Reported Decision : 137 A Crim R 120 New South Wales Court of Criminal Appeal CITATION : REGINA v WONG [2002] NSWCCA 527 FILE NUMBER(S) : CCA 60535/00 HEARING DATE(S) : 18 December 2002 JUDGMENT DATE : 18 December 2002 Regina PARTIES : v Peter WONG (aka Ka KWAN) JUDGMENT OF : Adams J at 1; Smart AJ at 14 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/11/1271 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : E A Wilkins (Crown) P M Strickland (Applicant) S E O'Connor (Crown) SOLICITORS : D J Humphreys (Applicant) LEGISLATION CITED : Sentencing Act 1989 Regina v GDR (1994) 35 NSWLR 376 CASES CITED: R v Bragias (1997) 92 A Crim R 330 Regina v Fahda [1999] NSWCCA 267 DECISION : Leave to appeal granted; Appeal allowed; Sentence below quashed; In lieu thereof a sentence in relation to count 1 of a period of two years' imprisonment, commencing from 23 May 2000 and expiring on 22 May 2002 and on the second count, a sentence of imprisonment of four years commencing on 22 May 2002; The applicant to be eligible for release to parole on 22 May 2004. IN THE COURT OF CRIMINAL APPEAL 060535/00 ADAMS J SMART AJ WEDNESDAY 18 DECEMBER 2002 PETER WONG (AKA KA KWAN) v REGINA (NEW SOUTH WALES) JUDGMENT 1 ADAMS J: Two offences in respect of which the applicant was ultimately convicted were committed between 9 April and 17 April 1992. He was arrested on 28 April 1992 but for various reasons the trial did not commence until 16 May 2000 when the applicant pleaded not guilty. On 22 May 2000 the jury found the applicant guilty on both counts. 2 On 20 July 2000 the applicant was sentenced upon count 1 which was that he knowingly took part in a supply of heroin on 10 April 1992 to a fixed term of two years, commencing 23 May 2000 and expiring on 22 May 2002. On the second count, which was that the applicant knowingly took part in the supply of about a pound of heroin between 9 and 17 April 1992, he was sentenced to a term of four years imprisonment with a non-parole period of three years commencing on 22 May 2002. The learned sentencing judge ordered that the applicant will be eligible for release on 22 May 2005. The sentences were thus wholly cumulative. 3 The facts are regrettably unremarkable. An undercover officer attempted to purchase heroin. He met a drug dealer, Lee, who agreed to supply heroin. He supplied one ounce of rock heroin which had been procured by the applicant and handed over to Lee a short time before it was given to the officer. His Honour found, and it was evident, that this was a preliminary deal, Lee indicating that he could obtain larger quantities of heroin. Five days later the undercover officer and Lee agreed on the supply of a pound of heroin for $95,000. On the following day this money was handed over to Lee and in turn given to the accused. Lee and the accused left the place where the transaction occurred under covert police surveillance. The accused decamped, Lee was arrested and most of the money was recovered. 4 The Crown case was that the role played by the accused in relation to the first count in the indictment was the procurement of one ounce of heroin for Lee to give to the undercover officer. In respect of count 2 the gravamen of the Crown case was that the applicant had agreed to supply a pound of heroin. His Honour categorised the accused's role as that of "an active and major principal". No issue is taken with this description of the applicant's culpability. 5 As I have mentioned, the applicant was arrested on 28 April 1992. He was committed for trial in November 1993 and the matter was listed for arraignment in the following month in the District Court. I do not propose to set out the unfortunate series of events that delayed the trial unconscionably. Some of the delay was due to the applicant's misbehaviour. The overwhelming bulk of it was not. It is fair to say that, conservatively, seven years of the delay could not be attributed to the applicant. I am minded to think that this period is actually more than eight years. 6 In dealing with the sentences, his Honour said, "the first offence calls, it seems to me, for a penalty of two years as a minimum. The second relates to a commercial quantity of heroin and calls for a more severe penalty of imprisonment for four years with a non-parole period of three years. The two offences are interrelated, but it is nonetheless appropriate to sentence cumulatively so that the criminality of both offences is reflected in the overall sentence. There are no special circumstances which would justify the alteration of the normal relationship between the overall sentence and the non-parole period. In the light of the sentence for count 2 and its cumulation, it is appropriate to sentence for count 1 on the basis of what will effectively be the minimum term in any event, and to set no non-parole period for the first count." 7 In the result, however, as has been noted, the applicant was given an overall sentence of six years and was not eligible for parole until he had served five years. In no sense then was the sentence of two years for count 1, a fixed period, effectively the minimum term. It was less than half of the effective minimum term. I have had some difficulty with interpreting his Honour's judgment, but in the end I have come to the view that his Honour's calculation was simply mistaken. I do not think that his Honour in fact intended to impose a sentence which had the effect of such a substantial departure from the usual proportion between the overall sentence and the non-parole period, whether signified by s 44 of the Sentencing Act 1989 or by the general practice adverted to in Regina v GDR (1994) 35 NSWLR 376 at 382. However, whether mistaken or not, there was nothing in this case which justified a departure from that usual relationship. Accordingly, one way or another, I conclude that the sentence below erred in law. That leads to the necessity of this Court re-sentencing the applicant. 