See v R

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J and the orders he proposes.

2. [2]

   HARRISON J: Young In See seeks leave to appeal against the sentence imposed upon him by Madgwick A-DCJ on 3 October 2019 at the Sydney District Court. Mr See pleaded guilty on 23 July 2019 and was sentenced to an aggregate term of imprisonment of 8 years commencing on 14 February 2018 with an aggregate non-parole period of 5 years. The details of the offences, together with the maximum penalties and indicated sentences were as follows:

3. [3]

   From the sentence imposed by his Honour, Mr See appeals on the following grounds:

Facts

1. [4]

   At the relevant time, Mr See was living in an apartment in Cabramatta with his mother, his sister, and the co-offender (his sister’s husband). In May 2017, a police investigation targeted a person named Pepsi Mola, who was sourcing large quantities of methylamphetamine, cocaine and pseudoephedrine for supply in Sydney, Newcastle and Brisbane. By early June 2017, police discovered that Mr Mola sourced drugs from the co-offender. On 30 August 2017, Mr Mola was arrested while delivering a large commercial quantity of methylamphetamine obtained from the co-offender to an associate in the Newcastle area.

2. [5]

   Between 7 June 2017 and 4 August 2017, Mr Mola obtained 2,001 grams of methylamphetamine and 283 grams of pseudoephedrine from the co-offender. On occasions Mr Mola would ring Mr See and have conversations with him regarding the availability of drugs and the whereabouts of the co-offender. Mr See facilitated communication between the co-offender and Mr Mola regarding the supply of the drugs.

3. [6]

   On 12 September 2017, police executed a search warrant at the Cabramatta apartment. They searched Mr See’s bedroom and also his car. In the car police located a small black magnetic box, identified as a concealment method often used to store prohibited drugs.

4. [7]

   In Mr See’s bedroom, police located several plastic bags containing white powder or crystalline substances, as well as tablets and capsules. These items were found in the pockets of a jacket in the wardrobe, inside a lockbox chained under the bed, and elsewhere in the room. The total amounts of prohibited drugs located in Mr See’s bedroom were as follows:

5. [8]

   Mr See was in possession of these drugs for the purpose of supply. A drug ledger was also located in his bedroom.

6. [9]

   Police also found a total of $27,850 cash in Mr See’s bedroom, in the following separate quantities:

7. [10]

   Police searched a silver Mercedes-Benz sedan that was parked directly at the front of the premises. The car was registered to Mr See’s sister. Under the front passenger’s seat were two heat-sealed packages inside a white plastic bag. The packages contained:

8. [11]

   Under the driver’s seat was a heat-sealed package in a grey plastic bag containing two clear plastic zip-lock bags, within which were:

9. [12]

   The co-offender’s fingerprints were located on the exterior of the two clear plastic zip-lock bags.

10. [13]

    CCTV footage from neighbouring premises showed Mr See putting a white plastic bag inside the Mercedes on 28 August 2017. On 30 August 2017, it showed the co-offender meeting with Mr Mola outside the house, retrieving a package containing 501 grams of methylamphetamine from the Mercedes and supplying it to Mr Mola. On 1 September 2017, the CCTV footage showed Mr See entering the Mercedes empty handed, leaving it after about 15 seconds with a white package and taking the package inside the house.

11. [14]

    Police also located three prohibited weapons in Mr See’s bedroom that he had no permit or authorisation to possess: a black expandable baton in a leather case on the bedside table (s 166 certificate offence /1), two metal knuckle dusters (s 166 certificate offence /2), and a slingshot in a black container, consisting of three elasticised bands secured to a Y-shaped metal frame with a camouflage handle (s 166 certificate offence /3). Police also located 0.53 grams of cannabis in Mr See’s room (s 166 certificate offence /9).

12. [15]

    On his arrest on 14 February 2018, Mr See participated in an ERISP in which he denied being involved in drug supply.

Criminal history

1. [16]

   His Honour noted that Mr See was “for present purposes virtually a first offender and this is his first occasion in prison”.

Subjective findings

1. [17]

   His Honour found that Mr See was of Lao ethnicity, 35 years of age at the time of sentence and 33 years of age when he committed the offences.

2. [18]

   He also accepted the following contentions from the psychological report:

3. [19]

   Mr See provided material that established that he had participated in a remand addiction program and provided a commitment to rehabilitation.

Special circumstances

1. [20]

   His Honour found special circumstances for reasons that included the fact that the sentence he was intending to impose would be Mr See’s first time in gaol and that the sentence would be “a heavy one”. The non-parole period amounted to approximately 62 percent of the head sentence.

Discount

1. [21]

   Mr See received a 10 percent discount for his plea of guilty.

