New South Wales Court of Criminal Appeal Regina v Dang [2005] NSWCCA 430 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 28/11/2005 JUDGMENT DATE: 14 December 2005 JUDGMENT OF: Studdert J at 1; Whealy J at 2; Howie J at 3 DECISION: Appeal is allowed, the sentence imposed in the District Court quashed and the Respondent is sentenced to a non-parole period of imprisonment for 5 years to date drom 9 September 2004 and to expire on 8 September 2009. There is to be a balance of the term of 4 years to expire on 8 September 2013. CATCHWORDS: Criminal Law - Crown appeal against sentence - supply commercial quantity of cocaine - relevance of standard non-parole period after plea of guilty - whether offence is mid range of seriousness - sentence manifestly inadequate - respondent resentenced. Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 25(2) LEGISLATION CITED: Criminal Procedure Act 1986 Crimes (Sentencing Procedure) Act 1999 - ss 10, 21A(2)(j), 54B, Div 1A Pt 1 R v Way (2004) 60 NSWLR 168 R v AJP (2004) 150 A Crim R 575 R v Mills [2005] NSWCCA 175 CASES CITED: R v Shi [2004] NSWCCA 135 R v Nai Poon (2003) 56 NSWLR 284 R v Neale (2004) 148 A Crim R 493 Wong v The Queen (2001) 207 CLR 584 PARTIES: Regina v Ngoc Hiep Dang FILE NUMBER(S): CCA 2005/1346 W. Dawe SC - Crown COUNSEL: T. Game SC - Respondent S. Kavanagh - Crown SOLICITORS: Kings Lawyers - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/02113 LOWER COURT JUDICIAL OFFICER: Sorby DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1346 STUDDERT J WHEALY J HOWIE J WEDNESDAY 14 DECEMBER 2005 R v Ngoc Hiep DANG 1 STUDDERT J: I agree with Howie J. 2 WHEALY J: I agree with the reasons of Howie J and the orders that he proposes. 3 HOWIE J: The respondent to this Crown appeal under s 5D of the Criminal Appeal Act pleaded guilty before a magistrate to an offence of supplying not less than the commercial quantity of a prohibited drug, being cocaine. This is an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act. It carries relevantly a maximum penalty of imprisonment for 20 years. The respondent was committed to the District Court for sentence. 4 On 26 May 2005, because of some deficiency in the committal document, the respondent was arraigned on that charge before Judge Sorby (the Judge) and pleaded guilty. He also asked the Judge to take into account an offence of possessing a prohibited drug on a Form 1 under the provisions of the Criminal Procedure Act. On 20 June 2005 the Judge sentenced the applicant to a term of imprisonment consisting of a non-parole period of 4 years and a balance of the term of 2 years 6 months. The non-parole period is to expire on 8 September 2008. The Crown appealed against this sentence by notice dated 19 July 2005. 5 The facts can be adequately stated from the statement of facts tendered by the Crown and adopted by the Judge in his sentencing remarks: On 6, 7 and 9 September 2004, Ngoc Hiep Dang spoke, by telephone, with a supplier and a buyer in relation to the supply of a prohibited drug. These calls were intercepted by police pursuant to telephone intercept warrants. After reviewing the calls, the police placed Dang under surveillance. At about 1.20pm on 9 September 2004, police were in the vicinity of Park Avenue in Burwood conducting covert surveillance on Dang. At this time, Dang was sitting in his Honda Accord motor car, registration number AFW-08G. At about 1.35pm, after a short meeting with an unknown man, Dang started his car and then drove to a unit complex at Bayside Terrace in Cabarita. The police kept Dang under surveillance and followed him. Shortly before 1.55pm, Dang arrived at Bayside Terrace. He got out of his car and began to walk towards the entrance to a block of units at 27-36/1 Bayside Terrace. He was carrying a red "Nike" brand shopping bag. As Dang walked towards the entrance, Detective Inspector Chapman of the South-East Asian Crime Squad approached Dang and introduced himself as a police officer. Dang was told that the shopping bag was believed to contain prohibited drugs. Dang agreed to let Detective Chapman look in the shopping bag. The shopping bag contained a cardboard box. The cardboard box was wrapped in a transparent plastic bag. A block of compressed powder was inside the cardboard box. The compressed powder was cocaine. The cocaine weighed 983 grams and had a purity of 82.5%. Dang was placed under arrest and Detective Chapman radioed for assistance. A short time later, other investigating police arrived at Bayside Terrace. Dang was cautioned and was then searched by police. In Dang's front left trouser pocket, police located a mobile phone. The phone was one of the phones that the police were monitoring pursuant to a telephone interception warrant. Dang's car was also searched by police. In the "map recess" on the driver's door, police located a piece of cellophane containing 1.67 grams of methylamphetamine. Dang was then conveyed to the Burwood Police Station. At the police station, Dang declined to participate in an electronically recorded interview with the police. He was later charged in relation to this matter. 6 The applicant told both a probation officer and a psychologist that he was simply acting as a deliveryman. However, the Judge made the following findings: The police evidence of the telephone calls indicate(s) to me, that the prisoner's role was more than that of a mere courier. He contacted both the supplier and the buyer. He was directly involved in the dissemination of drugs, and a large amount of high quality illegal drugs into the community, in my opinion, based upon the material before me. 7 The Judge noted that the amount of drug supplied was almost four times the prescribed commercial quantity. The Judge also noted that it was of very high purity, being 82.5 per cent pure. The Judge stated: The possession of such a quantity, with such a quality, for supply is objectively very serious and the community expects condign punishment to be meted out in such cases. 