Wonj v R

1. [1]

   WARD P: I agree with R A Hulme AJ.

2. [2]

   ADAMSON JA: I agree with R A Hulme AJ.

3. [3]

   R A HULME AJ: Ryee Saea Wonj applied for leave to appeal against an aggregate sentence imposed by his Honour Judge Buscombe in the District Court at Sydney on 4 October 2024.

4. [4]

   For two offences contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying a large commercial quantity of a prohibited drug (6,896.8g of methylamphetamine and 1,320.6g of heroin), and taking into account at the applicant’s request a further four offences on a Form 1, the applicant was sentenced to imprisonment for 8 years with a non-parole period of 6 years.

5. [5]

   The indicative sentences for each offence were reduced by 25% for the applicant’s early pleas of guilty. The details were as follows.

6. [6]

   The methylamphetamine was more than 13 times the large commercial quantity threshold for that drug (500g) and the heroin was 320.6g over its threshold (1kg).

7. [7]

   The applicant sought leave to appeal on the following ground:

8. [8]

   I propose that leave to appeal be granted but the appeal be dismissed for the reasons which follow.

The offences

1. [9]

   The offences were described in a statement of agreed facts which the applicant signed.

2. [10]

   In May 2022, a company of which he was the sole shareholder and director purchased a storage unit for $282,611.76. He used it to store various personal belongings and valuable items, including motor vehicles.

3. [11]

   Police commenced surveillance on the applicant in September 2022. CCTV footage and swipe card logs revealed he attended the storage unit on nine occasions from 11 to 26 October 2022. He was always alone except on 18 October 2022 when an unknown woman accompanied him. She did not put anything into or take anything out of the unit. On 14 October 2022, the applicant placed in the unit a cardboard box containing drugs subsequently seized by the police.

4. [12]

   Search warrants were executed on 28 October 2022 at the unit and the applicant’s home. Police seized the abovementioned cardboard box at the unit. It contained packages comprising:

5. [13]

   Secreted behind wooden panelling within the frame of a mezzanine shelving structure were jewellery, designer bags, and luxury watches. Their total value was about $330,000.

6. [14]

   At the applicant’s home police seized further methylamphetamine in several containers. It was in the form of either a powder or a crystallised substance in varying stages of drying, the total being 3,233.91 grams. The total quantity of methylamphetamine found at both the applicant’s home and in the storage unit was 6,986.8g. Also seized was $22,015 in cash.

7. [15]

   The applicant’s phone contained stored data which included:

8. [16]

   The images had been created on 39 dates between 29 July 2021 and 17 October 2022. There were also images of large quantities of cash in the form of $50 and $100 notes created on 6 January 2022 and 17 August 2022.

9. [17]

   A transcript of an interview with police on 22 November 2022 was annexed to the statement of agreed facts and included the applicant asserting the following:

   1. (1)

      He sometimes worked, helping out in a friend’s bubble tea shop for which he was paid $500-700 per week. He had no other source of income.

   2. (2)

      He had been sharing a rented apartment, but the co-occupant had recently moved out. Since then, the applicant had been paying the entire rent of $700 per week.

   3. (3)

      He did not pay for the storage unit which he acquired less than a year ago.

   4. (4)

      He was shown a still image of the cardboard box which contained the drugs found in the storage unit. He did not remember it and did not know what was in it. Upon being told of the large quantities of drugs found in the box he said he did not know what they were; he had never seen it or touched it before.

   5. (5)

      There were three keys to the storage unit, but he declined to say who else had keys. He also declined to say anything about the jewellery, bags and watches police had found.

The applicant’s background

1. [18]

   The applicant did not give evidence at the sentencing hearing but relied upon a report by Dr Richard Furst, forensic psychiatrist. Much of the following derives from the history Dr Furst recorded.

2. [19]

   The applicant was born in Vietnam in April 1961 and was aged 61 at the time of the offending. When he was 14, his parents sent him away in a boat shortly after the fall of Saigon. After travelling to Indonesia and Singapore, he arrived in Australia as a refugee in August 1975.

3. [20]

   The applicant has a criminal history which includes offences of using a false instrument for which in 2008 he was ordered to perform community service work and placed on a good behaviour bond. It was a condition of the bond that the applicant:

4. [21]

   In 2015 the applicant was sentenced to imprisonment for an aggregate term of 10 years with a non-parole period of 6 years for two offences of supplying a prohibited drug and a serious firearms dealing offence. The sentencing judge in the present matter noted the applicant was serving the parole period of that sentence at the time of committing the index offences which he understandably regarded as an aggravating factor.

