New South Wales Court of Criminal Appeal CITATION: Regina v Gu [2006] NSWCCA 104 HEARING DATE(S): 03/04/2006 JUDGMENT DATE: 7 April 2006 JUDGMENT OF: Grove J at 1; Simpson J at 2; Howie J at 3 DECISION: Appeal is dismissed. CATCHWORDS: Criminal Law - Sentencing - Crown appeal - whether sentence of periodic detention manifestly inadequate for offences of drug supplying - young vulnerable offender - whether at risk in custody - failure to find facts - failure to properly take matters into account - exercise of discretion to dismiss the appeal. LEGISLATION CITED: Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 25(1) R v Blanco (NSWCCA, unreported, 22 October 1987) R v Clarke (NSWCCA, unreported, 15 March 1990) T v Thompson (NSWCCA, unreported, 4 April 1994) R v Cacciola (1998) 104 A Crim R 178 R v Harmouche [2005] NSWCCA 398 CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Mostyn (2004) A Crim R 304 R v Way (2004) 60 NSWLR 168 R v Gorman (2002) 137 A Crim R 326 R v Wall [2002] NSWCCA 42 PARTIES: Regina v Wen Fei Gu FILE NUMBER(S): CCA 2005/2413 COUNSEL: P. Miller - Crown A. Francis - Respondent SOLICITORS: S. Kavanagh - Crown S. O'Connor - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/22/0700 LOWER COURT JUDICIAL OFFICER: Geraghty DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2413 GROVE J SIMPSON J HOWIE J FRIDAY 7 APRIL 2006 REGINA v WEN FEI GU Judgment 1 GROVE J: As Howie J has recorded the Court dismissed this Crown appeal and indicated that it would give reasons later. I have read his Honour's reasons in draft and I express my agreement and would adopt them as my reasons for joining in the order made on 3 April. 2 SIMPSON J: I agree with Howie J. 3 HOWIE J: After the hearing of this matter the Court made an order dismissing the appeal and indicated it would give its reasons later. These are my reasons for joining in that order. 4 This was an appeal by the Crown under s 5D of the Criminal Appeal Act against sentences imposed upon the respondent by Judge Geraghty (the Judge) for two offences of supplying a prohibited drug. Each of the offences was contrary to s 25(1) of the Drug Misuse and Trafficking Act for which the maximum penalty of imprisonment for 15 years is prescribed. The respondent was sentenced on each count to a non-parole period of 13 months and a balance of term of 12 months. The Judge ordered that the sentences be served concurrently and by way of periodic detention. 5 The respondent pleaded guilty in the Local Court during the course of committal proceedings and after some agreement was reached as to the charges for which the respondent should be committed to the District Court. Each offence alleged that between 25 October and 5 November 2004 the respondent supplied a prohibited drug. The first charge concerned methylamphetamine in the form commonly known as "ice" and the second charge related to ecstasy. There was an agreed statement of facts tendered to the court. Although the Judge did not set out the facts he found in the course of his sentencing remarks, it is necessary to do so for the purpose of this appeal. 6 The charges against the respondent arose from investigations by police between July and November 2004 into allegations of fraud during which a number of telephone calls were lawfully intercepted. As a result of these interceptions the respondent was identified as being involved in the supply of prohibited drugs. The facts 7 The first charge related to 500 tablets of methylamphetamine supplied by the respondent on 28 October 2004. On that day a co-offender named Cheng received a telephone call from a man named Ng who said that he wanted to buy 500 tablets. Cheng said that he would organise it and they agreed to meet in the city later that afternoon. A short time later Cheng telephoned the respondent who told Cheng that he could supply the tablets. Cheng indicated to the respondent that he was going to call Ng back and was later to go into the city. He suggested that the respondent accompany him. The respondent told Cheng to tell the buyer to come to the respondent's home but Ng was not prepared to do so. Cheng and Ng agreed to meet in the city at about 6:30pm. At about 5:30pm Cheng rang the respondent and told him that they were selling the tablets for $15.50 per tablet. Cheng told the respondent he would confirm the deal and asked him to hold the tablets. Later Cheng called the respondent who asked him to obtain the money from the buyer and then to come and see him. The respondent would go to meet the buyer with the tablets. This arrangement proved unsuitable to Ng so that eventually the respondent and Cheng met Ng in the city and the respondent supplied him with the tablets. 