8 The respondent was aged 24 years at the time of the offence. He was born in Vietnam and he came to Australia with his family in 1989. He obtained the Higher School Certificate and completed a Diploma in Information Technology at TAFE. He gained employment as a computer technician but was dismissed in relation to a computer stolen from his employer. He was charged with receiving the computer and on 23 April 2003 placed on a bond under s 10 of the Crimes (Sentencing Procedure) Act by the Local Court. The period of the bond was two years and, therefore, was current at the time of the commission of the offence for which he was sentenced in the District Court. The Judge recognised that it was an aggravating factor of the offence that he was on conditional liberty at the time of its commission: see s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. 9 The respondent told a psychologist, who prepared a report for the sentencing court, that losing his job was a devastating experience for him in light of his subsequent inability to secure further employment in the industry. He said that he became "increasingly depressed, demoralised and anxious". At about this time the respondent's partner became pregnant and he and his partner returned to live with his parents. This further added to his depression and humiliation. The psychologist stated that it was in the context of this history and "his attendant psychological vulnerability" that the respondent became involved in the offence for which he was before the court. 10 The applicant told the probation officer that he commenced using ecstasy at the age of 18 on a recreational basis. He commenced using cocaine about 6 months before the commission of the offence and was using up to two grammes a day at the time of his arrest. The psychologist was of the opinion that the use of the drug would have impacted upon his capacity to reason at the time. The respondent told a probation officer that he was offered money and drugs for his involvement in the offence but that he was not fully aware of the repercussions of his actions or the seriousness of his involvement. 11 At the time of the offending the respondent was no longer in a relationship with the mother of his child. At the sentencing proceedings evidence was given by his then current girlfriend as to the support that the respondent enjoyed from his family. She also stated that after his arrest the respondent was "wiser" and that he was "sorry for breaking the law and especially for putting his family in distress, especially his parents". She gave evidence that work would be available for the respondent on his release. 12 The psychologist reported that the respondent appeared to be "more insightful to his problems and at examination expressed considerable remorse for his behaviour" which remorse the psychologist believed to be genuine. He thought that with appropriate support and treatment "the prognosis is very positive". 13 The Judge stated that the variation in the statutory ratio between the non-parole period and the balance of the term in the sentence he imposed "reflects the requirement that the prisoner undergo appropriate rehabilitation, which I find to be a special circumstance". 14 The substantial basis of the Crown appeal is that the Judge failed to properly apply s 54B of the Crimes (Sentencing Procedure) Act as it has been interpreted by this Court in R v Way (2004) 60 NSWLR 168 and subsequent cases. In particular the Crown stressed that these decisions recognise that the standard non-parole period prescribed for a certain class of an offence has a significance as a reference point, bench mark or guide post to the appropriate sentence even though there may be reasons for the court to determine that some shorter sentence should be imposed: R v Way at [122]; R v AJP (2004) 150 A Crim R 575 at [13]. 15 The standard non-parole period prescribed for an offence with which the respondent was to be sentenced is 10 years imprisonment. The non-parole period imposed upon the respondent was imprisonment for 4 years. The Crown submits that, in light of the objective seriousness of the particular offence committed by the respondent, such a disparity between the standard non-parole period and the non-parole period imposed would be itself indicative of error. But the Crown submits there was patent error to be found in the way that the judge sought to apply the principles enunciated in Way. 16 The Judge referred to the fact that a standard non-parole period of 10 years was prescribed for the offence under Division 1A of Part 1 of the Crimes (Sentencing Procedure) Act and then stated: On the basis of the authorities of R v Way and R v Blair the standard non-parole period is not a mandatory figure for which a sentencing judge must not depart. How the Division is to be applied by the sentencing judge that (sic) was set out in R v Way as follows: 'In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period'" That question will be answered by considering: (i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).' Having viewed all the circumstances of the offence referred to above and contained in the material before me, I have reached the conclusion that the offence, as serious as it is, falls into the mid range of seriousness for an offence of the relevant kind and therefore I do not intend to impose a standard non-parole period. 