New South Wales Court of Criminal Appeal CITATION: TRAN v R [2007] NSWCCA 140 HEARING DATE(S): 18 April 2007 JUDGMENT DATE: 22 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 18; Rothman J at 19 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW - Appeal against sentence - supply of heroin on 5 separate occasions - offences under s 25A and 25 of the Drug Misuse and Trafficking Act - commercial business - partly concurrent sentences imposed LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Johnson v The Queen (2004) 78 ALJR 616 Mill v The Queen (1998) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Arnott [2001] NSWCCA 497 R v Bruppacher [2002] NSWCCA 182 CASES CITED: R v Gill [2002] NSWCCA 93 R v Gordon [2002] NSWCCA 476 R v Le [2002] NSWCCA 26 R v Radford [2002] NSWCCA 122 R v Sakkar [2003] NSWCCA 26 R v Siljanovski and Kostadinovic [2003] NSWCCA 38 PARTIES: Ty Tran (Appl) The Crown FILE NUMBER(S): CCA 2007/344 COUNSEL: P Boulten SC ( Appl) V Lydiard (Crown) SOLICITORS: Greenfield Lawyers (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/3261 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ LOWER COURT DATE OF DECISION: 25 August 2006 IN THE COURT OF CRIMINAL APPEAL 2007/344 McCLELLAN CJ at CL HIDDEN J ROTHMAN J TUESDAY, 22 MAY 2007 TRAN, Ty v R Judgment 1 McCLELLAN CJ at CL: The applicant was sentenced in relation to two offences being: 1. The ongoing supply of heroin on 5 separate occasions contrary to s 25A of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is imprisonment for 20 years. 2. Deemed supply of heroin contrary to s 25 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is 15 years imprisonment. 2 In relation to the first count the sentencing judge imposed a sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months. In relation to the second count his Honour imposed a term of imprisonment of 2 years and 6 months with a non-parole period of 12 months. 3 The sentencing judge determined that the sentences should be made partly concurrent. His Honour adjusted the commencement date of the sentence on the second count so that it commenced 3 months before the conclusion of the non-parole period on the first count. 4 Accordingly, the total effective non-parole period was 3 years imprisonment and the total effective sentence was 4 years and 6 months. 5 The applicant does not complain in relation to the terms of the individual sentences. His complaint is confined to a submission that greater concurrency of the sentences should have been provided. It was submitted "that by ordering that only 3 months of the two sentences should be dealt with concurrently, his Honour did not give sufficient effect to the principle of totality." 6 The sentencing judge found that the applicant was involved in a commercial business operating "above the street level of sales." In relation to the first count there was evidence that on four occasions the applicant supplied heroin in approximately 5 gram packages. On the fifth occasion he sold 56 grams of heroin. On that day the applicant was found to be in possession of a further 75 grams of heroin which gave rise to the second charge. 7 Accordingly, in total the applicant either supplied, or had in his possession 151 grams of heroin. 8 The sentencing judge did not distinguish in great detail between the facts relevant to the criminality in relation to each offence. His Honour found that the crimes were serious and that the applicant was further up the chain of sales than street sellers, some of whom were involved in the s 25A matters. His Honour found that the applicant had no regard to where the heroin which he supplied may end up and the consequences for those who might use it. His Honour determined that the potential harm to the community from the supply of the drugs was significant. His Honour found that having regard to the quantities supplied in relation to the first count and in his possession in relation to the second count, the applicant had access and control over an amount of heroin that placed "the offence as being slightly above the middle of any scale constructed for such an offence." This conclusion was directed to the second count. 9 His Honour had regard to the applicant's plea of guilty and allowed a discount of 25%. His Honour also addressed the question of totality and determined: "Having regard to the fact that the second offence relates to the supply of heroin being a deemed supply, being a supply in the possession of the offender, in addition to that which comprises the fifth ingredient of the first offence, I am of the view that the sentence for the second should be partly cumulative and partly concurrent." 10 As I have indicated the applicant does not complain that the individual sentences are excessive. To my mind such a submission would have had no prospects of success. The Court was referred to a number of decisions in relation to sentences for offences contrary to s 25A. Although the Crown contended that these decisions supported the sentence on the s 25A matter the applicant argued that each of them contained features of aggravation which were not present in the applicant's case. The decisions were R v Siljanovski and Kostadinovic [2003] NSWCCA 38; R v Sakkar [2003] NSWCCA 26; R v Gordon [2002] NSWCCA 476. R v Bruppacher [2002] NSWCCA 182, R v Radford [2002] NSWCCA 122; R v Gill [2002] NSWCCA 93; R v Le [2002] NSWCCA 26; R v Arnott [2001] NSWCCA 497. It is unnecessary to analyse each of these decisions. There are features in some of them which would distinguish them from the circumstances of the applicant. However, the applicant does not contend that the sentence imposed on the first count was excessive. 