8 The second charge concerned the supply of 300 tablets of ecstasy on 2 November 2004. The respondent supplied the tablets to Cheng and a third person named Mullally who together on-sold the tablets to another man named Lim. In the evening of 1 November, Mullally phoned Lim and asked him whether he wanted ecstasy tablets. Lim arranged to buy 300 of the tablets at a price of $16.50 per tablet. At about 8:45pm on 2 November Cheng telephoned the respondent and said that he wanted 300 tablets. Cheng then went to the respondent's home and received the drug. In the early hours of 3 November, Mullally contacted Cheng and told him that Lim was not happy with the quality of the tablets and wanted to exchange them. At about 5:00am Cheng telephoned the respondent and told him that Lim either wanted to return the tablets or to swap them for something else. Cheng asked what the respondent wanted him to do. The respondent agreed to take half of the tablets back. A short time later Cheng telephoned the respondent to find out the name of the tablets. He said that he thought that he could convince Lim to keep the tablets but was concerned that people using the tablets were not being affected. He asked the respondent whether the tablets had come from a reliable source and the respondent indicated that they had. Later Cheng rang the respondent and told him that Lim had agreed to keep the tablets. 9 In addition to the two charges before the court the respondent asked the sentencing judge to take into account, when sentencing him for the first offence, three matters on a Form 1. Each of these matters arose on 1 September 2004 when the police spoke to the respondent in relation to his driving. The respondent acted in a manner that led the police to suspect him of some wrongdoing and he was asked to get out of the motor vehicle. As he did a resealable packet dropped to the ground. The respondent was asked to empty his pockets and produced an amount of $4,300 which he told police he had won on poker machines at a hotel. When police indicated they would check the video footage at the hotel, the respondent admitted that he had not been there. The respondent was searched and five resealable plastic bags containing drugs were located on him. Police also found a notepad containing several figures noting weight and cash amounts labelled with the words "purchased" and "profit". The plastic bags were found to contain 3.55gms of methylamphetamine in four of the bags and 0.10gms of cocaine in the fifth. 10 As a result of this incident the respondent was charged with goods in custody in relation to the money, supplying a prohibited drug in relation to the methylamphetamine and possess a prohibited drug in relation to the cocaine. These were the matters appearing on the Form 1. The respondent was granted bail on these charges and the two offences for which he was to be sentenced were committed while he was on bail. The respondent's subjective case 11 The respondent was aged 20 years at the time of the offending and had no prior convictions. He had been in custody on remand for the offences for about three months. He was born in China and came with his family to Australia at the age of nine. His upbringing was strict but the respondent rebelled and entered into conflict with his parents. He commenced truanting from school and fell into poor company. His parents separated in 2003. The respondent worked at an Internet café for about 12 months until his drug dependency became too great and thereafter was unemployed. He commenced using ecstasy in 2003 and amphetamine in 2004 when he ceased using ecstasy. He was using $100 worth of "ice" each day before his arrest. He also maintained that he had a significant gambling habit at the time of his offending. 12 After being released to bail he was reunited with his parents and lived with his father at the time of sentencing. He intended to recommence his education. He had been drug free since being arrested and attending for urine screening which had proved negative for illicit drugs. A psychological report in evidence suggested that the respondent had a personality type that was vulnerable to substance abuse because of a lack of self-confidence as a result of his effeminate appearance. It reported that the respondent had by virtue of his own efforts ceased the use of drugs. The psychologist expressed concern that by reason of his appearance and youth he might be potentially vulnerable to assaults in gaol. There was a report from an employment agency that indicated that the respondent had attended all appointments punctually and had been "keen to get his life back on track". 13 The respondent's mother gave evidence before the Judge and expressed the belief that it was her fault that the respondent started taking drugs because she had spoken to him frequently about her troubles. His father gave evidence that the respondent had expressed his regret for his behaviour and had broken his ties with the people with whom he was previously associating. The co-offender 14 Judge Hock sentenced the co-offender Cheng. He had only one charge of knowingly taking part in the supply of drugs covering the same activity for which the respondent was to be sentenced. Cheng was also sentenced for an offence of dishonesty. Judge Hock described Cheng as a middleman who received $120 for the supply of the $500 tablets. Her Honour found that notwithstanding that his role was "low down in the hierarchy" a full time custodial sentence was warranted. He was 22 years of age and had one prior matter of dishonesty for which he had been sentenced to a term of periodic detention that he had breached. He received a discount of 20 per cent for his plea of guilty. Cheng was sentenced for the supply of drugs to a term of imprisonment comprising a non-parole period of ten months and a balance of term of ten months. The sentencing remarks 15 Judge Geraghty gave the respondent the benefit of a discount of 20 percent for his plea and the Crown does not cavil with that assessment. The Judge accepted that the offences were aggravated by the fact that the respondent was on bail and that they were planned or organised activity. He found in mitigation that the respondent had no previous record and was previously a person of good character. He considered that the respondent was unlikely to offend again. He found special circumstances in that he was "very young and quite immature", it was his first offence and that he was likely to rehabilitate himself. 