Courts Must Not Consider General Deterrence When Sentencing Mentally Ill Defendants

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By Paul Gregoire and Ugur Nedim

NSW police executed a search warrant on 15 April 2020, at a house in Yagoona, where Quoc Toan Chu lived with his parents.

When officers arrived at the premises, Chu indicated which room was his. And when asked if that was where the drugs were hidden, he replied, “Just search it.”

Scattered throughout Chu’s bedroom in distinct places was a variety of different illicit substances, including over 3.3 kilograms of cocaine, 7.4 kilograms of methamphetamine, 2 kilograms of GBL and 1.9 kilograms of MDMA.

There was also an assortment of prescription drugs, consisting of Valium, Xanax and Buprenorphine, as well as liquid crystal meth, drugs precursors, containers used to store a mixture of illegal drugs and $10,350 in cash.

Chu’s DNA was found on a variety of the items used to store the illegal drugs, and there were also mixed DNA profiles on some of the containers.

According to Chu, he was storing the substances on behalf of various dealers who were supplying him with drugs. And while he was aware they were sizable quantities, he had no specific idea how much he had stored in his room.

“It was handed to me in a bag, and I said okay,” he explained.

The authorities accepted Chu’s explanation, as there was no evidence to the contrary.

So, it was understood that the then 33-year-old was storing the substances in exchange for drugs that he would use himself or for money that he would then use to spend on drugs. And dealers used Chu in this capacity as they trusted him.

A long list of convictions

Chu pleaded guilty to a plethora of serious drug offences. This included two counts of large commercial supply of a prohibited drug, contrary to section 25 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act).

This offence carries a maximum penalty of life imprisonment and/or a fine of $550,000.

The offender was further convicted of one count of commercial supply of a prohibited substance, which carries 20 years inside and/or a fine of $385,000, and one count of supply of an illegal drug: an offence carrying 15 years prison time and/or a $220,000 fine.

Both the offence of commercial supply and that of supply also fall under section 25 of the DMT Act.

The reason these crimes constitute supply, when it was understood that Chu was only storing them, is that section 29 of the DMT Act contains the deemed supply rule, which means that if a traffickable amount of a drug is found, an offender is charged with supply regardless of their actions.

Six further offences were also taken into account on three separate Form 1 documents. These included one count of dealing with the proceeds of crime, two of drug possession and three counts of possessing a restricted substance.

Form 1 offences are charges laid against an accused, of which they haven’t been convicted. But, on their request, these are taken into consideration on sentencing alongside a primary offence, in accordance with section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

A further eight summary offences relating to small quantities of drug possession were placed on a certificate, under the provisions of section 166 of the Criminal Procedure Act 1986 (NSW), to be taken into consideration on sentencing as well.

Summary offences are minor offences usually dealt with in the NSW Local Court.

On sentencing

During Chu’s 21 May 2021 sentencing hearing, the NSW District Court heard that the offender had no prior convictions and a strong employment history. Yet, his older sister told the court that he’d suffered depression after his younger sister died in a car accident in 2005.

This was further compounded when, in 2015, Chu’s wife of a year decided to terminate a pregnancy that he wished to keep, and from that point on, he fell into a deep depression. This saw the couple split a year later, it caused Chu to lose his job and it led him to commence using drugs.

In taking these factors into consideration, NSW District Court Judge Mark Buscombe sentenced Chu to 9 years imprisonment, with non-parole set at 6 years. This sentence reflected a 25 percent discount applied due to the utilitarian value of the offender’s early guilty plea.

His Honour said the Form 1 offences had “limited impact” on the aggregate sentence and while a conviction was recorded against all eight summary offences, these resulted in no prison time being applied.

Inappropriate deterrence

Chu appealed his sentence to the NSW Court of Criminal Appeal on 12 September last year. He did so based on several grounds, including that the judge erred in not considering his depressive illness in regard to moral culpability or general deterrence, as well as it being manifestly excessive.

In determining the appeal, Justice Peter Hamill considered the first two grounds, which both involved the “uncontested evidence” relating to Chu’s mental health condition, namely depression. And his Honour found that the sentencing judge had accepted his mental illness had led to his drug use and offending.

And while the authorities set out that there’s no obligation to consider moral culpability, the NSWCCA justice found that Judge Buscombe had assessed Chu’s role in objective seriousness, which is similar in this regard, and therefore, an error had not occurred. So, this ground was not made out.

Justice Hamill then turned to general deterrence, which involves imposing a sentence that would help in discouraging other members of the community from partaking in similar crime. While personal deterrence is also a sentencing matter aimed at preventing an offender from reoffending.

In terms of an offender with “a psychiatric disorder or intellectual disability”, the appeals justice explained that both forms of deterrence are “given less weight” as such individuals aren’t considered appropriate vehicles “to send messages of deterrence”.

His Honour found that Buscombe’s “remarks relating to general deterrence did not appear to give effect to well established principles relating to the impact of an offender’s mental health on the balance to be struck in the application of the purposes of punishment”.

So, this ground was made out, and it followed that Chu’s sentence was also found to be manifestly excessive.

Special circumstances

As the appeal was made out, Justice Hamill ordered that the original sentence be quashed on 15 February this year, and he resentenced Chu to 7 years and 6 months prison time, with a non-parole period of 5 years.

“Like the sentencing judge, I would find special circumstances to ensure the applicant has an extended period on parole,” his Honour said. “This will facilitate his rehabilitation and assist him to deal with his mental health issues and not relapse into the abuse of illegal drugs.”

Under the provisions of section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances, in this case, due to the offender’s mental health issues, permits a parole period to be set for longer than the statutorily required 25 percent of the head sentence.

And NSWCCA Justices Anthony Meagher and Ian Harrison agreed with their colleague’s orders.

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