Regina v Vireak Long [2001] NSWCCA 159

New South Wales Court of Criminal Appeal

CITATION : Regina v Vireak Long [2001] NSWCCA 159 FILE NUMBER(S) : CCA 60555/2000 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 30 April 2001

PARTIES : Regina Vireak Long JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0395 LOWER COURT JUDICIAL Stewart DCJ OFFICER :

COUNSEL : M. C. Marien - Crown G. R. Heathcote - Applicant SOLICITORS : S. E. O'Connor - Crown Van Houten - Applicant

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Phelan (1993) 66 A Crim R 446 at 449 CASES CITED: Hampton (1998) 101 A Crim R 399 at 403 Bo Too and Maiereriki NSWCCA, unreported, 16 July 1992 per Hunt CJ at CL GDR (1994) 35 NSWLR 376 at 377-378 DECISION : Leave to appeal granted; substantive appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60555/2000

WOOD CJ at CL SULLY J

30 April 2001

REGINA v VIREAK LONG

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Sully J. I agree with his reasons and the orders he proposes.

IN THE COURT OF CRIMINAL APPEAL

60555/2000

WOOD CJ at CL SULLY J

30 April 2001

REGINA v VIREAK LONG

JUDGMENT

2 SULLY J: On 18 August 2000 Mr. Vireak Long stood for sentence in the District Court at Sydney. He had pleaded guilty previously, and at the earliest practicable opportunity, to a charge of having supplied not less than the commercial quantity of a prohibited drug, namely heroin. Such an offence contravenes the Drug Misuse and Trafficking Act 1985 (NSW); and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. At Mr. Long's request there were taken into account two related charges: first, a charge of having had in his custody an amount of $266.45 in Australian currency, being goods recently suspected of having been unlawfully obtained; and secondly, a charge of having self-administered heroin. In the event, a sentence of imprisonment for 6 years was passed upon Mr. Long. A non-parole period of 4-1/2 years, that is to say 75% of the head sentence, was set. Mr. Long seeks leave to appeal against the asserted severity of the sentence thus passed upon him. 3 The relevant facts can be taken conveniently, and as follows, from the learned sentencing Judge's remarks on sentence: "The agreed facts are, about 2.35 pm on Wednesday 12 April 2000 the prisoner was at the ticket counter of the Qantas domestic terminal at Sydney Airport. He purchased a cash one-way ticket to Adelaide on a Qantas flight which was due to depart ten minutes later. New South Wales police from the drug trafficking unit were conducting observations of the prisoner and when he was walking to the departure gate he was stopped and spoken to. A consent search of the prisoner's overnight bag revealed that it contained a plastic box with disposable syringes, sterile swabs, spoons et cetera, in the vernacular called a "fit kit" which is commonly used by intravenous heroin users. He had no toiletries, underwear or socks with him. When questioned further the prisoner said he had no identification and was a heroin user with a criminal record including a previous offence of supplying a prohibited drug. He was searched and found inside his unlined denim jacket behind the side pocket flaps were two rectangular shaped blocks of off-white coloured material. Each block was wrapped in clear cellophane. One block had a corner of cellophane torn away and a small section of the block was missing. When questioned about these blocks the prisoner admitted they were heroin. The prisoner was arrested and taken to Maroubra police station where in his presence the blocks were weighed and found to be in the first case 352.6 grams and the second 358.8 grams. The prisoner was interviewed by way of an ERISP interview and stated during that interview that he had been sent the blocks of heroin in a package mailed to him at his home in Merrylands. He allegedly received, that is to say according to him, the package the day before. He told police that it also contained $1,000 in cash and an unsigned handwritten note in English which said, "You have to take this to Adelaide". The prisoner said he suspected who had sent this package but refused to supply police with any details. The prisoner said he did not make any inquiries to verify the source and although there was no threat in the note he assumed that he or his family may be harmed if he did not deliver it. The prisoner said he was unable to supply police with details of where he was supposed to stay in Adelaide, who he was supposed to meet or how he was to be contacted." 4 The learned sentencing Judge made findings, reached beyond reasonable doubt, "………… that this prisoner knows a lot more about this escapade than he has ever confessed to. He told police that the money in his possession was the remainder of the $1,000 that had accompanied the drugs. The prisoner said that he had used some of the heroin from one of the blocks and injected it into himself at his home about 11 am that day". 5 In my opinion all of these findings were amply open to his Honour. 6 His Honour made, in addition, the following finding: "An aggravating feature is that at the time of committing this offence the prisoner was subject to a recognisance under section 558 of the Crimes Act imposed at the Fairfield Local Court on 9 September 1998 for the same type of offence, namely for supplying a prohibited drug, namely heroin." 7 The facts thus found were undoubtedly supported by the evidence. His Honour correctly regarded those facts as aggravating the objective gravity of the particular offences with which his Honour was dealing. 8 Given the foregoing facts and findings, the supply offence, in particular, in connection with which the applicant stood for sentence was, on any appropriate reckoning, an offence of significant objective gravity. The learned sentencing Judge made the following particular observations with which I respectfully agree: "In this matter the prisoner had a chance and did not take it. The case, as I have said, involves a considerable amount of heroin worth a lot of money. It would have caused a considerable amount of grief and woe if it had reached the streets. Fortunately I think for everyone concerned, and I include here the prisoner himself, the unfortunates to whom this drug was aimed, and the prisoner's friends and relations, that he was intercepted. Who knows, the next dose could have been an overdose." 9 The application of correct sentencing principles required that the learned sentencing Judge recognise, and take prudently and sensibly into account, the following subjective matters that were particular to the applicant's case: