R v GIANG [2005] NSWCCA 387

New South Wales Court of Criminal Appeal

CITATION: R v GIANG [2005] NSWCCA 387

HEARING DATE(S): 10 November 2005

JUDGMENT DATE: 21 November 2005

JUDGMENT OF: Sully J at 1; Hulme J at 2; Latham J at 30

DECISION: Leave to appeal granted.; Appeal dismissed.

Regina PARTIES: Son Giang

FILE NUMBER(S): CCA 2005/1841

Crown: G Rowling COUNSEL: Applicant: J Manuell

Crown: S Kavanagh SOLICITORS: Applicant: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/183

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

- 9 - IN THE COURT OF CRIMINAL APPEAL 2005/1841

SULLY J HULME J LATHAM J

Monday 21 November 2005 REGINA v Son GIANG Judgment 1 SULLY J: I agree with Hulme J. 2 HULME J: On 17 March 2005 this Applicant for leave to appeal was sentenced by Judge Delaney to imprisonment for a non-parole period of 1 year and 9 months commencing on 3 August 2004, with a balance of term of 1 year and 6 months on a charge under s25A of the Drugs (Misuse and Trafficking) Act 1985 (NSW). That section makes it an offence to supply for reward, on 3 or more separate occasions during a period of 30 consecutive days, a prohibited drug other than cannabis. The maximum penalty of imprisonment prescribed is 20 years. 3 Two charges on a Form 1 were taken into account. One was of goods in custody and related to a sum of $100 found on the Applicant at the time of his arrest and the other, of possession of a prohibited drug, related to a cap of heroin found in the car he had been driving immediately prior to his arrest. That arrest occurred on 3 August 2004 and he has been in custody ever since. 4 The circumstances of offending proved were that the Applicant supplied, on each of 21, 28 and 29 July and 3 August 2004 a small foil package or balloon containing heroin in return for $50. The weights of heroin supplied varied between 0.14 and 0.2 grams. In each case the purchaser was a police officer who had made arrangements by phone to effect the purchase. A place and time was arranged and on each occasion the Applicant arrived in a motor vehicle and was approached by the police officer to whom he supplied the heroin. On the occasion of purchase on 21 July which occurred about 7.30 pm the undercover operative made remarks to the effect that the Applicant and the person in the car with him were not the person she had expected to see. The Applicant remarked, "Yeah, we're the arvo shift". 5 On the first, third and fourth of the occasions referred to in the immediately preceding paragraph, there was present in the passenger seat of the vehicle with the Applicant a person, Viet Phan. On one or two occasions the money was handed to Phan who passed it over to the Applicant and it was the latter who produced and handed over the heroin. There is no evidence to establish that Phan received any benefit from the transactions. Phan was charged with 3 offences of being knowingly concerned with the supply. 6 Phan had no record, was 22 at the time he was sentenced in May 2005, had some employment history and was regarded as capable of rehabilitation. On 2 charges he was sentenced to concurrent terms of 300 hours community service and on the third a 2 year bond under s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed. 7 Also charged with offences arising out of the same police operation as led to the Applicant's arrest was one Son Tran. He also was charged with an offence under s25A, the dates of his supply being 14, 15 and 28 July 2004. The circumstances of these occurrences were for all practical purposes the same as those involving the Applicant and the Facts Sheet in his case showed that he and the Applicant jointly effected the supply on 28 July. Mr Tran was a heroin addict, and had became involved to help pay off an indebtedness for heroin he had acquired on credit. Judge Armitage described this as containing and "element of compulsion falling short of duress" and imposed a sentence of imprisonment for a non-parole period of 12 months commencing on 25 June 2005 and a parole period of a further 12 months, directing that the sentence be served by way of periodic detention. In the course of arriving at this sentence, Judge Armitage remarked that the sentence which he would ordinarily have imposed was one of 3 years' imprisonment, a period he discounted by one third – twenty percent for an early plea and thirteen and one-third percent for remorse. 8 Mr Tran was 23 at the time of sentence. He had a criminal record for driving at an excessive speed and while suspended and also for driving whilst disqualified. The penalty for the last of these offences included a bond current at the time of commission of the Section 25A offence. He also had been for some period incarcerated in a juvenile institution but the reason for that is not apparent. 9 His family circumstances had been severely disrupted by his father's drunkenness and its consequences and Tran, while having some employment and successful study history nevertheless had had that interrupted by his own binge drinking and drug addiction, the latter habit costing up to $200 per day. Between the time of the Section 25A offence and sentence, he had participated in an unpleasant but successful home detox program and participated in counselling directed to the causes of, and preventing any relapse into, his drug addiction. Judge Armitage was clearly satisfied that Tran was remorseful and impressed with the efforts made and progress achieved in respect of Tran's addiction and rehabilitation. Judge Armitage recorded that ultimately the Crown before him conceded that periodic detention was within the proper range of the sentencing discretion and his Honour clearly regarded Mr Tran's situation as falling within the exceptional class of case where something other than full time custody was acceptable.