16 The Judge held that no other penalty but imprisonment was appropriate and stated: It does seem to me that it would be an extraordinary case, in which a person pleading guilty and being convicted of supplying drugs to other members of the community, would be treated in other way than by a period of imprisonment. However the Judge also held: Fulltime incarceration, given his youth and his appearance, would likely result in tragic consequences. 17 In a report to this Court the Judge stated: In view of his age, the fact that this was his first offence, and because his youthful appearance would make him as especially vulnerable in a prison setting, I was reluctant to impose a full-time custodial sentence. I considered that a sentence of periodic detention is a safer option in the circumstances, as well as constituting both a specific and general deterrent. Asserted errors 18 The Crown submitted that the sentence was manifestly inadequate but also pointed to what it said were specific errors that might explain why the sentence was so lenient as to be outside the legitimate range of the Judge's sentencing discretion. (a) failure to find facts 19 The first was that the Judge failed to give sufficient weight to the role played by the respondent. The Judge said nothing at all about the facts of the offences other than to refer to the existence of the statement of facts. The Crown asserted that the Judge was in error in not making some finding as to the role of the respondent particularly in light of the fact that he had to consider the sentence imposed upon the co-offender Cheng for the purpose of parity. The Crown argued that had the Judge considered this issue he would have inevitably found that the respondent was at a level above the co-offender in the drug hierarchy as the respondent had control of the drugs and was giving Cheng directions. 20 Ms Francis, who appears for the respondent on this appeal, submitted that the Judge must have been seized of the facts because he referred to the statement of facts and the sentence imposed by Judge Hock. She also submitted that the Crown did not rely upon the greater role of the respondent at the hearing but rather conceded that a sentence of less than three years was open in light of the sentence imposed upon Cheng. In any event it was argued that the statement of facts did not disclose that the respondent did have a more serious role. (b) failure to take into account the Form 1 matters 21 The Crown argued that, although the Judge stated that he was taking into account the matters on the Form 1, he could not have done so. The Crown pointed out that each of the sentences imposed upon the respondent were identical in length and yet the offences on the Form 1 were of sufficient seriousness that some adjustment to the sentence in respect of which they were taken into account was necessary to reflect them. The Judge did not, as he ought to have done, indicate on which offence the matters were being taken into account. 22 The respondent argued that, although it might appear at first blush that the first sentence did not reflect the matters on the Form 1, the respondent had served a period of three months in custody in respect of the first offence and, therefore, there was a distinction in the two sentences. It was argued that the overall sentence for the first offence was thus 28 months with a non-parole period of 16 months. (c) too much weight given to respondent's subjective matters (d) error in ordering sentence served by periodic detention 23 These asserted errors were argued together. The Crown submitted that the only reason that the sentence was imposed by way of periodic detention was because of the respondent's subjective circumstances. The Crown argued that there was nothing in the psychologist's report or in the other subjective factors that permitted the Judge to depart from a full-time custodial sentence. It was said that the Judge was in error in imposing periodic detention on the basis that the respondent was more at risk in the gaol environment and that full time incarceration "would likely result in tragic consequences". 24 Ms Francis argued that because the respondent had served 3 months in custody and because of his subjective case, the Judge was entitled to order periodic detention notwithstanding that she concedes a full time custodial sentence would be required except in exceptional circumstances. She also emphasised that the Judge acknowledged the need for general deterrence. (e) failure to accumulate 25 The Crown argued that the Judge ought to have accumulated the sentences for the two offences as there was no commonality other than the offenders involved. It submitted that making the sentences the same length and ordering that they be served concurrently resulted in the overall sentence being manifestly inadequate. 