New South Wales Court of Criminal Appeal CITATION : Regina v Nuth [2001] NSWCCA 318 FILE NUMBER(S) : CCA 60777/00 HEARING DATE(S) : 1`7 August 2001 JUDGMENT DATE : 17 August 2001 PARTIES : Regina v Savuth Nuth JUDGMENT OF : Sully J at 22; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2140 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : COUNSEL : (A) A P Cook (C) G E Smith SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - supply of 3 very small quantities of heroin in 30 days by 18 year old youth - valuable admissions proving Crown case - rehabilitation LEGISLATION CITED : Drug Misuse & Trafficking Act 1985 CASES CITED: Nil DECISION : Leave to appeal granted - appeal allowed - sentence quashed - In lieu of the sentence imposed, the applicant is sentenced to three years imprisonment starting on 26 August 2000 with a non-parole period of 18 months starting on that day and ending on 25 February 2002. Order that the applicant be released on parole on 26 February 2002 on conditions settled by the Parole Board. Special regard should be paid to supervision of his drug rehabilitation. IN THE COURT OF CRIMINAL APPEAL 60777/00 SULLY J SMART AJ Friday 17 August 2001 REGINA v SAVUTH NUTH JUDGMENT 1 SMART AJ : Savuth Nuth seeks leave to appeal from the District Court against the severity of a sentence of imprisonment for four years commencing on 26 August 2000 with a non-parole period of two years for supplying heroin on three occasions within 30 days contrary to s 25A of the Drug Misuse and Trafficking Act 1985 . The offences occurred within 30 days of 6 May 1999. The judge took into account two further offences, namely, supplying heroin on 2 September 1999 and goods in custody, being $30, on the same day. 2 On 6 May 1999, about 2.16pm, the applicant approached a man at Cabramatta railway station. They walked into a carpark on Broomfield Street, Cabramatta. The applicant sold a small quantity of heroin to his customer. The applicant returned to Cabramatta railway station and approached another male. They again walked south on Broomfield Street, stopping inside a garbage bay. The applicant sold a small quantity of heroin to the second male. The applicant said he received $15 and $20 for the sales. After the second sale the applicant returned to the railway station. Police stopped him and located $120 in his wallet. 3 During a recorded interview the applicant stated that he had sold heroin on previous occasions. He said that he had started to do this "about a week or two weeks" previously. He said that he had sold a cap of heroin on the previous day. He said, in effect, that he sold heroin two to three times per week and that on his selling days he sold two or three caps, sometimes a bit more. He sold the caps just to make money. He declined to name his supplier when pressed to do so. The police summary of facts recorded and the judge stated that the applicant said that he sold heroin on two or three days a week and, on average, up to six to seven caps on those days. The sale of six to seven caps is not borne out by the record of interview on which the police facts were based. The applicant told the police that he used heroin occasionally. 4 The applicant was granted bail and committed for sentence before the District Court. He did not appear and a bench warrant was issued for his arrest. He was ultimately arrested on 2 September 1999 for the offences earlier mentioned. 5 He has only one prior conviction, namely, for shoplifting. On 25 March 1999 he was given a 12 month good behaviour bond. He was thus on a bond at the time of the offence of 6 May 1999. He was also on bail when he committed the offences on 2 September 1999. The judge emphasised the need for deterrent sentences when dealing with people who are selling heroin in breach of a bond and bail conditions. 6 The applicant was born on 5 January 1981 and thus aged 18 at the time of the offences. He was unemployed and resided with his parents. He was born of Cambodian parents in a refugee camp in Thailand. They came to Australia when he was about three. He is one of six children and was expelled from school in Year 10. He worked as a process worker for about two months and then had a trial job in 1998 but left because of low pay and has not worked since. He has been in receipt of social security. 7 In his evidence the applicant said he smoked marijuana in 1996 and commenced using heroin in 1998. In 1999 he used it intravenously. He said that he had not used heroin in gaol. He said that he needed someone to help him through his drug addiction. 8 The judge noted that there were inconsistencies between the applicant's evidence and what he told the police. The judge thought that some of them might be due to his limited English expression and that there was an overlay of drug use about the case. The probation and parole officer wrote: "He presents as an inarticulate and disoriented young man. His lifestyle appears to lack direction and motivation to develop worthwhile objectives. He has demonstrated an immature, irresponsible attitude and has succumbed to undesired pressure to continue with illegal behaviours." 