R v Wong [2019] NSWDC 233

District Court New South Wales

Medium Neutral Citation: R v Wong [2019] NSWDC 233 Hearing dates: 16 May 2019 Date of orders: 16 May 2019 Decision date: 16 May 2019 Jurisdiction: Criminal Before: Hunt DCJ Decision: In both matters the offender is convicted and sentenced to concurrent sentences with an overall term of imprisonment consisting of a head sentence of 7½ years with a non-parole period of 5 years Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drugs – More than large commercial quantity – Methylamphetamine – Indicia of drug supply – Role of the offender – Offending for financial reward. Legislation Cited: Criminal Procedure Act. Drug Misuse and Trafficking Act Cases Cited: Thomas v R [2019] NSWCCA 88 Category: Sentence Parties: The Crown Kim Ming Wong Representation: Counsel: A Djemal – The Offender

Solicitors: Director of Public Prosecutions File Number(s): 2016/78886

Judgment 1. HIS HONOUR: Kin Ming Wong is before the Court for sentence in relation to two index offences. Both are supplies of prohibited drug being more than the large commercial quantity of methylamphetamine, each in breach of s 25(2) of the Drug Misuse and Trafficking Act. For each matter is provided a maximum penalty of life imprisonment and a standard non-parole period of 15 years has application. In relation to count 1 the quantity averred is 997 grams and in count 2 the quantity averred is 18.9435 kilograms. There are no matters before the Court either on a Form 1 or pursuant to s 166 of the Criminal Procedure Act. 2. These reasons should be understood as delivered ex tempore on the day I considered evidence and sbmissions. 3. Although Mr Wong was committed for sentence from Central Local Court on 6 June 2017 there was a defect in the Court Attendance Notice documentation and accordingly he was re-arraigned before me today on an indictment containing the two counts to cure that formal defect and entered pleas of guilty. It is common ground between the parties however, that Mr Wong entered his pleas of guilty an early stage and is entitled to a full utilitarian discount of 25%. 4. I will have regard to the maximum penalty and the standard non-parole period as benchmarks or guideposts in the way contemplated by the authorities. In due course it will become obvious that I have determined not to impose the standard non-parole period in part because these matters have been the subject of a plea of guilty. Additionally because of findings that I make about the objective seriousness of the offending and other features of the offender's subjective case that make it inappropriate and less of a guide in this case than it may be in some other circumstances. 5. It is also common ground that the offender has been in custody since 12 March 2016. I will return to the chronology and relevant dates in due course. 6. The facts are agreed and set out in full in the Crown sentence bundle. I do not propose to read all of the facts onto the record but the following short précis is helpful. 7. Mr Wong is a Hong Kong national who arrived in this country in late November 2015 on a working holiday visa. On 9 March 2016 the offender walked into the front entrance of an apartment complex in Hurstville using a security access key. He walked back out of that apartment complex very shortly later holding a mobile phone. He then very shortly thereafter entered the apartment complex and left some minutes later. A co-offender by the name of Truong parked his car in a location in an adjoining suburb of Allawah. The offender approached that car and entered carrying a shoulder bag. Mr Truong drove the car for a short distance whereupon the offender got back out and departed the scene. The car driven by Mr Truong ultimately was searched and 998 grams of a substance was later analysed as being methylamphetamine was located. The purity of the drug was ultimately determined to be 79.5% which is a relatively high purity. The offender's fingerprints were located on the white plastic bag that was containing within a further bag the methylamphetamine. 8. On 11 March 2016 the police covertly searched unit 105 of 103 Forest Road Hurstville which was the set of units that the offender had gone in and out of on 9 March 2016. Within a wardrobe of the one bedroom in that unit police located a suitcase. That suitcase contained 19 heat sealed bags that had a white substance in it. Each of the bags were tested and found to contain something in the order each of 1 kilogram of methylamphetamine. The total weight of the drug, as I have indicated, was 18.9435 kilograms and the purity of that drug was 78.9%. Police found some other items that can be seen as indicia of drug supply including disposable gloves, electronic scales and an electronic heat sealer. 9. Among fingerprints located at the unit the offender's fingerprints were located on some furniture, some doorframes, a light switch and on the wardrobe door wherein the suitcase was found, a number of plastic shopping bags and the heat sealing machine. 10. On 12 March 2016 the offender bought a plane ticket to travel from Sydney to Hong Kong for $730. Later that day he was arrested at Sydney International Airport. Police found three phones upon him, together with $281 Australian dollars and Hong Kong currency valued at about $92 Australian dollars. 