. There was little, if anything, to justify Dr Jacmon's conclusion. In those circumstances, Dr Jacmon's report is of limited utility. 13 The offender pleaded guilty, not at the first opportunity, but after arraignment in this Court. The two pleas of guilty have utilitarian value of course, which I will reflect in appropriate discount of the sentences I would otherwise have imposed. In this case the discount will be both in the sentence I have decided to impose, together with the fact that what would otherwise have been a short period of accumulation will no longer apply. I will instead order that both sentences are served concurrently. The offender has no significant criminal record of prior offences. There are some matters on his criminal history but nothing of terribly great relevance. I am unable to say that he has good prospects for rehabilitation or that he is unlikely to offend in the future. Hopefully the sentence I will necessarily impose upon the offender will play its part in persuading him that the way he has been acting in the past, that is using drugs and, on this occasion, supplying them, is a lifestyle that needs to change. 14 There was some evidence concerning the position of the offender's wife, Anna and his two children. They will certainly suffer through the incarceration of the offender but such hardship is not exceptional unfortunately. It is commonplace for breadwinners to be sent to gaol. The offender's conduct was serious. There was a large number of separate pills in his possession for the purposes of supply. The second charge relates to a substantial quantity, given the commercial quantity applicable to that particular drug. In those circumstances a full time custodial sentence is required. I am prepared to find special circumstances. As Mr Newton points out, it is in the interests of everyone that the offender is rehabilitated. His wife and children will benefit if that occurs and if the offender is able to give up his use of drugs the community will benefit as well. This is the first time the offender has spent in custody and so there are those special circumstances justifying an increase in the period of eligibility for parole at the expense of the non-parole period. As I mentioned, the sentences will be imposed concurrently. 15 The offender is sentenced to imprisonment on each count. The sentences are to date from 11 September 2008. I set a which is a non-parole period of eighteen months which will expire on 10 March 2010 on which day the offender is to be released to parole. I set a balance of term of eighteen months, making a total overall sentence of three years. I decline to order forfeiture of $145 in cash to the Crown. Any other order required? 16 STAINER: Your Honour just withdrawing the sequences 2 and 3 and seeking a drug destruction order. 17 HIS HONOUR: I order that the drugs are destroyed and note that the other offences, I presume they are back up possession offences are they? 18 STAINER: Yes exactly. 19 HIS HONOUR: I order they be withdrawn. Anything else? No. Thank you for your help Mr Newton, thank you for those written submissions, they were very helpful. ********** 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.