17 With respect to the Judge it is difficult to make sense of the last paragraph of that passage as it has been transcribed. If the Judge found that the offence was in the mid range of seriousness, it would not follow that he would not impose a standard non-parole period. Rather he should impose the standard non-parole period unless there was a reason to impose a lesser or longer sentence: see s 58B(2). Section 58B(4) requires the court to record its reasons for not imposing the standard non-parole period. In the present case one reason might have been that the respondent pleaded guilty. But that would not be the end of the matter because the standard non-parole period would still have some work to do as an indication of what the appropriate sentence should be even though the court had found a reason to depart from that standard non-parole period. This is the error relied upon by the Crown in the Judge's approach to determining the respondent's sentence. 18 Mr Game SC, who appeared for the respondent, had a different explanation for what the Judge intended to indicate in this paragraph. He submitted that it should be read on the basis that, although the Judge found that the offence was in the mid range of seriousness, he did not intend to impose the standard non-parole period because the respondent had pleaded guilty. Mr Game referred to portions of the transcript where the Crown conceded that the Judge could depart from the standard non-parole because the respondent had pleaded guilty. In making this submission, of course, Mr Game accepted that it was open to the Judge to find that the offence fell within the mid range of seriousness. To some extent that was a submission against his client's interest because it makes the disparity between the standard non-parole period and the non-parole imposed even more stark. 19 However, Mr Game submitted that, if the Judge applied a reduction of 25 per cent from the standard non-parole period by reason of the plea and then reduced the sentence further by the subjective features of the respondent, a non-parole period of 4 years, while at the very bottom of the range, could not be said to be so inadequate as to justify the intervention of this Court. 20 It is difficult to try to reconstruct the Judge's actual reasoning from the sentencing remarks. I do not find Mr Game's attempt to be satisfactory, particularly when it accepts a finding against the interest of the respondent. It seems to me more likely that what the Judge meant to say, or what he said that was erroneously transcribed, was that, notwithstanding the seriousness of the particular offence, it did not fall into the mid range of seriousness of an offence of that kind and, therefore, he did not intend to impose the standard non-parole period. The apparent reason for departing from the standard non-parole period was that the offence fell outside the mid range of seriousness: Way at [67]. This is the way I believe the remarks should be interpreted for the purpose of this appeal. 21 However, the Judge did not indicate why it was that he came to that view of the seriousness of the offence. In R v Mills [2005] NSWCCA 175 there was a Crown appeal against a sentence in respect of an offence for which a standard non-parole period was prescribed of 5 years. In departing from the standard non-parole period, the sentencing judge gave the following reasons: "The standard non-parole sentence is five years. I consider in the circumstances of this case and taking into account the submissions of counsel, that it is appropriate that the sentence to be imposed be less than the standard non-parole term. That is the view of the Court in relation to each of the counts." Wood CJ at CL, with whom the other members of the Court agreed, held: 49 I do not consider that this was a sufficient compliance with the requirements of s 54B(4) A mere statement of the conclusion, accompanied by a confirmation that the submissions of counsel, and the circumstances of the case, have been taken into account, does not constitute an identification of the reasons which are expected in a case which falls within the umbrella of the Division. As is also the case in relation to s 21A of the Act, more is expected than mere lip service to the legislation. What is required is a clear identification of the relevant factors, the weight given to them, and their role in the structuring of the sentencing order: see R v Walker [2005] NSWCCA 109. 50 The present case, it may be accepted, was one involving pleas of guilty, so that the role of the standard non-parole period was as a reference or check point: R v Way [2004] 60 NSWLR 168. That circumstance does not however lessen the obligation to give adequate reasons in relation to this aspect of sentencing. 51 The absence of sufficient reasons does not necessarily guarantee intervention by this Court. Whether it should do so, in this case, depends upon the remaining grounds. 22 Whether a sentence falls within the mid-range of seriousness of an offence of a particular kind is a matter of judgment on which minds might reasonably differ. To succeed on an appeal, the appellant or the Crown would have to show that it was not open for the sentencing judge to make the finding that he or she did in the particular case. Where, as here, the sentencing judge does not indicate the factors taken into account in making the determination of where the offence stands in relation to an offence falling within the mid range of seriousness this Court might be more willing to find error if it disagrees with the finding made by the sentencing judge. 