8 The applicant's criminal record shows some petty gambling offences in early 1979 and 1982, some apparently relatively minor assaults in 1987, gaming offences once more in 1992 but a more serious offence of demanding money with menaces in March 2000, which subjected him to a sentence of 12 months periodic detention. In 1997 he was subjected to a 100 hours community service order and fines in respect of four counts of conducting transactions to avoid cash reporting requirements. In November 1997 he was fined $400 for possessing a prohibited drug. Although these crimes are suggestive they are not of themselves serious and I do not think they weigh significantly in the present task of sentencing the appellant. 9 It appears that the applicant came to Australia from Hong Kong in 1973 and was naturalised in 1991. He had been married in 1975 but divorced. However, he later resumed his relationship and, when not in custody, the offender resides with his wife and their two adult children. He has had some employment working in Chinese restaurants and as a card dealer at the casino. He had opened his own restaurant at Kempsey for several years until 1991 when the family returned to Sydney. It does not appear that Mr Wong has any problem with illegal drugs or alcohol. 10 His attitude to the offence was that it was a business arrangement with the co-offender which he was involved in, in an effort to recover monies the co-offender owed him. The learned sentencing judge accepted that the organisation of this particular offence was fairly incompetent and that the offender did not seem to have any signs of wealth. As his Honour pointed out, however, the 1997 conviction in respect of the concealing of money transactions, and which involved posting amounts of money off-shore in return for a fee, indicated that he had a history of involvement with drug crime, albeit at the lower scale. His Honour concluded, and in my view there was a proper basis for this conclusion, that the appellant at the time of the offences was involved in the illegal drug scene in Sydney. Previous good character, contrition or provision of assistance to authorities does not apply in his case. 11 In my view the delay in this case and the cumulation of the sentences does give rise to special circumstances, justifying a departure from the statutory calculation. It is unnecessary for me to determine the apparent difference of opinion between Sheller JA and Grove J as exposed in R v Bragias (1997) 92 A Crim R 330 and discussed by Simpson J in Regina v Fahda [1999] NSWCCA 267. To my mind all the formulations dealing with the impact of delay upon the sentencing process depend to a greater or lesser extent upon a perception of hardship. Sometimes that hardship will easily be inferred, for example where an offender pleads guilty and sentence is delayed for reasons outside his or her control or, where the offender pleads not guilty, if the offender has done all in his or her power to bring the trial on and has opposed adjournments which might be sought by the prosecution. Even in this latter case, some evidence of the hardship caused by the delay must be capable of being inferred from the circumstances. In short there must be some evidence of it before a Court is entitled to take it into account. 12 There are some cases of such unconscionable delay where there is no hardship but it is offensive to the proper notions of justice to measure out the full vigour of the criminal law; but those cases will, I think, be rare. In the present circumstances I think that some allowance should be given for delay and I have taken it into account in setting the non-parole period. 13 Accordingly I would give leave to appeal, allow the appeal, quash the sentence passed below and substitute therefore a sentence in relation to count 1 of a period of two years imprisonment, commencing from 23 May 2000 and expiring on 22 May 2002 and on the second count, a sentence of imprisonment for four years commencing on 22 May 2002. I would order that the applicant be eligible for release to parole on 22 May 2004. 14 SMART AJ: The accumulation of sentences was capable of constituting special circumstances. The accumulation in the present case did constitute special circumstances, which should have led to a shorter non-parole period on the second sentence. There was no warrant for departing from the usual ratio of three to one for the sentences overall. Error has been shown. I also accept the view that the delay in the present circumstances was also capable when taken with the accumulation of sentences of constituting special circumstances. 15 This is not the case to embark upon a review as to the role of delay in dealing with sentencing matters. The delay point apparently was not taken before the sentencing judge and no evidence was led before him on that issue. There is in the present case no evidence as to the hardship, if any, caused by the delay and it is not self-evident. I would not assume that the accused wanted an early trial and was not content for the matter to go over. Delay often sees memories fade and Crown cases weaken. Nor would I assume that delay of itself necessarily leads to a reduction in sentences. 16 Sometimes an accused will be able to show that because of delay his financial resources have been depleted by having to prepare for trial on more than one occasion. The history revealed in this matter of the trial Court not reaching the matter on quite a number of occasions or cancelling hearing dates is regrettable. It is also a case in which the Crown sought on occasions for reasons which appear to be adequate an adjournment of the trial. I agree with the orders proposed by Adams J. 17 ADAMS J: The orders will be therefore as I have indicated. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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