R v MA [1999] NSWCCA 257

New South Wales Court of Criminal Appeal CITATION : R v MA [1999] NSWCCA 257 FILE NUMBER(S) : CCA 60384/98 HEARING DATE(S) : 26 May 1999 JUDGMENT DATE : 26 May 1999

PARTIES : REGINA v Chan Thanh MA JUDGMENT OF : Barr J at 26; McInerney AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3116 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ

COUNSEL : Crown - L M B Lamprati Applicant - M C Ramage QC SOLICITORS : Crown - C K Smith Applicant - Raymond Lee & Co CATCHWORDS : Sentencing - supply prohibited drug, namely heroin - whether sentence excessive DECISION : See paragraph 27.

IN THE COURT OF CRIMINAL APPEAL 60384/98

BARR J McINERNEY AJ

Wednesday, 26 May 1999 REGINA v Chan Thanh MA JUDGMENT

1 BARR J: I will ask McInerney AJ to give the first judgment. 2 McINERNEY AJ: In this matter the applicant, Chan Thanh Ma, seeks leave to appeal against the severity of the sentence imposed on him by Acting Judge Cantrill in the District Court on 8 August 1997 for an offence of supply prohibited drugs pursuant to s 25 of the Drug Misuse and Trafficking Act. His Honour imposed a total sentence of four and a half years, including a minimum term of three and a half years to commence on 15 March 1997 and to expire on 14 September 2000, with an additional term of one year to commence on 15 September 2000. The maximum sentence for such an offence is a fine of 2,000 penalty units or imprisonment for fifteen years. 3 The facts are, in short form, that on Friday 14 March 1997 police followed the applicant into the Cabra-Vale Diggers Club carpark in Cabramatta. The applicant left his car and walked towards the club entrance. Police requested he stop and a search was made of his pockets. In his left trouser pocket was a small foil with a hard substance inside and when questioned he told the police it was for personal use and agreed it was heroin. He was asked if he had a car at the premises and he said no, but they then removed his car keys from his pocket and then walked towards his car and activated the remote to unlock the door. 4 A search was then made of the car and in a cavity beneath the radio was a set of electronic scales. The applicant admitted owning them to weigh deals he bought off the street. He admitted to smoking heroin. Police removed the ashtray and found a plastic package secured with brown tape. When asked about this the applicant stated it was one ounce of heroin and he had bought it off the street for $4,500. He stated it was for personal use. The heroin found in his pocket weighed approximately .03 grams and that in the car 29.8 grams. 5 The police interviewed him and he made an admission in respect to the possession of this material. 6 There was when one reads the submissions a dispute between the Crown and the applicant's legal advisers on the basis that the learned sentencing judge accepted that the heroin was for the applicant's own use. As I understand it, Mr Ramage does not press that submission, except insofar as saying that the amount of heroin led to the fact that in the quantity it is deemed supply and that the basis of that was that the applicant had admitted supplying heroin on occasions to some friends. Quite clearly he pleaded guilty to the supply of heroin and, in my view, on an examination of his Honour's reasons his Honour dealt with it on that basis. 7 The applicant was born in Ho Chi Minh City on 14 January 1962. He apparently left Vietnam at the age of nineteen, spent some years in a refugee camp, and arrived in Australia in 1985 as a boat person when he was about twenty-three years of age. It appears that he is the only one of his family who has come to this country and on the whole it would appear that he has led a somewhat isolated existence in the country, with some desultory employment. 8 Unfortunately for the applicant, he had one serious offence relating to heroin when, on 25 September 1991, Judge Gallen sentenced him to a minimum term of six years plus two years on a charge of supplying heroin. On appeal the sentence was reduced to a minimum term of five years ten days with an additional term of one year seven months and twenty-one days. It was said this charge involved heroin to the value of $110,000. This was, of course, a very serious offence. 9 The offence here was committed on 14 March 1997, which was less than one month before the expiry of the additional term of the previous sentence. 10 A number of submissions have been made by Mr Ramage, QC, in respect to the sentence imposed by his Honour. It was submitted, firstly, that the sentence was unduly harsh. It was submitted that more substantial prison sentences for offences involving large quantities of heroin - a commercial quantity of 250 grams - was the norm for that type of offence. It is submitted that this was at the lower end of the range as to the amount of heroin involved, and that is not disputed by the learned Crown. 11 Statistics were put before us by Mr Ramage which showed that only 14 per cent of offenders received a higher overall sentence and only 9 per cent a longer minimum period. 12 Mr Lamprati, for the Crown, informed us that some statistics that he had showed that only 3 per cent of persons charged with this offence received a sentence in excess of that imposed by his Honour. Mr Lamprati conceded that the sentence imposed by the learned sentencing judge was at the higher range. He submits, however, that because of the requirement of general deterrence and specific deterrence, whilst this sentence was at the higher range it was not such that it was not within the sentencing discretion of his Honour. 