New South Wales Court of Criminal Appeal CITATION : Regina v Junaedy Adwinata [2001] NSWCCA 154 FILE NUMBER(S) : CCA 60266/00 HEARING DATE(S) : 20 April 2001 JUDGMENT DATE : 20 April 2001 PARTIES : Regina Junaedy Adwinata JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0181 LOWER COURT JUDICIAL Dodd DCJ OFFICER : COUNSEL : P. M. Winch - Crown L. M. B. Lamparti - Applicant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Applicant LEGISLATION CITED : Drug (Misuse and Trafficking) Act (1985) Criminal Appeal Act CASES CITED: Regina v Wong and Leung 1999 48 NSWLR 340 DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60266/00 WOOD CJ at CL SULLY J 20 April 2001 REGINA v JUNAEDY ADWINATA JUDGMENT 1 WOOD CJ AT CL: I will ask Sully J to deliver the first judgment. 2 SULLY J: On 5 May 2000 Mr Adwinata, the present applicant, stood for sentence in the District Court at Sydney. He had previously pleaded guilty to a charge of supplying a prohibited drug, the drug in question being heroin. Such an offence contravenes s 25 subs 15 of the Drug (Misuse and Trafficking) Act (1985) (NSW) and attracts, upon conviction, a statutory maximum penalty, relevantly, of imprisonment for 15 years. The learned sentencing Judge was asked to take into account one matter on a Form 1. The matter concerned goods in custody; and the relevant description of it, which can be taken conveniently from the Form 1, is simply to the following effect: "During the search of the offender's belongings by police two pearl necklaces and $944.75 were found in his backpack which may be reasonably suspected of being stolen or otherwise unlawfully obtained." 3 So far as concerns the principle offence to which the applicant pleaded guilty the relevant facts are as follows: " At about 4.45 pm on the day in question you were observed by police in Hay Street, Sydney. You were approached by another person and you walked, together with him, along Hay Street, before parting company. A short time thereafter police approached you and identified themselves and you were informed that you would be searched. During the search you reached into your right jeans pocket and began to remove a number of objects wrapped in silver foil, throwing the objects to the ground. You were stopped and asked what the objects were to which you replied,"rock". A total of seven foil wrapped objects, containing heroin, were located in your right pocket. A search was made of your backpack, in a side pocket of which police located a cigarette packet containing four foil wrapped pieces of heroin inside a piece of tissue. In another pocket of the backpack police located a metal candy tin which contained fourteen pieces of heroin wrapped in foil. The tin also contained a small plastic bag with two foil wrapped pieces of heroin. A plastic bag containing nine foil wrapped pieces of heroin was also located inside the tin. Your wallet was located in the backpack. Inside the wallet police located a piece of folded paper containing heroin. In the front pocket of the backpack police located a total of $935 in cash. A further $9.75 in coins was in a side pocket of the backpack. In respect of that amount of money you have asked for an offence of goods in custody to be taken into account in respect of the $944.75 and two pearl necklaces also found in the backpack, that offence being specified in a schedule to a Form One and I intend to take that into account. You were arrested and taken to a police station where you participated in an electronically recorded interview. During the interview you admitted intending to sell the heroin for cash. You said you had been selling heroin for four days and that you were training as a drug trafficker and received $50 per night and free meals for your efforts." 4 The learned sentencing Judge passed upon the applicant a sentence of imprisonment for three years, fixing a non-parole period of 27 months. Mr Adwinata seeks leave to appeal against that sentence; and he puts in support of his application, and by counsel, two essential submissions. The first of them concerns some remarks made by the learned sentencing Judge concerning the effect of a decision of a specially constituted Bench of this Court in Regina v Wong and Leung 1999 48 NSWLR 340. The second point concerns, essentially, what are said to have been misapprehensions entertained by the learned primary Judge concerning the importance of relevant statistics which had been drawn to his onour's attention. 5 As to the first of those propositions, the argument put simply is that the learned primary Judge in effect transposed the reasoning and the result of Wong and Leung to the context of the present matter without allowing, either sufficiently or at all, for the fact that Wong and Leung was a case concerned with the Commonwealth sentencing regime rather than the New South Wales State regime. It was concerned, as well, with a different category of offence. 6 It seems to me that a fair reading of what was in fact said by the learned sentencing Judge, - and I do not think it is necessary to repeat it chapter and verse, - does not support that argument. It seems to me that a fair reading of the totality of the remarks on sentence, something which it is necessary to do in order to set fair context for the particular passages now relevant, justifies, rather, the inference that what the learned primary Judge did was look to Wong and Leung, not in the sense that it somehow bound or fettered the approach which he should take in the present case, but that it gave, in a more general sense, useful guidance as to what might be thought a fair approach to the particular facts and circumstances with which his Honour was dealing. I do not, myself, think that a fair reading of the remarks on sentence supports the first of the two propositions now put. 7 The second of the propositions urged in support of the application in effect proceeds upon the basis of an argument that the proper application of the relevant statistical material now available suggests that the sentence passed by the learned primary Judge is manifestly excessive. That is to say, it is manifestly appellable as being plainly outside the range of a permissible sentencing discretion. For myself, I do not think that argument has been made good. If one looks with a proper restraint at nothing more than the admissions of the applicant himself, it is crystal clear that the offence for which he stood for sentence was an offence committed in a context of his willing participation as a street trafficker, and/or courier, of quantities of heroin. 8 It is surely not necessary to dilate yet again on what has been said time without number by differently constituted Benches of this Court concerning the seriousness with which that kind of behaviour will be viewed and punished by the Courts. It seems to me that if one takes into account the objective gravity of the offence, - and in my view, given the context of which I have spoken, its objective gravity was, to say the least, not insignificant, - and if one then brings to account the relevant subjective facts, of which I need say no more, it is not possible to sustain properly an argument that the bringing of all those matters into a fair balance indicates in the requisite legal sense so obvious an excess in the sentence passed as would warrant the intervention of this Court. Even were it possible to identify an error of law, as in my distinct view it is not, nonetheless I would have been unhesitatingly of the view that a different sentence, to use the words of the Criminal Appeal Act was, not "warranted in law." 9 In the circumstances, I would grant leave to appeal and dismiss the appeal. 10 WOOD CJ AT CL: I agree. 11 The order will be as Sully J has proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.