New South Wales Court of Criminal Appeal CITATION: YOUNG v REGINA [2007] NSWCCA 114 HEARING DATE(S): 16/04/07 JUDGMENT DATE: 26 April 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 4; Rothman J at 5 DECISION: (a) leave to appeal granted and the appeal granted in part; (b) the sentence (other than on the revocation for breach of the good behaviour bond) imposed on the applicant by Morgan DCJ on 28 July 2006 (including the offence on the Form 1) be quashed and in lieu thereof the following sentence be imposed: (i) for the offence of supply prohibited drug, methylamphetamine, not less than indictable quantity (date of offence between 9 June 2005 and 16 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [including the offence of the Form 1 of possess prohibited drug, methylamphetamine (date of offence 25 August 2005) contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW)] the applicant be sentenced to 3 years' imprisonment consisting of a non-parole period of 18 months to commence on 16 November 2006 and expire on 15 May 2008 with a balance of term of 18 months to expire on 15 November 2009. CATCHWORDS: CRIMINAL LAW - SENTENCE APPEAL - no error identifiable or manifest - commission of offence on conditional liberty - caution in application of statistics - not outside of range of sentence available given recalcitrance of offender - backdating to account for pre-sentence custody. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Markarian v R (2005) 79 ALJR 1048 R v Bardo, NSWCCA, unreported, 14 July 1992 CASES CITED: R v Clarke, unreported, NSWCCA 15 March 1990 R v Gip [2006] NSWCCA 115 R v Ponfield (1999) 48 NSWLR 327 Veen v R [No 2] (1988) 164 CLR 465 PARTIES: Lap Tak YOUNG (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/387 COUNSEL: J. Overall (Applicant) V. Lydiard (Respondent) SOLICITORS: Ren Zhou Lawyers (Applicant) S. Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0196 LOWER COURT JUDICIAL OFFICER: Morgan DCJ LOWER COURT DATE OF DECISION: 28/07/06 IN THE COURT OF CRIMINAL APPEAL 2007/387 McCLELLAN CJ at CL HIDDEN J ROTHMAN J 26 APRIL 2007 Lap Tak YOUNG v REGINA Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Rothman J in draft. I agree that leave to appeal should be granted and the appeal determined as his Honour proposes. 2 The critical factor in the resolution of the appeal is that the applicant committed further offences after been released on a good behaviour bond. By his conduct the applicant confirmed his propensity for committing drug related offences and a steadfast disobedience of the law. In these circumstances an offender can expect a sentence at the higher end of the appropriate range in order to meet the objectives of "retribution, deterrence and protection of society" (Veen v R (No 2) (1998) 164 CLR 465). 3 As Rothman J has demonstrated although the sentences which her Honour imposed were at the higher end, they were not beyond the range so as to be excessive. 4 HIDDEN J: I agree with Rothman J. 5 ROTHMAN J: Lap Tap Young, the applicant, seeks leave to appeal the sentence imposed by Her Honour Judge Morgan DCJ on 28 July 2006. 6 The applicant was charged with supply prohibited drugs, methylamphetamine, not less than an indictable quantity (date of offence being between 9 June 2005 and 16 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for 15 years or 2,000 penalty units fine or both. The applicant pleaded guilty to that offence. The applicant also included on a Form 1 the offence of possess prohibited drug, methylamphetamine (date of offence 25 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant was also before her Honour in relation to the revocation of a breach of good behaviour bond that had previously been imposed by her Honour on 2 March 2006. 7 In relation to these matters her Honour imposed the following sentences: (a) for the revocation for breach of good behaviour bond, her Honour imposed a sentence of 18 months' imprisonment consisting of a non-parole period of 9 months, to commence on 6 July 2006 and expire on 5 April 2007 with a balance of term of 9 months to expire on 5 January 2008; (b) for the supply of prohibited drug (including the possess prohibited drug on the Form 1), her Honour imposed a sentence of 3 years' imprisonment consisting of a non-parole period of 18 months to commence on 5 January 2007 and expire on 4 July 2008 with a balance of term of 18 months to expire on 4 January 2010. 8 The appellant in the notice of appeal raised three grounds of appeal: (a) her Honour erred in that the applicant was not indicted; (b) the sentence for the offence was manifestly excessive; (c) the sentence did not properly reflect pre-sentence custody. 9 At the hearing before this Court, the first ground listed above was abandoned. Given the nature of the ground, this was a commendable and appropriate course. 10 I deal with the ground of appeal relating to manifest excess in the sentence imposed. It is necessary to outline briefly the circumstances of the offence and the nature of the reasoning of her Honour in sentencing the applicant. 