23 The manner in which a court is to determine whether an offence falls within the mid range of seriousness and the relevant factors to be taken into account were extensively discussed and analysed in Way. They were summarised by Simpson J in AJP at [13]. Included in that summary are the following points (the paragraph numbers cited refer to relevant portions of the judgment in Way): "(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86])" 24 Clearly there will be a range of factors that are relevant to a determination of whether an offence of supplying a prohibited drug falls within the mid-range of seriousness. The amount and purity of the drug will be significant matters but they are not decisive: Way at [159]. The number of occasions on which the drug was supplied, the motivation for the supply, the planning involved and the role of the offender in the supply are obviously relevant matters. In R v Shi [2004] NSWCCA 135 at [35], [37-38] Wood CJ at CL stated: 35 As was decided in Regina v Way the determination of the objective seriousness of the offence before the Court is not confined to a consideration of the circumstances which are specifically listed in s 21A(2) and (3). The motive of an offender, or any condition which affects the offender's state of mind which impinges upon the elements comprised within the mens rea is of relevance, although less so in the case of any condition which is self induced through abuse of alcohol or drugs. 37 I am satisfied, applying the approach that was found to be appropriate in Regina v Way that error was shown. The offence involved in this case was a serious offence, having regard to the weight and the purity of the drugs involved, and also to the fact that the respondent knowingly, and with his eyes open, lent his aid to those who directed the supply network, in order to feed his habit, and in order to clear a debt. 38 Clearly the case fell well below the middle range of seriousness, since the respondent was not a principal, and was not shown to have been engaged in the work of a courier on more than one occasion. There is also the fact that his supplier had taken advantage of him. 25 Shi was a case where the respondent had been found in possession of 992.2 g of methylamphetamine of an 84.5 per cent purity. The sentencing judge found that he was a runner or courier at the very bottom of the supply hierarchy. He was vulnerable because of his age, background and drug addiction. His vulnerability had been preyed upon by older men in the organisation but he had not been a mere dupe. Although the supply was planned, the respondent was not part of the actual planning or organisation and he was not profiting except to feed his addiction. 26 The Court in Shi upheld a Crown appeal in respect of a sentence of 4 years with a non-parole period of two years and substituted a sentence of 6 years with a non-parole period of 3 years. The Court gave as reasons for departing from the standard non-parole period the following circumstances: (a) notwithstanding the substantial quantity and level of purity of the drug involved, the fact that it was committed without regard to public safety, and the additional fact that it was part of an organised criminal activity, the respondent's role was that of a runner or courier, who became involved in a circumstance where he had been preyed upon by older men, and at a time when he had been vulnerable (by reason of his age and background), with the consequence that the offence fell below the mid level of seriousness. (b) he had pleaded guilty at the first available opportunity; (c) he had no prior convictions and was of prior good character; (d) he had good prospects of rehabilitation; (e) he had shown genuine remorse; (f) he had not fully analysed his position; and (g) he was relatively young and would be experiencing a first term of imprisonment. 27 At least two of the errors identified by the Court in Shi also appear to me to have occurred in the sentencing of the respondent. Firstly the Judge appears to have thought, contrary to Way, that the standard non-parole period applied regardless of whether the offender was convicted after a plea of guilty or after trial. Secondly the Judge appears to have thought that it was unnecessary to have any further regard to the standard non-parole once he had determined that the offence fell outside the mid range of seriousness. 28 The Crown has argued its case on the basis that his Honour assessed the objective criminality of the offence as being within the mid range of seriousness. It has contended that, given the amount and purity of the drug and the fact that he was more than a courier, the Judge should have considered that the offence was above the mid range of seriousness. The first submission is in my view based on a misinterpretation of a transcription error of what the Judge said or meant to say. The second submission in my view is unsupportable and places too much weight on the amount and purity of the drug. It is inconsistent with the finding in Shi. 29 The Crown placed considerable emphasis in its submissions on the fact that the drug in the present case was cocaine whereas the drug in Shi was amphetamine and, therefore, the present was a more serious offence by reason of the nature of the drug being supplied. However, I note that there was no suggestion in Shi that one of the matters that took the offence below the mid range of seriousness was that the drug supplied was amphetamine. This Court no longer approaches the evaluation of the seriousness of a particular supply offence by distinguishing between different types of drugs according to the perceived dangerousness of the drug being supplied. Rather the Court has stressed that the appropriate consideration is the relevant statutory regime and the maximum penalty prescribed for the offence: R v Nai Poon (2003) 56 NSWLR 284; R v Neale (2004) 148 A Crim R 493. The Drug Misuse and Trafficking Act does not distinguish in any way between cocaine and methylamphetamine: the maximum penalty for offences involving the two drugs is the same, as are the prescribed quantities. 