Regina v Michael HUANG [2005] NSWCCA 244

New South Wales Court of Criminal Appeal

CITATION: Regina v Michael HUANG [2005] NSWCCA 244

HEARING DATE(S): 22 June 2005

JUDGMENT DATE: 22 June 2005

JUDGMENT OF: Spigelman CJ at 1 & 33; Hunt AJA at 31; Howie J at 32

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - Where Accused leads new evidence to displace the finding of Trial Judge - CRIMINAL LAW - SENTENCE APPEAL - Subjective Circumstances - Where accused addicted to drugs from an early age - Where accused avoided rehabilitation - CRIMINAL LAW - SENTENCE APPEAL - Whether sentence manifestly excessive - CRIMINAL LAW- SENTENCE APPEAL - Special Circumstances - Need for supervision - Where accused has made unsuccessful attempts at drug-rehabilitation.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985: s25A(1)

CASES CITED: R v Henry (1999) 46 NSWLR 346

Michael HUANG (Applicant) PARTIES: Regina (Respondent)

FILE NUMBER(S): CCA CCA 2005/73

M Dennis (Applicant) COUNSEL: J Bennett SC (Respondent)

Mark Klees & Associates (Applicant) SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3344

LOWER COURT JUDICIAL OFFICER: Marien DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/73