11 The applicant pleaded guilty and the facts were agreed. It is accepted that since March 2005 the applicant had been the subject of a covert investigation in relation to the supply of prohibited drugs. Electronic surveillance was used and a number of mobile telephone calls were intercepted. The evidence established that between 9 June 2005 and 16 August 2005 the applicant was supplying crystal methylamphetamine in amounts of 1 gram or less at a time to a number of prostitutes in the Sydney city area whom the applicant knew. 12 During that period a number of acts of supply were identified (being 18 in number) being supply of amounts varying between 0.25 grams and 3 grams and totalling an amount of 12.75 grams (although on four occasions the amount of drugs involved is unclear and they have not been included in any total). While these amounts were not included in the agreed facts, they were derived by the applicant from an analysis of the intercepted telephone calls that were otherwise before the Court. 13 However the intercepted telephone calls that were before the Court were only a representative sample of the dealing in drugs conducted by the applicant. 14 It is necessary to give some history beyond that which has been provided above. On 7 June 2004 the applicant was found in possession of 25 tablets of ecstasy and was charged in relation to that offence. The applicant pleaded guilty and was sentenced by Morgan DCJ for the offence of deem supply of not less than an indictable quantity of ecstasy. Her Honour imposed a sentence of 18 months' imprisonment with a non-parole period of 9 months. That sentence was wholly suspended on entering into a section 12 bond to be of good behaviour on condition that the applicant place himself under the supervision of the Probation and Parole Service. 15 The offences that the applicant seeks to appeal were committed while he was on bail pending the earlier sentence (on 28 July 2005) and while he was subject to the section 12 bond. Indeed, the applicant was committing the offences now subject to application for leave to appeal on the very day in which he was sentenced by Morgan DCJ and on which date his sentence was wholly suspended. 16 In her remarks on sentence, Morgan DCJ sets out the background of the applicant and recites his use of drugs at an early age as well as certain problems that existed for him during his childhood. Her Honour also recites the criminal history of the applicant which dates from his youth but which is otherwise not particularly serious. 17 Her Honour gave the applicant the benefit of what she described as the supply of very small quantities of drugs and the fact that they were supplied, largely, to sex workers in payment for services rendered. Her Honour also gave the applicant the benefit of what she considered was genuine remorse. Her Honour referred to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which codify and adumbrate principles that have long been recognised as the purpose of sentencing. In sentencing an offender, a sentencing judge must balance the need to protect the community, to deter criminal activity (both by the offender and generally within the community), rehabilitation of the offender and community retribution of the criminal offence in question. As has been stated on a number of occasions, it is not an exercise in pure logic. It is an exercise in discretion and an appeal against such an exercise can be successful only when one of the well known grounds for disturbing such an exercise is established. The purposes of sentencing overlap and cannot be considered in isolation from each other. They often conflict and point to different conclusions: see Veen v R [No 2] (1988) 164 CLR 465. 18 In dealing with the manner in which the antecedent criminal history of an offender should be dealt with in the sentencing process, the High Court in Veen v R [No 2] (1988) 164 CLR 465 said: "… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences …. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 19 With this applicant, his apprehension and the imposition of a sentence upon him on the first occasion in March 2006, had no effect on his conduct. There can be few more obvious examples of the need for condign punishment in order to effect retribution, deterrence and the protection of society. Not only were the offences for which the applicant was here sentenced not an uncharacteristic aberration in behaviour, but they displayed a continuing attitude of disobedience of the law. That attitude will no doubt continue unless and until an appropriate change occurs. Such a change in attitude will not be effected without an appropriate sentence for the offences in question. This Court has often stated that the commission of offences whilst on conditional liberty is a very serious issue that affects the objective seriousness of the case: R v Ponfield (1999) 48 NSWLR 327 at [48]. It is also an aggravating circumstance under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 20 Ultimately the issue agitated by the applicant is whether the sentences imposed are appropriate. The applicant relied upon a schedule of decided cases in the Court of Criminal Appeal dating from 1993 and sought, by reference to it, to show that the general trend in sentencing had been much lower than the sentence imposed upon the applicant. That schedule shows that the severity of sentences increased significantly from about 2000, presumably to reflect community attitudes to the prevalence of drug offences. Only twenty-seven cases were included in the schedule. 