30 In my opinion it was open for the Judge to find, as I believe he did, that the offence was one that fell below the mid range of seriousness for the offence of supply notwithstanding the amount and purity of the drug. Although the respondent was more than a courier and was involved to some degree in the actual planning of the offence, there was only a single instance of supply. Further, the applicant was motivated by his addiction to cocaine even though he had become addicted to the drug as a matter of choice. 31 In any event the Judge was entitled to depart from the standard non-parole period and impose a lesser sentence by reason of the fact that the respondent had pleaded guilty. The Judge was also entitled to take into account in determining the non-parole period that the respondent had only one matter on his criminal record, had shown remorse and that he had good prospects of rehabilitation. It was also his first time in prison. However, the offence was aggravated by the fact that the applicant was on conditional liberty at the time. 32 In my opinion a non-parole period of 4 years as against the standard non-parole period of 10 years is manifestly inadequate. Even though it was open to the Judge to find that the offence was not within the mid range of seriousness, it was not very far below that range given the seriousness of the applicant's conduct and the amount and purity of the drug involved. The applicant could not have been mistaken about the quantity or the quality of the drugs as he had organised the sale as a middleman between the supplier and the purchaser: cf Wong v The Queen (2001) 207 CLR 584 at 609. The applicant was going to receive both money and drugs as a result of the sale. Even though his judgment might have been clouded by his use of cocaine, that can have little mitigation of the objective seriousness of the offence because it was self-induced by his abuse of drugs. 33 I believe that the Judge could not have used the standard non-parole period as a guide or indicator to the sentence to be imposed and achieved the result that he did, even after taking into account the discount for the plea of guilty. In any event as against a maximum penalty of 20 years, a term of imprisonment totalling 6½ years is also manifestly inadequate. The Judge has either given insufficient weight to the seriousness of the offence or too much weight to the subjective factors favouring the respondent. In my view the least sentence the Judge could have imposed was a sentence totalling 9 years and the least non-parole period was 5½ years. 34 But this is a Crown appeal and, therefore, this Court has a discretion whether to intervene notwithstanding that error has been shown. One of the relevant matters to be taken into account is the notion of double jeopardy inherent in a Crown appeal. Generally speaking, if the Court decides it should intervene, it will impose a sentence at the lowest end of range available to the sentencing judge. 35 However, in the present case the Court has been made aware that, if the respondent were re-sentenced to a term that included a non-parole period of more than 5 years, his progress through classification would be retarded. He is currently classified as C1. In light of the fact that the respondent is a relatively young man who is apparently progressing well in custody, in my opinion the Court should not impose the sentence that ought to have been imposed by the sentencing judge but should reduce it to assist the respondent maintain his present classification. 36 The reasons for departing from the standard non-parole period are: (i) notwithstanding the amount and purity of the drug and that he was involved in planned criminal activity, the respondent was not a principal and had only been involved in a single supply as a result of his addiction to cocaine and, therefore, the offence fell below the mid range of seriousness; (ii) the applicant was on conditional liberty at the time; (iii) the respondent pleaded guilty at the first reasonable opportunity; (iv) the respondent was remorseful; (v) the respondent does not have any significant record of other offences; (vi) the respondent has good prospects of rehabilitation; (vii) the respondent is serving his first sentence in custody; (viii) the respondent's current prison classification. 37 I propose that the appeal be allowed, the sentence imposed in the District Court be quashed and the respondent sentenced to a non-parole period of imprisonment for 5 years to date from 9 September 2004 and to expire on 8 September 2009. There is to be a balance of the term of 4 years to expire on 8 September 2013. ********** 20/03/2006 - Edit Error - Paragraph(s) 29 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.