New South Wales Court of Criminal Appeal CITATION : R v Qin Liu [2003] NSWCCA 65 HEARING DATE(S) : 17/3/03 JUDGMENT DATE : 17 March 2003 JUDGMENT OF : Wood CJ at CL at 1; Studdert J at 24 DECISION : Leave to appeal granted. Appeal dismissed. CATCHWORDS : CRIMINAL LAW - Supply prohibited drug - plea of guilty - appeal against severity of sentence - absence of interpreter at certain times - whether applicant understood plea, instructions by solicitor, and pre-sentence report. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 CASES CITED : Regina v Pilley (1991) 56 ACR 202 R v Valentini (1989) 46 ACR 23 PARTIES : Regina Qin Liu FILE NUMBER(S) : CCA 60087/02 COUNSEL : D M Howard (Crown) Applicant in Person SOLICITORS : S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 60087/02 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER : - 5 - IN THE COURT OF CRIMINAL APPEAL 60087/02 WOOD CJ at CL STUDDERT J Monday 17 March 2003 Regina v Qin Liu Judgment 1 HIS HONOUR: The applicant seeks leave to appeal against the severity of a sentence of imprisonment for five years with a non-parole period of three years which was imposed upon him by Sorby DCJ on 19 February 2002. This followed upon his plea of guilty to one count of the supply of not less than the commercial quantity of cocaine. Three other matters, namely the possession of a prohibited drug, MDMA, having a knife in his possession in a public place and having property in possession suspected of being stolen or unlawfully obtained, namely $705, were taken into account on a form 1. 2 The applicant was arrested in the course of a surveillance operation which culminated in a search of the premises where he lived. Australian Federal Police agents found in those premises a box containing almost half a kilogram of cocaine, some small quantities of drugs wrapped in aluminium foil and a pair of scales upon which traces of cocaine were found. Additionally, there were recovered the knife and the cash previously mentioned. 3 In sentencing the applicant, his Honour took into account his early plea of guilty, some limited assistance of an intelligence nature, which he had supplied to police, the absence of any prior criminal record and the fact that he had a history of poly-drug abuse. 4 It was evident from the attempts by Australian Federal Police agents to interview the applicant that he had a limited command of the English language at the time of his arrest, which occurred on 29 June 2001. 5 A presentence report was prepared on 16 January 2002, without the benefit of an interpreter, in the course of which its author recorded the applicant's attitude to the offence, observing: " Although Mr Liu pleaded guilty to the offences discussion regarding his offending behaviour revealed that he does not accept any responsibility. He claimed that he believed that he was being sentenced for possession of a drug rather than supply. He went on to claim that the cocaine found in his flat belonged to another person and that he was keeping it at his premises for that person. Mr Liu stated that unbeknown to that person, he was regularly using the cocaine to maintain his drug habit. Mr Liu further claimed that the scales found at his home were not his. With regard to the knife, he claimed that he had used this for the purpose of eating fruit and that it was not for any sinister purpose, adding that his cocaine usage had caused him to be confused and he had forgotten that he had the knife ." 6 In his interview with Australian Federal Police agents, he had in fact said in relation to the knife that was in his possession, "only for food, this not weapon." That exchange did tend to indicate that he had some capacity to communicate in English. 7 In an interview conducted with a consulting psychologist, Gregory Fathers, with the assistance of an interpreter, the applicant was recorded as saying that, "the quantity of cocaine in his possession had been given to him by an acquaintance" and that he had been, "using it as his own supply." 8 Each of these documents was tendered before his Honour in the course of the sentencing proceedings, in which he was represented by Mr P. Murphy. 9 It would appear that the interpreter did not arrive at court until counsel had commenced their addresses before his Honour. The transcript of the proceedings does, however, suggest that there was then a short adjournment of the proceedings, although whether that was due to the arrival of the interpreter remains unclear. 