SPIGELMAN CJ HUNT AJA HOWIE J

Wednesday 22 June 2005 REGINA v Michael HUANG Judgment 1 SPIGELMAN CJ. The Applicant seeks leave to appeal from a sentence imposed by Marien DCJ. The Applicant pleaded guilty to the offence of supplying prohibited drugs, namely heroin, on an ongoing basis which is an offence pursuant to s25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 3,500 penalty units or imprisonment for 20 years. His Honour imposed a sentence of five years with a non-parole period of three years and six months. 2 Save in one respect to which I will refer, there is no contest about his Honour's findings of fact. His Honour, of course, sentenced both the Applicant and his mother Anh Thi Huang. His Honour found: "… on 15 May 2003 police applied for and were granted a controlled operation authority, and that on 28 May 2003 police commenced a controlled operation on premises at 31 Prairevale Road, Bossley Park. On a number of days between 28 May 2003 and 4 June 2003 undercover police officers visited those premises and were supplied with a quantity of heroin, either by the offender Anh Thi Huang or by the offender, Michael Huang. With respect to the offender, Anh Thi Huang, she supplied to an undercover police officer on 28 May 2003 two caps of heroin in return for $100 which was handed over by the undercover officer. The total quantity of heroin supplied on that day was 0.30 grams. A further supply on the same day, later in the day, was made by the offender, Anh Thi Huang to another undercover police officer. That supply consisted of two caps of heroin totalling 0.29 grams and that quantity was supplied in exchange for $100. On the following day 29 May 2003 the offender, Anh Thi Huang made a further supply of one cap of heroin weighing 0.15 grams to another undercover police officer. In exchange for that supply of heroin the undercover police officer handed over to the Offender $50. With respect to the offender, Michael Huang, an undercover police officer was supplied by that offender with two caps of heroin on 3 June 2003. The undercover police officer handed over $100 in exchange for that heroin. On the same day and later on that day, the offender, Michael Huang supplied a further quantity of heroin, namely two caps to another undercover officer in exchange for $100. The total quantity of the four caps of heroin which were supplied on 3 June 2003 by Michael Huang was 0.45 grams. On 4 June 2003 the offender, Michael Huang supplied a further quantity of heroin to the same undercover officer that he supplied on 3 June 2003. The quantity supplied on this day was one cap of heroin weighing 0.10 grams and that quantity was handed over to the undercover officer in exchange for $50. The premises at 52 Prairevale Road, Bossley Park was observed by police to be a single storey brick premises with each of the external windows of the premises secured by solid one centimetre solid bars. Each of the doors of the premises were secured by three reinforced deadlocks contained in a solid metal door jamb. Each door was secured by a metal security grill. Located within the rear security door was a hole which had been cut from the security grill measuring approximately five centimetres by ten centimetres. Each of the undercover officers who were supplied with heroin by the Offenders was supplied the heroin through that hole in the rear security door. Police also observed a video security camera positioned on the underside of the roof angled down the driveway. The security camera was found to be affixed to a monitor within the lounge room of the premises. About 6.30am on Thursday 5 June 2003 police executed a search warrant under the Drug House legislation. The premises were then occupied by the Offenders. Initially the Offenders refused to open the premises, thus resulting in the use of force by police to make entry. During a search of the premises police located a number of pieces of silver foil which were identical to that used to wrap the heroin which was the subject of the supplies to the undercover officers. Police also located a set of electronic scales with heroin residue and a number of glass heroin smoking pipes." 3 His Honour made the following finding which is of some significance in the light of the additional evidence adduced on the appeal: "… each of the offenders was engaged in the conduct of a highly organised and ongoing heroin distribution business from the premises where they both lived. The premises were fortified with metal bars over the windows, multiple deadlocks on external doors together with security metal grills. As I said earlier, a hole had been cut from the security grill in the rear security door through which heroin was handed to customers usually in foils. A video security camera on the roof angled down the driveway was connected to a monitor in the lounge room. In my view the level of involvement of the offenders in drug trafficking should properly be seen as being something more culpable than the level of those who carry out functions which have been described in some of the cases concerning this provision as 'runners' of drugs. Each of the offenders maintained fortified premises for the specific purpose of selling heroin to apparently anyone who came to the back door." 4 His Honour set out the subjective circumstances of the Applicant at some length. It is unnecessary to repeat the detail. Of particular significance is the finding that the Applicant commenced taking drugs at an early age. Supported in particular by his father, the Applicant has made several unsuccessful attempts to cease his drug-taking. 5 His Honour noted that at the time of the offence the Applicant was subject to a number of good behaviour bonds with respect to non-drug related offences. His Honour took this into account as an aggravating character. 6 His Honour referred to the Applicant's plea of guilty, although indicating that it was not taken at the first reasonable opportunity. He indicated that he would apply a reduction for the utilitarian value of the plea of fifteen percent. 7 His Honour also accepted that the Applicant's expressions of remorse and contrition were genuine. 8 His Honour concluded that the Applicant and his mother were "willingly involved in a highly planned and organised enterprise of heroin distribution." 9 His Honour emphasised the seriousness with which the legislature, the courts and the community treat crimes of this character. 10 His Honour said: "… his involvement in the offence was related in some degree to his long standing addiction to heroin. However, that addiction cannot in the circumstances of this case be regarded as in any way mitigating his criminality. … his criminal acts cannot be characterised as impetuous or spontaneous transgressions of the law. They were criminal acts committed in the context of a well planned and highly organised drug distribution business." 11 His Honour also said: "… the objective criminality of his offence is of a very high order. It is tragic indeed that a young man has been in the grips of heroin addiction from the age of thirteen or fourteen, and that that addiction resulted in him joining into an enterprise with his own mother and his sister in the distribution and dissemination of heroin. The fact that this enterprise was clearly organised and well planned in my views places the objective seriousness of the offence as being high. I take into account as I have already said, that he does not have the benefit of coming to this court with prior good character. And in particular the serious aggravating factor that this offence was committed whilst he was on conditional liberty. In my view a custodial sentence must be imposed upon him and it must be served on a full-time basis. However, I do find that there are special circumstances justifying the variation of the statutory ratio with respect to his sentence. In particular, that this sentence will effectively be his first sentence of imprisonment and also, I take into account his age. I must acknowledge from his age alone, that there are prospects of rehabilitation, although sadly every opportunity that has been put in his path and every attempt he has made at rehabilitation in the past has failed, but his very age must justify a finding that there is still some prospects of rehabilitation." 