5. [22]

   The applicant told Dr Furst he was exposed to war-related trauma at a young age. He also said he was a victim of sexual abuse by a teacher at Oxley State High School which led to him leaving school altogether at the age of 16. He said he had disclosed the abuse to his ex-wife and a psychologist at a drug and alcohol rehabilitation centre (Connect Global Ltd) which he attended whilst on bail from August 2023 to April 2024.

6. [23]

   The history included that the applicant returned to Vietnam in 2006 and saw his family. After his return to Australia in 2007, he commenced a relationship with a woman who was abusing drugs, and he began using drugs as well. Dr Furst referred to the conditions of the bond imposed in 2008 which he regarded as confirming the applicant’s lengthy history of addiction issues. The applicant told him he was using “ice” in 2009 and his drug use continued as a regular habit, together with excessive drinking and gambling, until his arrest in March 2013 on the drug supply (and firearms) charges.

7. [24]

   The applicant’s gambling history went back to the 1990s. He ceased gambling for a couple of years after attending Gamblers Anonymous in the mid-1990s but resumed gambling compulsively and excessively in the late 1990s, 2000s and 2010s.

8. [25]

   The applicant said he relapsed in relation to drug use and gambling after his release on parole in 2019. He was using about 3.5g of “ice” per day and “spending up to thousands of dollars in a day on the horses and/or at the Crown Casino”.

9. [26]

   In relation to the offences, the applicant told Dr Furst he was a “warehouser”. He said, “I was looking after these people. They pay me. They put it [the drugs] in there. They collect it.” He claimed that “different people would come to collect the drugs in different cars”. (This account is not supported by the agreed facts.)

10. [27]

    Dr Furst found no indications of any major mental illness but diagnosed the applicant as having a substance use disorder and gambling disorder on the basis of his long-standing history of drug abuse/addiction and pathological gambling. (How these conditions may relate to the offending is at the heart of the proposed ground of appeal.)

11. [28]

    In the event that he found there was a mental illness or condition, Dr Furst was asked to advise whether there was any nexus with the offending behaviour and, if so, whether it “materially contributed to the offences”. He answered:

12. [29]

    Dr Furst was also asked if any mental illness or condition he detected would mean a custodial sentence would weigh more heavily on the applicant, but he answered in the negative. He explained, “Drug addiction is common amongst the average inmate and Mr Wonj does not have a major mental illness such as schizophrenia or bipolar disorder”.

Remarks on sentence

1. [30]

   The judge discussed matters pertinent to the applicant’s role as well as his motivation in explaining his assessment of the objective seriousness of the offences. He was not completely accepting of the history provided by the applicant to Dr Furst. He said:

2. [31]

   In relation to a claim made by the applicant to Dr Furst about his role being a “warehouser” who was paid by other people to store the drugs, the judge referred to the fact that the applicant had not given evidence on sentence and so the history recounted in the doctor’s report had not been tested. His Honour said:

3. [32]

   As to the applicant’s motivation for the offending, his Honour said:

4. [33]

   Almost immediately after discussing these matters, his Honour announced his assessment of the objective seriousness of the offences as “below the middle of the range”. It is reasonable to infer his Honour may have assessed the offending at a higher level if the applicant was engaged in the offences entirely for profit and not partly to fund his addictions. Mr Woods, counsel for the applicant in this Court, implicitly accepted this, in that he embraced the judge’s finding as correct and contrasted it to the submission that had been made by the Crown that the applicant was solely motivated by greed.

5. [34]

   In addition to being sceptical about the applicant’s account to Dr Furst about his role in the offences (above at [31]), his Honour said in relation to the claim of sexual abuse, “it is difficult to put a great deal of weight on the offender’s assertion of sexual abuse when in high school”. He noted there was no mention of this in the remarks on sentence of Hock DCJ who sentenced him in 2015. Further, her Honour had said he attended high school until the age of 17 (not 16). There was also no confirmation in a report from the CEO of Connect Global Ltd of the applicant having disclosed this during his time at that facility.

6. [35]

   A letter from a firm of solicitors in Queensland referred to the applicant having telephoned them on 28 August 2024, three weeks before the sentence hearing, to discuss his legal options in relation to abuse by a teacher at Oxley State High School between 1976 and 1977. The judge said:

7. [36]

   The judge accepted the applicant’s account to Dr Furst of having commenced using illicit drugs in 2008, after having commenced a relationship with a person who was abusing drugs. He also accepted the history of problematic gambling from at least the time the applicant attended Gamblers Anonymous in the mid-1990s.

