Regina v Chan [1999] NSWCCA 103

New South Wales Court of Criminal Appeal CITATION : Regina v Chan [1999] NSWCCA 103 FILE NUMBER(S) : CCA 60640/98 HEARING DATE(S) : 7 April 1999 JUDGMENT DATE : 29 April 1999

PARTIES : Regina (Appellant) Yat Ping Chan (Respondent) JUDGMENT OF : Sheller JA at 1; Studdert J at 2; Smart AJ at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0420 LOWER COURT JUDICIAL OFFICER : Graham DCJ

COUNSEL : Mr P.G. Ingram (Appellant) C.L. Steirn SC (Respondent) SOLICITORS : S.E. O'Connor (Appellant) Borak & Co. (Respondent) CATCHWORDS : Inadequate sentences for drug offences - supplies to Police undercover operatives - discount for assistance - family hardship - deterrence - parity. CASES CITED: Rahme (1991) 53 A Crim R 8; Mandica (1980) 24 SASR 394; Taouk (1993) 65 A Crim R 387; R v C.T. Edwards (1996) 90 A Crim R 510; R v Day (1998) 100 A Crim R 275; R v Byrne CCA 5 August 1998 (unreported); R v TR CCA 1 November 1996 (unreported) DECISION : Crown appeals allowed; sentences imposed in District Court quashed. Respondent sentenced to concurrent fixed term of 2½ years commencing 16 November 1996, expiring 15 May 1999 on each of the December 1995 offences.; Respondent sentenced to 6 years imprisonment with minimum term of 3 years 4 months commencing 16 May 1999, expiring 15 August 2002 and an additional term of 2 years 9 months commencing 16 August 2002.

19

1

IN THE COURT OF CRIMINAL APPEAL 60640/98 SHELLER JA STUDDERT J SMART AJ

Thursday, 29 April 1999 R. v Yat Ping CHAN JUDGMENT

1 SHELLER JA : I agree with Smart AJ. 2 STUDDERT J : I also agree with Smart AJ. 3 SMART AJ : The Director of Public Prosecutions has appealed against the sentences imposed by Judge Graham on 11 September 1998 on Yat Ping Chan on the ground that they were inadequate. 4 On 13 December 1995 in the car park of the Stardust Hotel, Cabramatta, pursuant to arrangements made earlier that evening Chan supplied an undercover police officer with 55.98 grams of heroin. He was to be paid $13,000. There was a second offence of supplying 27.92 grams of heroin being not less than the trafficable quantity. This offence arose out of finding this heroin in the glove box of the car driven by Chan to the car park. The judge was asked to take into account an offence of possessing 0.06 grams of heroin contained in a small silver foil located on Chan. 5 For each of the two offences charged and taking into account the possession offence Chan was sentenced to a concurrent fixed term of 2 years' imprisonment. 6 On 16 November 1996 at Wiley Park Chan supplied 408.06 grams of heroin being not less than the trafficable quantity. This quantity was found in his inside jacket pocket. It was a case of "deemed supply". Chan and his wife had spent the previous four hours in a processing room in a flat which he had rented. In that room there was a cutting board, cutting agents, a hydraulic press, silver foil and other drug paraphernalia. 7 Although Chan was the directing party both were involved in mixing, cutting, scraping and compressing powder into blocks of heroin. He had placed the blocks inside his jacket prior to leaving the flat with his wife. He was arrested as he left the flat. Smaller amounts of heroin wrapped in silver foil were found on him. He also had $1,680. There were ten heat sealed plastic satchels containing heroin placed under the stove in the flat. These had come from overseas. Upon searching Chan's home at Hurstville $6,671 was found in his bedroom. 8 Chan was also guilty of the offence of between 1 November 1996 and 7 December 1996 knowingly taking part in the supply of 1231.2 grams of heroin being not less than a large commercial quantity. Chan caused a post office box to be opened at each of seven different post offices in the city and suburbs of Sydney. A number of different names were used. Chan held the keys to these boxes and was seen using two of them. From 16 November 1996 to 7 December 1996 some 44 envelopes were received in these boxes. Each of these envelopes, which had come from overseas, was bound and wrapped in an identical manner culminating in a heat sealed plastic satchel containing about 28 grams of heroin. The total weight of heroin within these 44 envelopes amounted to 1231.2 grams. 9 The judge was asked to take into account two goods in custody charges, one relating to $1,680 and the other to $6,671, both sums being reasonably suspected of being unlawfully obtained. 10 On each of the 1996 offences Chan was sentenced to a concurrent minimum term of 18 months imprisonment and a concurrent additional term of 2 years, such sentences to be cumulative upon the fixed term of 2 years for the 1995 offences. 11 The 1996 offences were committed while Chan was on bail. He had learnt little from being arrested and charged with supplying heroin in December 1995 and spending nearly two months in gaol except the undesirability of being caught. 12 Chan pleaded not guilty upon arraignment on 7 March 1997. However, a year later, namely, on 19 March 1998 he entered pleas of guilty. The judge gave Chan a discount for the pleas of guilty based on utilitarian purposes. The Crown case on each count of each indictment was overwhelming. The judge also felt that the pleas might be regarded as some evidence of contrition or remorse. The judge was correct in allowing a discount for the pleas of guilty but the discount warranted was small. 13 As to the first indictment the judge was attracted to the submission that some diminution of the prisoner's culpability was to be found in an undercover police officer being involved. He relied on two reasons. Firstly, the judge stated that any undercover officer even acting within the bounds of propriety, will offer some measure of encouragement to a proposed seller, for example, by at least maintaining an interest in the proposed transaction, thereby prompting a type of inevitability that the supplier will go ahead with the transaction. As it was the purpose of those conducting the operation to flush out drug suppliers they are not likely to call off a proposed purchase of drugs except for operational reasons. If the judge was intending to suggest that in every case when an accused supplies a police officer with heroin at the latter's request the court will assume that the police officer has offered some encouragement to the supplier and that the supplier's culpability is thereby diminished, I am unable to agree. 14 In Rahme (1991) 53A Crim R 8 at 13, Kirby P, with whom I agreed, stated that there was a fine line between the legitimate use of undercover agents to penetrate the illegal market in prohibited drugs (on the one hand) and the use of such agents to provoke an offender into committing offences which would not otherwise have been committed, or to extend the criminality in which otherwise he or she may not have engaged (on the other). There was no warrant for taking the view in the present case that the undercover agent pushed Chan further than he wished to go. The judge did not suggest that there was. 15 In Mandica (1980) 24 SASR 394 at 402 King CJ pointed out that the setting of a police trap does not give rise to leniency where the trap is merely to detect and obtain evidence against an offender who is only too ready to commit the offence. This is not a case where there is a reasonable possibility that Chan would not have supplied the heroin to someone but for the encouragement involved in the request. Chan was running a business supplying heroin. 16 In Taouk (1993) 65 A Crim R 387 Badgery-Parker J undertook a comprehensive review of the authorities. At 403 he said: "… the real thrust of the decisions is that even where the conduct of the police was regarded by the court as within the bounds of acceptable procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender." "… with sentencing … the fundamental task of the court is always to evaluate the criminality involved. The sentencing process is concerned with the levels of culpability of the offender who, whether as a result of police incitement, inducement or encouragement or otherwise embarks upon criminal conduct. See also Dugan 1984 2 NSWLR 554 where the court rejected the submission that in a case where conduct by police facilitated but did not incite the commission of a crime, the sentence should be reduced to mark the court's disapproval of the police conduct."