Consideration

1. [22]

   Section 45 of the Crimes (Sentencing Procedure) Act is relevantly as follows:

2. [23]

   Section 54B of the Act is as follows:

3. [24]

   Mr See conceded that the sentence was not “invalidated” by his Honour’s failure to comply with either s 45(2) or 54B(5) of the Act. He nevertheless complained that his Honour failed to consider the standard non-parole periods for the offences that carried them, and failed to indicate non-parole periods for those offences. However, the sentence imposed was an aggregate sentence, which included an aggregate non-parole period of 5 years. Section 45(1) therefore does not apply and the error asserted in Ground 1(a) has not been established.

4. [25]

   A court that imposes an aggregate sentence of imprisonment is required to indicate the sentence that would have been imposed for each offence, had separate sentences been imposed: s 53A(2)(b). The court is not required to indicate the non-parole periods that would have been imposed unless required by s 54B: s 44(2C). The sentence indicated for an offence therefore represents the total term that would have been imposed.

5. [26]

   In his remarks on sentence at page 12, his Honour listed the indicative sentences for the eight individual offences (four on the indictment and four on the s 166 certificate) for which the aggregate sentence was imposed. Of those eight offences, Counts 6 and 7 on the indictment (not Counts 5 and 6, as stated in Ground 1(a)) each carry a standard non-parole period. His Honour did not indicate the non-parole periods he would have imposed for these offences as required by s 54B(4). However, the failure to comply with s 54B(4) does not have the capacity to influence the sentence and is not an error requiring the intervention of this Court: Ibbotson (a pseudonym) v R [2020] NSWCCA 92.

6. [27]

   Mr See appears to contend that his Honour failed to have regard to the applicable standard non-parole periods. The standard non-parole periods are not mentioned in the section of his Honour’s reasons that relates specifically to Mr See although the 15-year standard non-parole period applicable to Count 7 was referred to at the start of the reasons, when dealing with the co-offender.

7. [28]

   The standard non-parole periods for Counts 6 and 7 were referred to in the Crown Sentence Summary (in Exhibit B) with the Crown’s written submissions on sentence. These were provided to his Honour on the day of the sentence proceedings and his ex tempore judgment. The fact that his Honour indicated different sentences for Counts 6 and 7, which related to drugs found in the same location, indicates that he was conscious of the differing statutory guideposts that applied to each.

8. [29]

   This ground of appeal is not made out.

9. [30]

   His Honour made no reference in terms to the “objective seriousness” of any of the offences with respect to Mr See. He maintained that this Court was therefore required to determine whether his Honour assessed the objective gravity of the subject crime and Mr See’s moral culpability.

10. [31]

    His Honour’s remarks on sentence as to the first two counts noted that there was a quantity of drugs in Mr See’s possession for the purposes of supply that was “not much less” than the commercial quantity and that it was packaged in “small to smallish” quantities. His Honour also referred to the presence of a magnetic box in his car and a substantial amount of money.

11. [32]

    Mr See submitted that these features pointed to him being a retailer of the drugs, with “the objective criminality falling in the lower range of moral culpability”. His Honour was otherwise silent as to what formed the basis of the criminality of these two offences.

12. [33]

    With respect to Counts 5 and 6, his Honour repeatedly described Mr See as an “aide and adjunct”, or an “aide and assistant”, and the facts referred to him relaying telephone messages and performing menial tasks, albeit with knowledge of the quantities relevant to the co-offenders. Mr See contended that there was no evidence that he was involved in the transactions themselves, the sourcing or the financing of the trafficking or that he stood directly to gain financially.

13. [34]

    Mr See submitted in these circumstances that his criminality was objectively in the low range.

14. [35]

    In the first part of his judgment, his Honour sentenced the co-offender and provided reasons for doing so. In that way, his Honour summarised the circumstances that led to the search conducted by police on 12 September 2017 of the house where the co-offender and Mr See both lived and the Mercedes parked outside. His Honour described the roles of the co-offender and Mr Mola and the type and quantity of drugs they supplied, finding that the co-offender was “in business as a substantial wholesaler of very considerable quantities of drugs”. The co-offender’s offences were assessed as “at least well up in the middle range of comparative seriousness”.

15. [36]

    Mr See’s offences all arose out of the search conducted on 12 September 2017. As the agreed facts make clear, a number of relevant items were located in his bedroom, including the drugs that were in his possession for supply (Count 1) and the proceeds of drug supply (Count 5). He further knowingly took part in the supply by the co-offender of the prohibited drugs located in the Mercedes (Counts 6 and 7). Accordingly, the Crown submitted that when his Honour proceeded to deal with Mr See, it was unnecessary to repeat the circumstances of the offending as he had earlier referred to the search of the house and the car.

16. [37]

    His Honour noted the weight and type of each of the drugs located and the amount of money charged as the proceeds of crime. In relation to Count 1, it was noted that the methylamphetamine was packaged in “various small to smallish quantities”, that the total amounted to not much less than the commercial quantity, and that the presence of the money and the hidden box in his car confirmed he had the drugs for the purposes of sale. In the sentencing proceedings, his Honour had described Mr See as a retailer and the Crown had accepted his Honour’s suggestion that Count 1 was about low or mid-range. In relation to Count 5, his Honour noted that the amount of money was “substantial”.