10 The applicant appeared in person before us, although with the assistance of an interpreter. His attention was drawn to the letters supplied to the Court in which he had set out the various matters relied upon in support of his application to the effect that: (a) His solicitor had not considered the case properly and that, after the submissions, he was asked to sign certain paperwork which was not explained thoroughly to him. (b) The officer of the Probation and Parole Service who had prepared the presentence report had misunderstood his replies due to his limited fluency in the English language, and (c) The sentencing judge had sentenced him to a longer term than was appropriate by reason of the observations in the presentence report concerning his lack of remorse, yet he had been unable, during the interview with the author of that report, to convey what he claimed to have been considerable remorse on his part. 11 In addition, this morning, he indicated that he considered that he had stood for sentence only upon the basis that the drugs had been in his possession for his personal use and not for supply. That invited the question whether, had he been given the opportunity to do so, he could have satisfied the requirements of s 29 of the Drug Misuse and Trafficking Act 1985 to rebut the deeming element. 12 Being concerned that the applicant might not understand fully the implications of any such submission, the Court arranged for him to have a brief consultation with a public defender and with an officer from the Legal Aid office who were present in court in relation to another matter. We were assured by Ms Burgess, and this was confirmed by the applicant, that he understood the options available to him as well as the significance of what was involved in an offence of deemed supply, and did not seek to withdraw his earlier plea of guilty. On the contrary, he preferred to proceed with the appeal being confined to one relating to sentence. 13 He submitted that it was his understanding that the sentencing judge had indicated that he would receive a combined discount of thirty per cent in relation to his assistance and his early plea. 14 It is evident that his Honour took into account the contents of the presentence report in relation to the applicant's contrition. In this respect his Honour said: " The prisoner has not demonstrated before me any contrition for his offence. On the basis of the probation and parole report the prisoner does not accept any responsibility." His Honour went on to refer to the passage in the pre sentence report, extracted above. 15 The version which the applicant had given to the psychologist differed to a degree, although not significantly in relation to any display of contrition or remorse on his part, insofar as he had there asserted that the cocaine had been given to him by an acquaintance and that he was using it as his own supply. 16 There were no additional indications in this report in relation to any feelings of remorse or contrition, nor was any evidence otherwise placed before the Court in this respect. 17 In relation to contrition or remorse it is not correct that his Honour entirely discounted that factor since he expressly found that the plea, not only had a utilitarian benefit, but did demonstrate "to some degree some contrition on the prisoner's part". Moreover, there was a positive finding in the applicant's favour, leading to a considerable reduction in the ratio between the non-parole period and the head sentence, arising out of his Honour's acceptance that he had a motivation to rehabilitate himself in prison. 18 The psychologist's report makes it clear that the applicant understood that the case against him was one of deemed supply. Upon the evidence available, that was to my mind the only basis upon which he stood for sentence. 19 To succeed on this application in circumstances where the applicant does not seek to go behind the plea, it is necessary that he demonstrate that the sentence was manifestly excessive. I am not persuaded that the applicant has shown that to be the case. The offence was serious in that it involved an amount of cocaine which was almost double the commercial quantity, and the case was accordingly one which called for a significant element of general and specific deterrence. In that regard, the fact of the applicant's own drug addiction did not constitute a mitigating factor, R v Valentini (1989) 46 ACR 23. 20 Moreover, as was established in Regina v Pilley (1991) 56 ACR 202 where a person is convicted of, or pleads guilty to, a deemed supply offence it is not open to the sentencing court to deal with the matter on any basis other than that the offender had the drug in his or her possession for the purpose of supply. 21 Additionally, it was necessary that the sentence in this case reflect the fact of the form 1 matters in accordance with the guideline judgment of this Court in Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 Number 1 of 2002. 22 In relation to the suggestion that his Honour indicated that the applicant was to receive a thirty per cent combined discount, I observe that there is nothing on the face of the record to indicate that anything was said to that effect. Such a discount would, in my view, in the circumstances of this case, have been quite excessive and unjustified. 23 I am satisfied that the sentence fell entirely within the legitimate range of sentencing discretion and while I would grant leave to appeal, I would dismiss the appeal. 24 STUDDERT J: I agree with the orders proposed. 25 WOOD CJ AT CL: The orders of the Court will therefore be as I have indicated. That means your appeal has been dismissed Mr Liu. ********** Last Modified: 05/12/2003 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.