8. [37]

   His Honour said the following about Dr Furst’s opinions (see above at [28]-[29]):

9. [38]

   The judge said there would be “some limited reduction in his moral culpability for the offending due to his difficult start in life, in particular, in relation to his early life in a war-torn Vietnam, in accordance with the principles discussed in Bugmy v The Queen although I do note that there was some considerable planning involved in the offence”. His Honour stated his conclusion for not placing great weight on the assertion of sexual abuse in high school (see above at [34]). He then said the following which is at the heart of the applicant’s proposed ground of appeal:

Relevant principles

1. [39]

   The applicant’s submissions raised issues as to the relevance of his substance use disorder and gambling disorder to his moral culpability and the emphasis to be given to general deterrence in sentencing. They also raised a question as to the relevance of such disorders in mitigation of sentences more generally.

2. [40]

   In the famous passage in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], McClellan CJ at CL said (with citations of authorities omitted):

3. [41]

   The emphasis placed on the word “may” reflects an important aspect to which Simpson J drew attention in Aslan v R [2014] NSWCCA 114 at [33]-[35]; that is that these well-established principles are not stated in absolute terms. They describe the potential relevance of, not automatic consequences that follow from, an offender’s mental health contributing to the commission of an offence in a material way. Importantly for the present case, her Honour said at [34]:

4. [42]

   The potential mitigating effect of drug and gambling addictions is not an uncommon issue in sentence appeals. The authoritative statements of Spigelman CJ and Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 concerning the relevance of drug addiction generally, and specifically in relation to armed robberies, have stood the test of time. They include the following from the Chief Justice concerning moral culpability:

5. [43]

   Wood CJ at CL set out a number of principles:

6. [44]

   While R v Henry was focussed upon the crime of armed robbery and an addiction in relation to drugs, the principles apply more broadly. For example, in Johnston v R [2017] NSWCCA 53, Bathurst CJ (at [41]) found the above extract from the judgment of Wood CJ at CL and other authorities to which he referred applied equally to cases of fraud to feed a gambling addiction.

7. [45]

   Singh v R [2019] NSWCCA 110; (2019) 278 A Crim R 103 provides an illustration of the application of the principles. In that case the applicant was sentenced for an offence of aggravated break and enter and commit robbery in company. He was diagnosed (coincidentally by Dr Furst) with substance use disorder and severe gambling disorder. It was contended in one of the grounds of appeal that the sentencing judge erred in not taking those disorders into account as mitigating factors. It was submitted that the judge should have considered if moral culpability was reduced and whether the need for general deterrence was reduced because the applicant’s capacity to exercise judgment was impaired. The judge had said the applicant needed to address his gambling addiction and drug usage if he was to resist committing further offences, thus indicating a finding that a nexus existed between the disorders and the offending.

8. [46]

   In response, Payne JA referred at [43] to DPP (Cth) v De La Rosa at [177] as setting out the ways in which an offender’s adverse mental condition may be relevant to the assessment of sentence. Then, after reference to Aslan v R, Johnston v R, and R v Jafari [2017] NSWCCA 152, he said:

9. [47]

   His Honour rejected (at [48]) the submission that the judge found a nexus existed with the offending as it was inconsistent with the finding that the gambling addiction was an explanation but not a mitigating factor.

10. [48]

    Counsel for the applicant in this Court referred to the sentencing judge having twice said that the applicant’s motivation to engage in the offending was at least in part to fund his drug and gambling addictions (see above at [32] and [38]). In the latter passage, his Honour accepted that the addictions “appeared to lie behind the commission of the offences”. Mr Woods contended this amounted to an acceptance that the disorders diagnosed by Dr Furst contributed to the offences in a material way which was the threshold stated by McClellan CJ at CL for the various principles he referred to in DPP (Cth) v De La Rosa. Referring to a “causal connection”, as the sentencing judge did in this case, unnecessarily and unduly elevated the threshold that an offender must meet before the principles may be applied: RG v R [2025] NSWCCA 36 at [74]-[77] (Yehia J); Lane v R [2025] NSWCCA 113 at [108]-[112] (Ierace J).

11. [49]

    Counsel for the applicant conceded in oral submissions that the case was put on the basis that it was the bare fact of the applicant having the diagnoses of substance use and gambling disorders that was relied upon. No case was sought to be made that these disorders had any particular effect upon the applicant such as, for example, that he was rendered less in control of his cognitive facilities or emotional restraints, or lacked the ability to make reasoned or ordered judgments, or had a limited appreciation of the wrongfulness of his offending conduct, or of its moral culpability. (Those are matters derived from the judgment of Wood CJ at CL in R v Henry at [254] which were referred to as the types of reasons general deterrence may be given less weight in the case of an offender with a mental abnormality).

12. [50]

    Counsel for the applicant submitted at the hearing that there was a “disconnect between his Honour’s finding about motive and the mental disorders playing a role in the commission of the offences and rejection of De La Rosa”.