11. When the offender was interviewed with the assistance of an interpreter in the Cantonese language, he told police that he lived in Hong Kong with his family. He had been in Australia for the purpose of a working holiday. He had three phones that he used in Australia with one of them only used for listening to music. That he had spent 20 days in January in 2016 working as a labourer earning $170 cash per day. That within in his bank accounts in Australia there was $20 and in Hong Kong $10 that his flights to Australia had cost $5,000 Hong Kong dollars. That while he had been in Australia he had paid $130 a week rent for his first residence and $170 a week rent for the second residence. He made a denial about being in the car driven by Mr Truong. He was leaving Australia because there was some problems for his family in regard to his personal finances. That he did not have gambling problems and that he was not involved in criminal groups. No persons had been threatening him apart from the bank in Hong Kong trying to recover a loan. 12. The facts extract some conversations with police about communications by those seeking to collect debts from him in Hong Kong. 13. There is some additional agreed facts that form exhibit B in the proceedings that include that the last time the offender was seen around the relevant unit was the morning of 9 March 2016. That at the time the police found the suitcase which contained the very large commercial quantity of methylamphetamine that the suitcase was padlocked when located and the police had to force it open to search it. 14. When the offender was arrested at the airport he had neither the keys to the padlock to that suitcase nor the swipe card to access the unit premises. The offender told the police that he rented a room within those premises for $170 a week and further told the police that there are other people who resided at that address and rented other rooms. Fingerprints of other unidentified people were located by police within unit 105. No fingerprints or DNA was detected on the 19 resealable drug packages that were within the suitcase and no fingerprints or DNA suitable for testing were located on the resealable drug package that was handed to Mr Truong. 15. In terms of assessing the objective seriousness of the offending I observe that in relation to count 1 the weight of the drug is almost twice the large commercial quantity. In relation to count 2 the weight of the drug is nearly 38 times the large commercial quantity. 16. It is trite to observe two things in relation to weight. One, the authorities have repeatedly said although the weight of a drug is an important issue in drug supply matters, it is not determinative. Further, in cases where there is less other material to form a view about the role of an offender, the weight may have more emphasis in the proceedings simply because there is less other material to consider. That is the circumstance here. 17. In relation to count 1 the role of the offender seems to have been to, on the street, courier a package containing almost twice the large commercial quantity to another person who presumably had responsibility to either transport it elsewhere or distribute it in some other fashion, in a fashion that might be described downstream toward street use. I have some regard to the expert evidence about the value of 1 kilogram of methylamphetamine on the basis of the expert certificate before me. 18. The evidence discloses a relatively short temporal connection between Mr Wong and the drugs that he transferred. Mr Freelander for the Crown fairly concedes that there is no apparent aggravating circumstances in relation to either offence. In terms of the mitigating circumstances for purposes of s 21A(2) is a plea of guilty and the offender has no record of prior convictions and, as I will find in due course, he has good prospects for rehabilitation. 19. I have had regard to the way that Judge Blackmore who sentenced Mr Truong who considered that the objective seriousness of the matter was well below the mid-range. I have also been somewhat guided by the characterisation of the offending upon re-sentence in Thomas v R [2019] NSWCCA 88 in which the Court was obliged to re-sentence in a similar circumstance where there was very little material to properly work out what an offender's true role was. 20. In relation to count 1 the offending is below mid-range but does not reach the low range. Even less can be determined about the offender's role in relation to count 2. It is accepted that the amount of drugs is very large. The additional facts disclose that at the time that Mr Wong was about to leave the jurisdiction, he did not have a mechanism to access either the building within which the drugs were held nor the suitcase within which the drugs were contained. 21. The evidence discloses that he was a possessor of that amount of drugs on 9 March 2016. There is no other evidence apart from drawing inferences of the possibility of a similar type of transaction or transactions to that conducted with Mr Truong. To do more than observe that that is a possibility would be to engage in speculation. The objective seriousness of that offence is below mid-range and somewhere about the mid-point between mid-range and low range within the mid‑range. 22. I accept Mr Freelander's submission that the sheer amount of the drugs means that Mr Wong's role for both of the offence which I have taken into account, must have involved some level of trust. Against that there is no evidence to suggest for instance that Mr Wong was the owner of the drugs or was an architect of the scheme generally. His position both for count 1, in being out on the street with the drugs in question and handing them to Mr Truong, and his exposure to the apartment and possession of the drugs within the suitcase within the wardrobe, means that he was also exposed to detection in a way that is inconsistent with somebody who is more senior in the hierarchy. It is for all those reasons that I am able to make the assessments of objective seriousness as I have. 23. Moving on to some matters that are personal to the offender. He has no criminal record. He is entitled accordingly to a level of leniency that somebody with a record of previous convictions would be denied. His lack of record is the limited material about his good conduct in prison and his statements of remorse which I accept, together with his level of family support when he is ultimately reunited with his family of origin persuade me that I can properly form the view that he is a person who has good prospects of rehabilitation. 