New South Wales Court of Criminal Appeal CITATION : REGINA v WAN & PHAN [2001] NSWCCA 501 FILE NUMBER(S) : CCA 60568/00; 60276/01 HEARING DATE(S) : 23 November 2001 JUDGMENT DATE : 23 November 2001 Regina PARTIES : v Yu Ming WAN & Canh Loc PHAN JUDGMENT OF : Barr J at 1; Adams J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0303; 00/11/0507 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : Yu Ming WAN (Applicant in person) Mr P Byrne SC (PHAN) COUNSEL : Mr P G Berman SC (Crown/WAN) Ms E A Wilkins (Crown/PHAN) Applicant in person (WAN) SOLICITORS : Mark Klees & Associates (PHAN) S E O'Connor (Crown) LEGISLATION CITED : Justices Act 1902 Drug Misuse and Trafficking Act 1985 CASES CITED: Lowe v The Queen 154 CLR 606 at 617 Thomson and Houlten v The Queen [2000] NSWCCA 309; 49 NSWLR 383 DECISION : See paragraphs 14, 15, 17, 18, 19 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60568/01 60276/01 BARR J ADAMS J FRIDAY 23 NOVEMBER 2001 REGINA V YU MING WAN REGINA V CANH LOC PHAN JUDGMENT 1 BARR J: The Court is in a position to give judgment now. I will ask Justice Adams to give the first judgment. 2 ADAMS J: Each applicant appeals against a sentence of ten years with a non parole period of seven and a half years, which were imposed in the District Court on 21 August 2000 in respect of the applicant Wan and 12 October 2000 in respect of the applicant Phan. 3 Wan was convicted on her plea made at the committal proceedings under s 51A of the Justices Act 1902. The two offences were of supplying not less than a large quantity of a heroin under s 25(2) of the Drug Misuse and Trafficking Act 1985. The facts are adequately stated for present purposes in the judgment of his Honour, the Chief Judge of the District Court and are not controversial. 4 The applicant Wan's crimes were uncovered by virtue of an undercover operation by the National Crime Authority using an undercover operative and an informer. They entered into a transaction which was completed on 9 November 1999 when the applicant supplied 350.4 grams of heroin, 75.3 percent pure, for $51,000 in cash. On 17 November she agreed to supply five blocks of heroin similar in weight to the block already supplied at a price of $50,000 each. 5 The arrangement in the result was that this supply would take place with the co-operation of the other co-offender and applicant Phan who agreed to supply the blocks of heroin for a slightly lower price. It was on the occasion when the further blocks of heroin were to be supplied that the police arrested the applicants and a third offender. 6 In the result, the difference in substantive criminality that separates the applicants is that the applicant Wan was guilty of supplying on two occasions an amount of 1.4 kilograms of heroin jointly with Phan and on one occasion 350.4 grams of heroin on her own account. She is guilty of two offences. Phan is guilty of one. She is guilty of supplying 1.75 kilograms of heroin. He is guilty of supplying 1.4 kilograms of heroin. 7 It seems to me that there is a real, and not merely nominal, distinction between two offences of supply and one such offence and between supplying twenty percent more overall in respect of one applicant as distinct from the other. 8 Accordingly, I am satisfied that so far as the applicant Phan is concerned, in dealing with his criminality as being the same as that of the applicant Wan, his Honour was in error. Having regard to the considerations referred to in Lowe v The Queen 154 CLR 606 at p 617, Phan does have a justifiable sense of grievance. 9 A second matter which affects both sentences equally is that His Honour said that he took into account the plea of guilty as indicative of contrition but also justifying a discount because of the utilitarian value of that plea. His Honour, however, in stating the extent of that discount said it was relevant that the cases against the applicants were extremely strong and that there would have been a degree of futility in defending the charge or charges. 10 As was pointed out in Thomson and Houlten v The Queen [2000] NSWCCA 309; 49 NSWLR 383, the strength of the Crown case is not a factor to be taken into account in considering the appropriate discount for a utilitarian plea. It is, undoubtedly, material to the issue of contrition. 11 The relevant considerations measuring a utilitarian plea are stated by the Chief Justice (49 NSWLR at 418) as being, first of all the time at which a plea is entered, and secondly, the complexity of the issues about which evidence will have to be gathered and adduced. The Court specified that the appropriate range for a discount for what I might call a conventional case is between ten and twenty five percent noting that, within such a range, where "the discount should fall in a particular case is a matter for discretion of the sentencing Judge". 12 In conflating the strength of the Crown case and the appropriate discount for the utilitarian value of the plea, it seems to me that his Honour, with the greatest respect, erred. The error had a significant effect, to my mind, on the result. His Honour said that his starting point in each case was twelve years imprisonment that he reduced to ten by virtue of the plea assuming that contrition was no part of the plea by virtue of the fact that the Crown case was overwhelming, which would have been consistent with principle. That would still have left his Honour with a need to consider what was the appropriate utilitarian discount. 13 The twenty five percent discount seems to me to have been appropriate in this case, if the principles measuring such a discount as specified in Thomson and Houlten were applied. Although this was not a case of exceptional complexity it was certainly a case involving some complexity, and trial duration. There was no basis, as I see it, for reducing the twenty five percent by any perceived simplicity or brevity of trial. There was an additional element here in that the evidence, a significant part of the evidence must have been adduced from undercover operatives and an informer, and it is obviously in the public interest that such persons be exposed as little as possible. Hence a real public interest in obviating the need for such persons to give evidence is one of the considerations applicable to setting the appropriate discount. 14 I have come to the view that the starting point of twelve years was an appropriate starting point, in the circumstances of this case, so far as the applicant Wan is concerned. The result, on my calculations, therefore, is that, following the quashing of her sentence below, a sentence of nine years be substituted with a non parole period of six years and nine months. The sentence should commence from 17 November 1999 and she will be eligible for parole on 16 August 2006. 15 In respect of the prisoner Phan, for the reasons that I have indicated, his sentence should be less than that of the applicant Wan. My assessment is that, taking into account a discount of twenty five percent, his sentence should be seven years and six months, dating from 17 November 1999 with a non-parole period of five years and seven months, thus making him eligible for parole on 16 June 2005. 16 Those are the orders I propose. 17 BARR J: I agree. The orders of the Court, therefore, are that in each case leave to appeal is granted and the appeal is allowed and the sentence quashed. 18 In the case of Wan there will be a sentence imposed as proposed by Justice Adams. 19 In the case of Phan, there will be a sentence imposed as proposed by Justice Adams. *************** 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. 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