13. [51]

    In written submissions in reply to those of the Crown, counsel for the applicant had sought to take the case beyond what the evidence was capable of supporting. He referred to cases which the Crown relied upon in support of a contention that addiction is “not, of itself, a mitigating circumstance” and that the applicant’s case falls within that general rule. The cases the Crown relied upon included R v Henry and Singh v R. Counsel for the applicant responded:

Consideration

1. [52]

   The submissions in reply are relevant only to the extent that they highlight what the applicant’s case was not. The applicant’s case was confined in his primary written submissions, and accepted in oral submissions, to be that the bare fact of drug and gambling addictions should have been found to have materially contributed to the commission of the offences and thereby gave rise to a need to consider the application of the principles in DPP (Cth) v De La Rosa.

2. [53]

   There is a very good reason for the applicant’s case not being as it was sought to characterise it in the written submissions in reply, namely that there was nothing in the report of Dr Furst, or elsewhere in the evidence before the sentencing judge, that supported it. For example, there was nothing that suggested the applicant was at an increased level of vulnerability, or his judgment, capacity for rational choice and self-control were impaired.

3. [54]

   The bare statement by Dr Furst that there was “a strong correlation between childhood trauma, including being sexually abused and other traumatic events witnessed as a child, and the subsequent onset of drug addiction, drinking and or gambling”, was, as the Crown submitted, an ipse dixit and ignored the applicant’s own account of when and in what circumstances he had first used prohibited drugs. The first mention of gambling as an issue in the applicant’s life was when he was in his 30’s and drug use commenced when he was aged 47. Moreover, not all of the history based on the applicant’s self-report was accepted by the sentencing judge.

4. [55]

   There was no evidence that would have supported a proposition that the applicant’s case fell within the principle referred to by Wood CJ at CL in R v Henry at [273](c)(ii), namely that his addictions were not a matter of personal choice but were attributable to something for which he was not primarily responsible.

5. [56]

   The applicant did obtain a benefit of a finding of a kind described by Wood CJ at CL in [273](b)(ii), that is that the addictions “at least in part” constituted his motivation to engage in the offending and thereby “in part” refuted the Crown’s contention that he was entirely motivated by greed. This was a finding in his favour that fed into the assessment of the objective seriousness of the offences (see above at [33]).

6. [57]

   The Crown submitted and I accept that the applicant misconstrued what the sentencing judge meant by his reference to the applicant’s mental health not being “causally connected to the offences in the relevant sense”. If his Honour meant to say that the principles in DPP (Cth) v De La Rosa had no part to play because there was no causal connection between the applicant’s mental health and the commission of the offences, he could be expected to have said so without adding the words, “in the relevant sense”.

7. [58]

   There is an element of infelicity in what his Honour said. However, it is clear enough from the balance of the sentence that his Honour did not perceive the establishment of a causal connection as the threshold test of when a mental condition may have the consequences described by McClellan CJ at CL. If he did, there was no need for him to make and explain a decision that there would be no lessening of “the need to reflect the principle of general deterrence when imposing sentence”.

8. [59]

   Accordingly, there was no error in the application of principle. I am satisfied that his Honour dealt with the issue in complete accordance with the principles to which I have referred. Apart from having regard to the motivation for the offending in the context of assessing the objective seriousness of the offences, the applicant’s drug and gambling addictions did not have any mitigating value in the sentencing exercise.

9. [60]

   Even if the applicant’s point was made good, there is a further dimension to the issue. Mr Woods submitted at the hearing that if the judge had found the addictions materially contributed to the offending, he would then have asked himself the question whether there should be a consequential reduction in moral culpability.

10. [61]

    On any view, the response would have been resoundingly in the negative for the reason explained by Wood CJ at CL in R v Henry at [253]-[255]. Paragraph 254 was one of the citations provided for the first principle described by McClellan CJ at CL in DPP (Cth) v De La Rosa at [177] concerning a possible reduction of moral culpability.

11. [62]

    When the applicant’s motivation for committing two very serious drug supply offences was partly to raise money to fund his addictions, and thereby implicitly also motivated in part by greed, and with such addictions not having arisen in circumstances that rendered them not a matter of personal choice, there could be no diminution of moral culpability or general deterrence or any other mitigation allowed to the applicant.

12. [63]

    A final observation is that the sentence imposed was modest. The applicant committed two serious examples of drug supply offences carrying maximum penalties of imprisonment for life. He was found to be involved in the business of selling drugs and recklessly dealing with proceeds of crime worth over $350,000. He did so while on parole for earlier serious offending which also included drug supply.

13. [64]

    The proposed ground of appeal should be rejected.

Orders

1. [65]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal dismissed.