24. In terms of the history given to Sam Borenstein psychologist, but for one issue, in terms of the history both in terms of him, Mr Wong, being in debt and there being some relatively aggressive debt collecting in Hong Kong and his general family circumstances, I consider first are reasonably open and second are supported to some degree by material from the offender himself and from his family that has been interpreted and forms part of the defence tender bundle. I do not give weight to the unsworn statements that he felt pressured by other to act in the way he did. 25. In circumstances where there is no evidence about financial reward the courts are invited by the authority of intermediate courts of appeal to draw a common sense inference in the absence of any other evidence that involvement in drug matters will be for financial reward. Here the offender explicitly concedes that he got involved in this matter for financial reward. I am not in a position to find beyond reasonable doubt what the level of financial reward was, but in circumstances where the offender did not give sworn evidence and be tested in relation to his assertion to Mr Borenstein that he did it for $5,000, I am not able to be satisfied that that was the full extent of his potential reward on the balance of probabilities. That said, I do take into account that he seemed to have been in fairly humble financial circumstances at the time that he was to leave the country, having less than $350 in hand, a very small amount in his banking accounts and having paid a fairly modest amount on the day before for his flight home. 26. I am prepared to accept that a level of financial pressure brought him to Australia to try and improve his circumstances and perhaps provided some motivation for him to fail himself and the community in this way. I take into account and accept his expressions of remorse which are informed by his early plea of guilty. 27. The chronology in this matter has some relevance. That is because he was arrested and went into custody on 12 March 2016, and as I have said, was committed for sentence from the Local Court in June 2017. On 13 December 2017 there was a vacation of a sentence date because there was difficulty in some material coming from Hong Kong which may be technically at the foot of the offender but only just. Thereafter the matter was not reached on two occasions on 14 June 2018 and 21 June 2018 in front of Judge Jeffreys of this Court. Then on 13 December 2018 counsel then retained in the matter had been appointed as a judge of this Court a week before the sentence and the matter had to be yet again vacated. That delay I accept increased the stress on Mr Wong wondering his fate and being repeatedly ready for court and then not able to have his matter ventilated. 28. An additional feature of the matter is that he has accordingly been on remand for a very lengthy period. I consider I am entitled to take judicial notice of the fact that remand prisoners in the metropolitan area are generally held in conditions that are consistent with maximum security. I also note his account to Mr Borenstein that at his first gaol of residence he was able to work gainfully in the laundry but after moving to Long Bay there was no work available to him. 29. I take into account some testimonials which are in flattering terms in terms of the way the offender is generally regarded by people who know him well in his home country. I ought to say briefly that the delay that I just adverted to will have some slight ameliorating impact in terms of the sentences to be announced. 30. In terms of parity, Mr Truong was before the Court for similar offence to count 1 only. His offence had with it a matter on a Form 1 of a different nature to be taken into account and he had matters for dishonesty and of violence on his record that had occasioned I think bonds and community service orders but he had not been the subject of imprisonment. Judge Blackmore's finding about the objective seriousness of his offending was slightly more generous than the assessment that I have made of the objective seriousness of Mr Wong's offence at count 1. This offender was younger and in my view although he was only 24 years old at the time of the commission of the offences, issues of rehabilitation have slightly more weight in the sentencing exercise than they did for Mr Truong. Ultimately because of the differences that cut in different directions I have determined to deal with Mr Wong who is entitled to a 25% discount in an identical fashion to Mr Truong in relation to count 1. 31. Mr Freelander, very fairly and properly in my view, conceded in his helpful written submissions that it is difficult to "untangle" the criminality disclosed in count 1 from the criminality disclosed in count 2 and he posited again fairly and in my view correctly, that concurrency was appropriate between sentences to be imposed in relation to the matter. 32. Rather than proceeding by way of an aggregate sentence, given that each of the indicative sentences would need to be separately announced because they each have to be articulated with a non-parole period because they each have standard non-parole periods, and I have determined to accept the submission about full concurrency, I propose just to announce two discrete sentences. 33. I have determined to find special circumstances on the basis of the offender's relative youth, the fact that this is his first time of imprisonment and the fact that if he is admitted to parole in this country he will need an extended period of supervision to make a lawful transition back to community life, having been imprisonment for some significant period of time. 34. Stand up please Mr Wong. In relation to both matters you are convicted. In relation to count 1 you are sentenced to a period of imprisonment of six years to date from 12 March 2016 and to expire on 11 March 2022. There is to be a non-parole period on that matter of four years, which means that the earliest date of release to parole for that matter is 11 March 2020 but that date is really irrelevant because of the sentence that I am about to announce for the second and more serious count. 35. On count 2 there is a sentence of seven and a half years to date from 12 March 2016 and to expire on 11 September 2023 and a non-parole period of five years which means that the earliest date of release to parole is 11 March 2021. I make an order for the destruction of the drugs if that has not already been made, it was not made in Mr Truong's case.