17. [38]

    With respect to Counts 6 and 7, his Honour referred to Mr See’s involvement as a “secondary participant” and “an aide and adjunct” to the co-offender. The Crown submitted that these findings are consistent with the level of involvement suggested by his counsel in the proceedings, namely “an assistant, a fetcher”. His Honour stated:

18. [39]

    Although his Honour did not attach a specific label to the objective seriousness or objective criminality of Mr See’s offending, he did undertake an evaluative assessment of the relevant factors, including the amount of the drugs and money involved, the circumstances and location in which the drugs and money were found, Mr See’s role, the nature of his conduct, and, for Counts 6 and 7, his culpability relative to the co-offender.

19. [40]

    Moreover, his Honour nominated different indicative sentences for the offences, thereby implicitly recognising the different offences and the different quantities of drugs. The Crown submitted this demonstrates that his Honour gave appropriate separate consideration to each count to the extent that was practical in the circumstances of the case: Trimarchi v R [2019] NSWCCA 189 at [51].

20. [41]

    “[A]ssessment of the objective gravity of an offence forms a significant part of the sentencing process with respect to all offences”: Tepania v R [2018] NSWCCA 247 at [107]. The imposition of an aggregate sentence does not extinguish the requirement to assess the criminality involved in the individual offences for sentence: R v Brown [2012] NSWCCA 199 at [17]. However, what is required at a minimum is for the sentencing judge to refer to the essential facts upon which an offender is sentenced and to provide some assessment of, or reflection upon, the seriousness of the offending conduct: Gal v R [2015] NSWCCA 242 at [39].

21. [42]

    In considering an assertion that a sentencing judge has failed to make any finding of objective seriousness, regard must be had to the sentencing reasons as a whole. In the context of drug offences, Hoeben CJ at CL said this in Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]:

22. [43]

    The task for an appellate Court is to consider whether, reading the sentencing judgment fairly as a whole, there has been a failure to make that essential assessment: Yeung v R [2018] NSWCCA 52 at [30].

23. [44]

    I am satisfied in this case that his Honour gave appropriate consideration to all factors that were relevant to his assessment of the objective seriousness of Mr See’s offending. Without suggesting that there could only be one view of that assessment, it is clear that his Honour came to sentence Mr See with an obvious appreciation of the amounts of drugs and money concerned and the role played by Mr See in the distribution and sale of the drugs and in possessing the proceeds. I do not consider that his Honour erred as alleged. The underlying burden of Mr See’s complaint on this ground is more conveniently considered when dealing with Ground 3.

24. [45]

    Mr See complained that even though his Honour accepted that he was from a disadvantaged background with long-standing issues relating to his childhood and subsequent drug use, he failed to reflect these concerns in the ultimate result. This was exacerbated by the fact that his Honour’s remarks clearly accepted the absence of any relevant criminal history. Mr See complained that his Honour appears not to have given any consideration to the fact that his rehabilitation prospects were likely to be favourable.

25. [46]

    In contrast, the Crown re-emphasised the following matters.

26. [47]

    Mr See was sentenced for four offences that related to the supply of prohibited drugs, including an offence of knowingly take part in the supply of a large commercial quantity of 3,4-MDMA (Count 7), which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The objective seriousness of Counts 1, 6 and 7 was elevated by the fact that the quantity of the prohibited drug was considerably above the applicable indictable, commercial or large commercial quantity threshold. The objective seriousness of Count 6 was elevated by the relatively high purity of the 499.8g of methylamphetamine (76.5%). Moreover, the amount of cash that constituted the proceeds of crime for Count 5 was substantial.

27. [48]

    Three further offences of supplying different prohibited drugs were taken into account on a Form 1, requiring greater weight to be given to the need for personal deterrence and retribution. Mr See was also sentenced for a further three offences of possessing various prohibited weapons and one offence of possessing cannabis that were on a s 166 certificate.

28. [49]

    Although Mr See’s role with respect to Counts 6 and 7 was secondary to the co-offender and to Mr Mola, he facilitated communication between them to ensure the smooth running of their illegal transactions.

29. [50]

    His Honour properly took Mr See’s subjective case into account and made a finding that he was entitled to a measure of favourable consideration. A finding of special circumstances resulted in a three year parole period allowing ample opportunity for Mr See to attempt to rehabilitate successfully into the community without further offending.

30. [51]

    It does not seem to me in all of the circumstances that the sentence imposed upon Mr See was unreasonable or plainly unjust. Mr See committed multiple serious offences. He was actively and knowingly concerned in several aspects of a drug supply business. His involvement may be contrasted with someone whose activities were peripheral or inconsequential.

31. [52]

    This ground of appeal should be rejected.

Orders

1. [53]

   In my opinion the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.

2. [54]

   BELLEW J: I agree with Harrison J.