26 Ms Francis relied in answer to the discretion that resides in a court to decide whether offences should be made cumulative or concurrent. She pointed to the fact that the prosecutor at the sentencing hearing conceded that "the Crown can see why the Court would decline to accumulate these two sentences". Determination 27 It was my opinion the sentences were manifestly inadequate. There has been a consistent line of authority in this Court that has made it quite clear that, unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs; see R v Blanco (NSWCCA, unreported, 22 October 1987). It applies whether or not the offender has made a profit from the supply of drugs and a profit is an aggravating circumstance: R v Clarke (NSWCCA, unreported, 15 March 1990). Efforts at reform and rehabilitation since the offending will not generally be regarded as amounting to exceptional circumstances: R v Thompson (NSWCCA, unreported, 4 April 1994). The policy behind this line of authority has been held to be a rule to which sentencing judges must give serious consideration: R v Cacciola (1998) 104 A Crim R 178. It has been most recently referred to by Hulme J in R v Harmouche [2005] NSWCCA 398. 28 There was no acknowledgment of this line of authority in the sentencing remarks of the Judge. Rather, with respect, the Judge appeared to have equated a sentence to be served by way of periodic detention with a full time custodial sentence otherwise it was impossible to see how he was taking into account parity with the co-offender as he said he was. It was my opinion that there was nothing in the subjective circumstances of the respondent that was sufficiently exceptional to justify anything but a full time custodial sentence. The fact that the respondent had spent about three months in custody did not satisfy the need for general deterrence. The sentence was so inadequate as to be unreasonable: Markarian v The Queen (2005) 79 ALJR 1048. 29 It was clear in my view that the Judge had insufficient regard to the facts and made no attempt to identify where the respondent stood in relation to his co-offender. The Judge had to undertake that task, not only to assess the applicant's criminality, but also to determine the issue of parity. In my opinion it was plain that those facts reveal the respondent to be higher in the supply chain than was Cheng. It was to the respondent that Cheng came when Lim indicated he was not satisfied with the quality of the drugs. Cheng asked the respondent what he wanted him to do about it. I accepted that the respondent was obtaining the drugs from some other person, but he was nearer the source of supply than Cheng. 30 It was also my opinion that, despite what he said and the fact that he signed the Form 1, the Judge did not take those matters properly into account. Ms Francis's submission that the Judge used the period of three months in custody as being the differential between the two sentences by reason of the Form 1 matters could be accepted. The Judge ought to have properly assessed the seriousness of those matters and made it patent in his sentencing remarks how he was taking them into account and upon what sentence they were being taken into account. It was not satisfactory for the offender, the Crown or this Court to be left to speculate or conjecture about the manner in which the Judge derived the sentences he did. The supply offence on the Form 1 was a relatively serious matter. It was part of on-going supply of drugs as the notebook makes clear. The quantity of drug was over the trafficable quantity and was different from the type of drugs he was supplying in the offences to which he pleaded guilty. 31 In any event it seemed to me that the Judge must have taken as a starting sentence for each offence a period of 3 years. If this was reduced by 3 months and then 20 per cent deducted, the result was about 26 months. The total sentence imposed for each offence was 25 months. It seemed to me that the respondent received the advantage of having the 3 months served taken off both sentences. This was itself an error. I could only conclude that the Crown submission was correct and the Judge failed actually to take into account the matters on the Form 1 because there was no other explanation for the two sentences being the same length having regard to the seriousness of the matters on the Form 1. 32 It seemed clear from the sentencing remarks that the Judge determined not to impose a full-time custodial sentence only because of his opinion that it "would likely result in tragic consequences". That appeared to me, with respect, to be an over-reaction and there was insufficient basis for that conclusion. The Judge had made no investigation of whether the respondent could be adequately protected as apparently he was during the three months on remand. The protection of prisoners is the role of the Corrective Services Department. There are facilities available within the corrective establishments to house young vulnerable prisoners and still give them the facilities for rehabilitation. Apart from the psychologist's view that the offender might be "potentially vulnerable to assault", there was no evidence that the respondent was at any more risk than many other young and vulnerable prisoners or that he could not be adequately protected. It was an error for the Judge to refuse to impose a full-time custodial sentence that was otherwise warranted on this basis. 