9 The applicant needs close supervision if he is to be rehabilitated. The judge's finding of special circumstances was essentially based on the applicant's need for extended assistance upon his release from custody in overcoming his drug problems. I would add the applicant's youth and this being his first gaol sentence. 10 The judge thought that the applicant was not intelligent and that this explained a lot of his problems. He did not appreciate the seriousness of his situation. I would respectfully agree. The offence of supplying heroin in September 1999 supports that view. The judge took into account the plea of guilty both for its utilitarian value and as an expression of contrition. 11 The applicant complained that the judge did not quantify a percentage reduction in sentence for the utilitarian value of the plea. It could be described as a plea at the earliest opportunity. The committal for sentence took place on 8 July 1999 about two months after the arrest. The plea was entered after the applicant had made comprehensive admissions. These form the basis of the Crown case. 12 The Crown case depended on the applicant's admissions. Without them the Crown could not have proved the third instance of supply within 30 days. Without the admissions, the evidence of the offences on 6 May 1999 was not strong. The police had observations of one suspicious transaction and another series of suspicious actions. There was probably enough to support one charge of supply. Locating $120 in the applicant's wallet was not cogent. It was the applicant's admissions and frankness which proved the Crown case. I doubt if this 18 year old youth with his limited English realised the effect of what he was saying, apart from knowing that what he was doing was wrong. 13 It was the applicant's case that the sentence does not reflect the value of the applicant incriminating himself by providing the police with the evidence which they did not have. The judge's reasons do not reveal that the judge fully appreciated the value to the Crown of the admissions made by the applicant. It was the admissions that revealed that the offences were not isolated ones. The judge accepted that the offences were towards the bottom end of the scale. The judge emphasised the stupidity and irresponsibility of the applicant. 14 The applicant relied upon the small amounts supplied and the small number of occasions on which he had supplied heroin; that is, two to three times per week for one to two week prior to 6 May 1999. The appellant played a minor role. Nevertheless, it is important that people playing such a minor role be kept off the streets and that the distribution of illicit drugs into the community be stopped. 15 Given both the applicant's lack of intelligence and lack of awareness of the effect of what he was doing, I doubt if anyone would have trusted him to do more than what he was doing. I would not attach significant weight to the judge not specifying the reduction which he allowed for the early plea of guilty and the applicant's contrition. He did take these matters into account. 16 The offence was, indeed, serious. Minor operatives play a significant part in releasing drugs into the community. The further offences on 2 September 1999 compound the applicant's criminality. The Crown rightly stressed the importance of keeping minor operatives off the street and that drug dealers tend to use young people in such a role because they tend to receive lesser sentences. 17 In my opinion the sentence imposed does not make sufficient allowance for the applicant's early plea of guilty, his youth, his lack of appreciation of the full extent of what he was doing and his valuable admissions. The judge's factual error causes me to query whether the judge has upgraded the applicant's criminality. 18 In my view the sentence was manifestly excessive. Taking into account the offences of 2 September 1999, the correct sentence is one of three years imprisonment with a non-parole period of 18 months. As earlier indicated there were special circumstances. 19 On resentencing I have had regard to the affidavit of the applicant of 8 August 2001; that attaches a number of documents from the prison authorities and the prison health authorities. 20 The health assessment shows that the applicant was suffering from the effects of drugs on his admission to gaol and that he was placed on a drug detoxification/withdrawal programme. He says that he has now become drug free. He has attended quite a number of courses and has received good reports. There has been a marked improvement in his attitude. It is important that his drug rehabilitation continue. 21 I propose the following orders: 1. Leave to appeal granted; appeal allowed; sentence quashed. In lieu of the sentence imposed, the applicant is sentenced to three years imprisonment starting on 26 August 2000 with a non-parole period of 18 months starting on that day and ending on 25 February 2002. 2. Order that the applicant be released on parole on 26 February 2002 on conditions settled by the Parole Board. Special regard should be paid to supervision of his drug rehabilitation. 22 SULLY J: I agree. The orders of the Court are as proposed by Smart j. ******** 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.