12 As noted above his Honour made findings of fact with respect to the degree to which the premises had been fortified. The Court received additional evidence, subject to cross-examination. The Court does not find it necessary to ask the Crown to cross-examine. 13 Counsel for the Applicant at the trial indicated that he had not been aware, prior to the sentence, that the iron bars present on part of the house had been there for years. The solicitor who appeared for the Applicant at the trial said that he had been told that the video camera was not working at the time of the offence and "had not been working for many years prior to that", and that the metal door had been in place for more than ten years. Both counsel and solicitor indicated that this information came to their attention after the sentence proceedings. 14 The Court also received an affidavit from the Applicant's father. He indicated he had not advised the legal representatives of the Applicant of certain matters until after the sentence proceedings, because he was not aware of the importance of these matters for the purpose of the sentencing exercise. 15 The Applicant's father said that the metal door at the entrance of the house had been fixed to the house since the time the family moved into the residence in 1984. He said that the metal door at the back of the premises and metal bars on the windows had been fixed by himself in 1988. 16 The father also gave evidence the camera had been installed a week after an attempted break, enter and steal into the house, some ten months prior to the offence. He said that it was installed for the purpose of scaring intruders and that it was not working at the time of the offence. 17 It is not relevant for present purposes to determine whether or not this was fresh evidence of a character that may be allowed on an appeal. The Court has proceeded on the basis of the evidence as read. 18 As quoted above, His Honour did draw attention to the degree of fortification of the premises and the video security camera as matters relevant to his Honour's conclusion that what was involved was "a highly organised and on-going heroin distribution business". However such a conclusion was also based on other matters, including the whole of the system for distribution revealed by the purchases that were actually made. 19 In my opinion the time at which the elements of fortification were placed on the premises is of little, if any, import. Whilst they may have served the function of securing the premises for purposes other than the drug supply business, they were also capable of being turned to account for that purpose and were so employed. 20 I note in particular that no evidence has been given by the father as to when the hole had been cut into the security grille in the rear security door which was an important distribution point. Two of the three acts of supply of heroin by the Applicant to undercover police occurred by the money and heroin being passed through the hole in the door. On the third occasion the Applicant opened the door. It was not suggested that this particular opening served any purpose other than the purpose of the distribution of heroin. This too indicates the extent to which the fortification, even if pre-existing the commencement of heroin distribution, was in fact redirected for use for the illicit purpose. 21 The additional evidence produced in this Court is not of such a nature as would lead me to doubt His Honour's critical conclusion that he was sentencing an applicant who participated in a "highly organised and on-going heroin distribution business". Even if the security elements in the house had been originally placed there for other purposes, they had been turned to account for the illicit purpose. I do not believe the additional evidence has any significant effect on his Honour's assessment of the objective seriousness of the offence. 22 Counsel for the Applicant referred to His Honour's observation to the effect that the Applicant's addiction "cannot in the circumstances of this case be regarded as in any way mitigating his criminality". Counsel drew attention to the observations of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at 397 [273] where his Honour indicated that addiction may be relevant as a subjective circumstance where it occurred at a very young age and therefore suggested, "that the addiction was not a matter of personal choice". 23 That factor was, in the light of the subsequent events, not entitled to material weight in the sentencing exercise before Marien DCJ. The original addiction had occurred some ten years before and, notwithstanding a number of attempts, the Applicant had not succeeded in overcoming it. This included one occasion on which he was taken to a drug rehabilitation centre by his father who wished to enrol him in a 12 month residential programme. On the father's evidence before the sentencing judge, the Applicant had refused because he said: "He wanted his freedom". 24 In the full range of these circumstances which His Honour was referring to in the passage in the judgment relied upon by the Applicant, the origins of the addiction at an early age was not a subjective circumstance to be given material weight. 25 The Applicant submits that the sentence was manifestly excessive. Attention is directed to a number of other cases in which there was imposed non-parole periods of two years or thereabouts, with total terms of four years or thereabouts. The circumstances of those offences vary considerably. Nothing like a sentencing pattern has been identified. 26 The offence was a serious one. The Applicant's participation in it was part of an ongoing heroin distribution business which he conducted with other members of his family. (I note that there was evidence before the sentencing judge of an act of distribution from the premises by the Applicant's older sister, although there is no information that any charge was lain in this respect.) General and personal deterrence was entitled to considerable weight. 27 In my opinion the sentence imposed, both in terms of the non-parole period and the full term, was well within the scope of the exercise of the sentencing discretion. 28 His Honour made a finding of special circumstances. The Applicant contends that this finding was not accurately reflected in a non-parole period. It was submitted that the parole period of 18 months did not give proper weight to the need for a lengthy period of supervision. The Applicant has made unsuccessful attempts at rehabilitation and would need a lengthier period of supervision to ensure progress in his rehabilitation. 29 The degree to which the sentencing judge varied the statutory ratio was well within the exercise of his discretion. There was no proper basis to even consider any intervention with this aspect of his Honour's decision. Given the discretionary nature of this decision this ground is frankly unarguable, as it almost always is. 30 Leave to appeal should be granted but the appeal dismissed. 31 HUNT AJA: I agree. 32 HOWIE J: I agree. 33 SPIGELMAN CJ: The orders of the Court are as I have indicated. **********