REGINA v. LAO [2003] NSWCCA 315

New South Wales Court of Criminal Appeal

CITATION : REGINA v. LAO [2003] NSWCCA 315 HEARING DATE(S) : Friday 31 October 2003 JUDGMENT DATE : 31 October 2003

JUDGMENT OF : Spigelman CJ at 31; O'Keefe J at 36; Greg James J at 1 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : Criminal law - sentence - appeal - absence of express mention by sentencing judge of guilty plea - expression of intention by sentencing judge to pass a low sentence - whether plea disregarded - what is appropriate range - sentence within an appropriate range. LEGISLATION CITED : Drug (Misuse & Trafficking) Act 1985 CASES CITED : Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : REGINA v. LAO, Binh Cuong FILE NUMBER(S) : CCA No. 60267 of 2003 COUNSEL : Crown: D. Howard App: H. Dhanji SOLICITORS : Crown: C.K. Smith App: S.E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3398 FILE NUMBER(S) : LOWER COURT Moore, DCJ. JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL No. 60267 of 2003

SPIGELMAN, CJ. O'KEEFE, J. GREG JAMES, J.

FRIDAY 31 OCTOBER 2003 REGINA v. BINH CUONG LAO Judgment

1 GREG JAMES, J: This application for leave to appeal against sentence is brought by an applicant who was convicted on his plea of guilty by Acting Judge Moore in the District Court of New South Wales at Campbelltown of the offence of supplying a prohibited drug in a quantity greater than or equal to a large commercial quantity. 2 This is an offence under s.25(2) of the Drug (Misuse & Trafficking) Act 1985. The maximum sentence for this offence is life imprisonment, a fine of $550,000 or both. 3 For that offence his Honour sentenced the applicant to imprisonment for five years to commence 9 December 2002 and to expire on 8 December 2007. In respect of that sentence his Honour imposed a non-parole period of three years expiring on 8 December 2005. 4 The drug in question is referred to as Ecstasy. The applicant, by his plea, accepted his guilt of the supply of not less than a large commercial quantity. A large commercial quantity of this drug consists of .5 of a kilogram or more. The quantity involved in this offence was 1016.6 grams, that is, more than twice the minimum for the attraction of the penalty appropriate for a large commercial quantity. 5 The notice of grounds of appeal asserted that at the hearing it was intended to rely only upon a ground that the sentencing judge erred in failing to discount the applicant's sentence as a consequence of the applicant's plea of guilty. The written submissions further asserted that, taking into account the applicant's plea, a lesser sentence was warranted in law and drew attention to sentences imposed on others for dealing in quantities of the same drug. 6 the submissions referred to Judicial Commission statistics, which, however, only dealt with some nine or ten cases. It appears that the applicant received a sentence less than the head sentence of some five of those offenders, but a sentence more than was received by four of the offenders. Similarly, the non-parole period passed upon the applicant was more than that received by some four of the offenders and less than that received by some five of the offenders. For myself, I find little assistance from the statistics. 7 It was contended in support of this additional ground that the applicant's lack of prior record, age of 52, status as a courier and having initially become involved on the basis that he was transporting herbs or Chinese medicines, mitigated in favour of his receipt of a sentence at the lower end of the range, rather than in the middle of what was said to be the asserted range. It was said that his Honour intended to impose a sentence which was at the lower end of the range. 8 In his remarks on sentence the trial judge commenced his observations with the words:- "Mr Lao, I feel that your case entitles you to a low sentence. With the amount of drug that was involved here I feel that the right sentence I should say is one of five years imprisonment which for special circumstances I will divide into a non parole period of three years and an additional term of two." 9 His Honour then said: "These are my reasons" and turned to give detailed reasons for the conclusions that he had expressed in the first paragraph of his remarks. I will return to his Honour's specific findings later in this judgment. 10 For consideration of the first ground, the history of how the plea came to be entered bears some examination. 11 His Honour sentenced the application on 9 December 2002 in consequence of a plea originally entered at the Liverpool Local Court on 11 September 2002. The matter came before the District Court on 5 December 2002. When the applicant was giving evidence on that day it appeared that a language difficulty had arisen, it being one to which the Vietnamese interpreter then engaged referred, when she said that it would be better if the witness had a Cantonese interpreter. The matter was of some seriousness, as it turned on whether or not the applicant had believed that what he was transporting to Sydney from Melbourne was herbal medicine or an illegal drug. 12 The trial judge became concerned that the applicant was asserting that he did not have the relevant intention to be liable for the offence to which he was pleading guilty. After taking further evidence on 6 December 2002, his Honour ascertained that the applicant wished to adhere to his plea of guilty of his own free will, and clarified the applicant's answers. His Honour referred to these circumstances in the judgment he published that day. 13 His Honour concluded that the evidence given before him that day, culminating in an assertion by the applicant of his understanding of the nature of his position after full and careful explanation by his barrister, through a Cantonese interpreter, was such that his Honour could be assured that the plea should be accepted and proceeded to sentence on that basis. 14 When his Honour came to deliver the detailed reasons for the sentence he had expressed as appropriate, in his remarks on sentence he recorded that he had come to the view that he should sentence on his assessment of the applicant as a somewhat friendly and gentle natured person, who was not "positively dissembling in the witness box and using his inscrutability to cover up dissembling". His Honour had expressed the view that:- "It is a simple fact that persons of his culture are much more inscrutable than the familiar Anglo Saxon culture which makes it difficult for an Anglo Saxon judge in making determinations of demeanour." 15 His Honour found favourably for the applicant in respect of all matters on which the applicant's credibility might have been taken in his favour into account. His Honour concluded that he should sentence on the factual material put forward by the applicant, and summarised by the applicant's counsel. He concluded that the applicant was not an associate of the criminal element, but a person who had been afflicted with a gambling problem, though otherwise a person of good character and it was this which caused him, as a consequence, to become a target for a criminal looking for a courier. 