33 There was no evidence that the applicant would spend his time in more onerous conditions simply because he may need to be protected. There was none before this Court. The Judge could not make an assumption that he would: R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) A Crim R 304; R v Way (2004) 60 NSWLR 168. Counsel appearing for the respondent made no submission to the Judge that he could avoid a full-time custodial sentence because of the respondent's vulnerability. Nor did counsel submit that the Judge should impose sentences by way of periodic detention. Counsel's submission was that the Judge could impose a sentence by way of periodic detention for one offence and a "lengthy recognisance" on the other. 34 Insofar as it was asserted that the Judge erred in making the sentences concurrent, the Crown should not be allowed to criticise the Judge for not imposing at least partially cumulative sentences in light of the concession made by the prosecutor at the sentencing proceedings. That concession was based upon the Judge finding that the two offences were part of the one course of conduct. But that is not a fact that is decisive to a determination of whether sentences should be concurrent or accumulative. The question generally will be whether the sentence for one offence can encompass the totality of the criminality reflected in both offences. If it cannot, then it does not matter that the offences were part of the same course of criminal conduct: R v Gorman (2002) 137 A Crim R 326. It was my opinion that the penalty for the first offence could not reflect the total criminality of these supplies on two distinct occasions. The sentences should have been partially accumulative but, as this was a Crown appeal, I did not believe that Court should correct that error. 35 The principles upon which this Court considers Crown appeals were summarised in R v Wall [2002] NSWCCA 42 at [70]. There is no need to repeat them here but I took them into account and they were set out in the written submissions for the respondent. But it was my opinion that the sentencing exercise miscarried and the real issue was whether this Court should intervene. The respondent should have received a longer overall sentence than Cheng by reason of his role in the offences, the fact that they were committed while on bail, that they were committed for profit and because of the offences on the Form 1. The submission by the prosecutor that the Judge could impose sentences of three years or less by reason of parity was erroneous. 36 This Court cannot increase a sentence at the behest of the Crown to achieve parity but the fact that the co-offender ended up serving a sentence of full time custody for what I believed to have been a lesser role in the offences indicated the inadequacy of the sentence imposed upon the respondent. 37 The respondent attended at the hearing of this appeal. He was slightly built but otherwise there was nothing that indicated that he would be more susceptible to violence then any other young man of his kind. There was no reason for the Judge to avoid a sentence of full-time custody because of any special concerns about the respondent's well being in gaol. If young, vulnerable men want to undertake the risky profession of a drug trafficker, they should understand the consequences if caught and be punished accordingly. 38 It has previously been observed by this Court that a Judge who fails to impose an appropriate sentence for inappropriate reasons does the offender no favour. But more importantly a Judge, who does not perform his duty to impose a sentence of imprisonment where such a sentence is required in the public interest, does the community no favour. No doubt the present respondent has been put to additional anxiety by the Crown appeal hanging over his head. To return him to custody would probably have been harsher for him than had he been sentenced to full time custody by the Judge. There were affidavits before this Court showing that the respondent had continued with his rehabilitation including urine testing. He had been attending periodic detention without blemish. 39 Not without considerable doubt because I believed the sentence was manifestly inadequate in all its aspects, I concluded that the Court should exercise its discretion and dismiss the appeal. This was because of the youth of the respondent, his continuing rehabilitation since having been arrested for these offences and the double jeopardy in returning him to custody. The Judge was permitted to arrive at the position where he could impose periodic detention by inappropriate concessions by the prosecutor. ********** 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.