21 The applicant also relied upon statistics prepared by the Judicial Commission of New South Wales showing the range of consecutive and non-consecutive terms for this offence on a plea of guilty where there was only one count subject of sentence and Form 1 matters were included. Those statistics concerned in the one instance 20 cases and in the other 18. 22 One must be exceedingly carefully in applying statistics arithmetically. If applied arithmetically, a statistical analysis will simply perpetuate results that become self fulfilling. Sentencing is not an arithmetic exercise: Markarian v R (2005) 79 ALJR 1048. In R v Clarke, unreported, NSWCCA 15 March 1990, this Court expressed a view, reflecting the then and current community view on the importance of general deterrence of drug traffickers. It is only in exceptional circumstances that a non-custodial sentence will be appropriate for a person who is trafficking. A person, such as the current applicant, who supplies drugs on more than one occasion (see R v Bardo, NSWCCA, unreported, 14 July 1992; R v Gip [2006] NSWCCA 115) will ordinarily face a full time custodial sentence. 23 While an end supplier will generally not receive the severity of sentence of persons higher in the supply chain, where a court is faced with a person who quite flagrantly ignores previous and extant sentences, it is appropriate that condign punishment be imposed. This means that the relative leniency, compared to more senior suppliers in the chain, that is usually reflected in the sentencing of small suppliers such as the current applicant, may be of less importance than the need to deter the displayed propensity of the particular offender and to seek to ensure that society may be protected from what would otherwise be a continuing and flagrant disobedience of the law. 24 The applicant was sentenced to 36 months with a non-parole period of 18 months. This puts the sentence at the very upper end of the mid range of sentences on the statistics provided. As earlier stated statistics may be misleading. 25 While the sentence is at the high mid range, it is not beyond the range and is not manifestly excessive. 26 One aspect of the sentence imposed caused some concern, being that raised in the third ground of appeal. It seems that, through a miscalculation, her Honour has failed to take account of fifty-one days of pre-sentence custody served by the applicant. During the course of the submissions on sentence this matter was discussed. It concluded with the following exchange: "HER HONOUR: In considering that, the only matter I would really have to consider is taking into account the time that he spent in custody in relation to this matter, the sentence matter, and how that may be able to be dealt with by way of commencing at an earlier date in that non-parole period, to take account of that month and twenty days, whatever it was. Would that be an appropriate way in which to give him that benefit? OWENS [THE CROWN]: Yes. I think that would be appropriate. If you backdate the commencement of the sentence for one month and twenty days, or fifty days, that would adequately address that issue." 27 On appeal, the Crown, once more, conceded the appropriateness of that backdating. That error in calculation should be the only variation of the sentence. 28 In the circumstances I propose that the Court make the following orders: (a) leave to appeal granted and the appeal granted in part; (b) the sentence (other than on the revocation for breach of the good behaviour bond) imposed on the applicant by Morgan DCJ on 28 July 2006 (including the offence on the Form 1) be quashed and in lieu thereof the following sentence be imposed; (i) for the offence of supply prohibited drug, methylamphetamine, not less than indictable quantity (date of offence between 9 June 2005 and 16 August 2005) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) [including the offence of the Form 1 of possess prohibited drug, methylamphetamine (date of offence 25 August 2005) contrary to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW)] the applicant be sentenced to 3 years' imprisonment consisting of a non-parole period of 18 months to commence on 16 November 2006 and expire on 15 May 2008 with a balance of term of 18 months to expire on 15 November 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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