16 His Honour accepted that man told the applicant the parcel he would be asked to bring to Sydney for $2,000 contained a Chinese herbal medicine, albeit his Honour accepted that the applicant believed there was some illegality, perhaps concerning tax, attached to what he had been asked to do. His Honour accepted the applicant's contention that it was only on receipt of the drug in Melbourne that he became conscious of the fact that it was not just a tax offence that was involved, although, at this point, the applicant believed only it was extremely unlikely it was simply Chinese medicine that he was carrying but, rather, it was likely to be illegal drugs. 17 Having already received the drugs, the applicant carried on with the transaction, notwithstanding he now knew the true nature of the mission that had been entrusted to him. He did this because he believed he was dealing with criminals much more serious than "those which he until then believed was the case". He had, by this time, been paid the money. 18 His Honour accepted that he was a mere courier and one whose original intention had nothing to do with being a courier of illegal drugs, granted that he knew that there was some lower level of criminality involved with what he thought was doing. His Honour accepted the applicant's strong subjective case. He rejected that greed was the appropriate description of the reason for the applicant so conducting himself. 19 The applicant was anxious, his Honour found, to provide properly for his new wife and her children, short of cash, and accepted this offer as a means of providing for them. His Honour properly rejected that the hardship to his family was such as to make this that exceptional case in which, for that reason, the court would abstain from passing a sentence of full time imprisonment. 20 His Honour accepted that there were strong prospects of complete rehabilitation, special circumstances which mitigated in favour of a shorter non-parole period than otherwise provided for, and that incarceration would be more onerous in his case. 21 After an extensive review of authority concerning sentences passed in respect of drugs and, in particular, sentences passed in respect of heroin or MDMA, his Honour concluded the sentence to which I have already referred should be passed. 22 At no point in his Honour's remarks on sentence did his Honour refer to the timing of the plea of guilty, its utilitarian value or its evidentiary value as tending to establish remorse or contrition. He did not, as he was required to do by the decision of this court in Regina v. Thomson & Houlton (2000) 49 NSWLR 383 at paragraph 160:- "... explicitly state that the plea of guilty has been taken into account". 23 In that decision, it was pointed out that a failure so to explicitly indicate will generally be taken to indicate the plea was not given weight. In that decision, particular encouragement was given to the quantification, now usually on a percentage basis, of the utilitarian value of the plea. There was here no such quantification. In the absence of quantification and the absence of specific mention that the plea was taken into account, notwithstanding that his Honour was patently, as his earlier judgment concerning the nature of the plea establishes, aware of the early plea, I am of the view that his Honour fell into error. 24 In those circumstances it would be open to this court to find that the plea had not been given proper weight and on that basis it would be open to this court to reconsider the sentence passed. However, when I have regard to the quantity of drugs involved, notwithstanding the favourable circumstances found by his Honour, and I have regard to the applicant's role in the offence as transmitting between States substantial quantities of drugs, which it must have been apparent to the applicant, not only from their quantity, but from his recruitment, were intended for illegal marketing, I am unable to be persuaded that on that basis some lesser sentence was intended by his Honour or warranted in law and should have been passed. 25 Particularly since there is a lack of sufficient number of such decisions to be found reported, or reflected in the statistics, as to indicate some sort of general tariff range, so as to enable one to ascertain whether, as it was contended to be, this sentence was so high as to show that the plea had not been properly taken into account. 26 In connection with the second ground, it was also asserted that his Honour had erred in law by failing to determine an appropriate range of sentence within which this sentence should be placed, such as to enable his Honour's intention that it should be a low sentence to be carried into effect. 27 For myself, I am unable to see that for this criminality either the head sentence or the non-parole period is at all inappropriate, even given the subjective circumstances. 28 I conclude from the passing of a sentence so low that his Honour's neglect to mention the early plea is to be explained on the basis that his Honour must have taken that matter and all the other favourable circumstances into account, and reached a general conclusion on subjective matters, considering them in their totality. 29 Omitting to deal with the plea expressly is, as I have said, an error, but persuaded as I am of the appropriateness of this sentence, and persuaded, as I am, that the plea must have been taken into account by his Honour in reaching the sentence that he did, and persuaded, as I am, even in the context of the omission that this sentence is not such that one could say, even having regard to his Honour's expression of his intention to pass a light sentence, it is out of accord with being below an appropriate range, I have come to the conclusion that the appeal should be dismissed. 30 Since the application for leave has been fully argued, in my view, leave should be granted but the court should order that the appeal be dismissed. 31 SPIGELMAN, CJ: In my view, given the seriousness of the offence, the quantity involved, and the subjective considerations, his Honour did in fact carry into effect his expressed intention to sentence at the lower end of the applicable range. 32 What is an available "range" is sometimes not accurately stated, when reference is made to Judicial Commission statistics. The statistics of the Judicial Commission do not show a range appropriate for a particular offence. 33 This court is concerned to determine the appropriate range for the particular offence. The Judicial Commission statistics do not indicate that range. They reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics. 34 Those statistics will be available to be aggregated by certain categories, such as, in this case, the age of the offender. However, that capacity reflects only some of the wide variety of relevant considerations that must be taken into account. 35 I agree with the orders proposed by Justice Greg James. 36 O'KEEFE, J: I agree with the orders proposed by Justice Greg James. I adopt the analysis of the facts referred to and adopt the remarks of the Chief Justice. 37 SPIGELMAN, CJ: The order of the court is leave to appeal granted but the appeal is dismissed. **********