13 Mr Ramage in addition submitted that the applicant had not received credit for his plea of guilty. Quite obviously there was no reference in what is a very brief judgment by his Honour to the applicant's plea of guilty. That is a matter, of course, that one would expect would be clearly before his Honour - that the man did plead guilty - and no doubt his Honour was aware of that. The Crown submits in these circumstances it would be very odd indeed if his Honour had proceeded to sentence the applicant on a basis other than that there was a plea of guilty and an expression of contrition by the applicant. 14 One must always be concerned that these matters, so obvious to us here, do not appear to have received any attention by the trial judge. Of course, one does not know exactly what was in his Honour's mind. It was a matter that, in my view, required consideration by the sentencing judge to know that at the first available opportunity he pleaded guilty and cooperated with the authorities, and therefore it was a matter where there was contrition in the plea. 15 This Court has emphasised on many many occasions that when accused persons are charged with offences and they plead guilty, significant reference should be made to that in any sentencing process. In addition to the question of contrition, there is the saving for the Crown of the expense of a criminal trial. 16 On the question of remorse and contrition, whilst his Honour was doubtful about the applicant's contrition - and that must always be so - it is quite clear he had regard to the fact that the applicant had been attending whilst awaiting his sentence a Health Promotion Information Workshop and his Honour was informed by Mr MacGregor, QC, who appeared on behalf of the applicant, what that workshop related to. 17 It was quite clear his Honour was aware that the applicant had had a habit of heroin and had expressed a desire to overcome that habit. Furthermore, he indicated in the psychometric report that he had intended to leave the area so that he would not be subject to peer pressure. His Honour concluded: "At least it indicates some preparedness to be educated in matters relating to this sort of problem." 18 His Honour went on to say the problem was "one he will have to solve himself." At p 2 of his remarks on sentence his Honour said: "Some people do come to conclusions at the very last minute that they have done the wrong thing and they genuinely wish to change. I hope for his sake he is genuine in the wish because it is something that only he can do and become a good citizen of this country." 19 At AB 58 Mr Taylor, the psychologist who interviewed the applicant, concluded that the applicant, on what he had been told, had a good deal of contrition and remorse. He attended drug counselling in gaol. Mr Taylor thought it was of assistance, but the applicant said he needed no further treatment such as methadone and had expressed a strong desire not to abuse drugs in the future. Whilst his Honour was somewhat doubtful as to these expressions, it seems to me that they were matters that his Honour should have reflected on in some way in the sentence which he imposed. 20 Furthermore, there was no reference by his Honour to the question of special circumstances. The authorities, as I understand them, are to the effect in this particular instance that if there is no reference to special circumstances then this Court is to assume that they were not matters considered by the sentencing judge. It is strange that his Honour, having this material before him, has not expressed the question of whether or not he should exercise his discretion in this regard. 21 Whilst one does not want to be unduly critical of District Court judges - we appreciate that they do not have the time to consider matters to the extent this Court has - nevertheless they are important matters that have to be referred to, in my view. 22 I have come to the conclusion, bearing in mind all of these factors, that this sentence imposed by his Honour is beyond the range of his Honour's sentencing discretion. When one bears in mind the amount of the drug involved and the fact that only 3 per cent of one set of statistics have received a sentence in excess of this amount, it seems to me that realistically this sentence was excessive. 23 I have come to the conclusion that, having regard to all the matters I have adverted to, this is a case where this Court should interfere. Furthermore, I think it is important that this young person be encouraged to rehabilitate himself. As Mr Ramage has pointed out, and as I think we all understand, it is not easy to overcome an addiction to this pernicious drug. Therefore, every encouragement should be given to persons to rehabilitate themselves and it is necessary, of course, that they have expert help. 24 I would propose the following orders. That the sentence imposed by his Honour should be quashed and in substitution therefor there should be a minimum term commencing on 15 March 1997 and concluding on 14 September 1999 with an additional term commencing on 15 September 1999, at which time he may be admitted to parole, and concluding on 16 March 2001. 25 The special circumstances are to enable the applicant to have adequate counselling over a reasonable period of time to assist him in overcoming his drug addiction. 26 BARR J: I agree. The orders of the Court are therefore as follows: 27 Grant an extension of time within which to bring this application for leave to appeal. Grant leave to appeal and allow the appeal. Quash the sentence imposed by his Honour and impose in lieu a sentence of imprisonment for four years comprising a minimum term of two years six months commencing on 15 March 1997 and expiring on 14 September 1999 and an additional term of one year six months. 28 The appellant will be eligible for release on parole on 14 September 1999. **********