11 The applicant submitted that his Honour failed to adequately distinguish between the objective criminality of each offence. In particular it was submitted that his Honour's finding that the applicant was engaged in a commercial business, which was in part informed by evidence in relation to both counts, had caused his Honour to elevate the objective seriousness of each offence. In my opinion there is no substance in this submission. If his Honour did err in the manner suggested the consequence must have been to impermissibly increase the sentence for each offence. However, as I have indicated the applicant does not complain that the individual sentences were excessive. 12 The relationship between offences committed contrary to s 25 and s 25A of the Act was considered by the legislature when s 25A was enacted. Section 25A(5) deals with the possibility of double jeopardy and provides that a person who has been convicted of an offence under s 25A is not liable to be convicted, inter alia, of an offence under s 25 on the same or substantially the same facts. Accordingly, if, as happened in the present case, a person is apprehended in the course of an occasion of supply contrary to s 25A, the drugs supplied cannot form part of a deemed supply offence. Separate sentences for a breach of the separate statutory provisions must be imposed. 13 However, when, as happened in the present case, a person is being sentenced at the same time for breaches of s 25 and s 25A the common law principles provided in Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616 must be followed. In Pearce McHugh, Hayne, Callinan JJ said (at 623): "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 14 In the present case the sentencing judge was satisfied that the evidence supporting a breach of s 25A and s 25 justified a finding that the applicant was engaged in a commercial business. His operation was further up the chain than a street seller and he was to be sentenced accordingly. Because the final supply of 56 grams occurred on the same day as he was found to possess a further 75 grams of heroin his Honour determined that a degree of concurrency was required. His Honour was otherwise satisfied that the s 25A offences were distinct from the s 25 offence. As was accepted by counsel for the applicant the evidence did not suggest that the earlier occasions of supply had come from a larger quantity of which the residue was the 75 grams ultimately found in his possession. 15 Although his Honour provided a concurrency of non-parole periods of 3 months the total sentences were made concurrent by a period of 21 months. The consequence is that in relation to the breach of s 25 the applicant was sentenced to an effective non-parole period of only 9 months and a total effective term of 9 months. This was undoubtedly a lenient sentence and may in my opinion standing alone have been manifestly inadequate. 16 The overall effective sentence was 4 years and 6 months with an effective non-parole period of 3 years. When considering the applicant's total criminality it was relevant that he had possessed over a short period of time a total of 151 grams of heroin and was engaged in a commercial enterprise supplying to others who would resell to users. This was a significant quantity of heroin which called for a penalty which both punished the applicant, deterred him from reoffending and deterred others from taking up a business of supplying heroin. To my mind the total sentence which his Honour determined, after considering the individual sentences and matters of concurrence was appropriate. 17 Although I would grant leave to appeal I would dismiss the appeal. 18 HIDDEN J: I agree with the orders proposed by McClellan CJ at CL and with his Honour's reasons, as I do with the additional observations of Rothman J. 19 ROTHMAN J: I have had the advantage of reading the reasons for judgment of McClellan CJ at CL. I agree generally with the reasons of his Honour and I agree with the orders he proposes. 20 An offence under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW) is a serious offence carrying a maximum penalty of 20 years. It requires, as an element of the offence, an ongoing actual supply of drugs. Invariably, in order to perpetrate an offence under section 25A, the offender would need to be in possession of illicit drugs of a quantity which would, pursuant to the terms of section 25 of the Drugs Misuse and Trafficking Act, be deemed to be supply. 21 In dealing with the issue of totality in sentencing, it is important that the culpability of the offender is not double counted. 22 In the current circumstances, were I sentencing afresh, I would have imposed a more significant sentence for the offence under section 25 and provided for a greater degree of concurrence between the two sentences. But sentencing is not mathematical nor is any one result mandated. Sentencing judges must be allowed as much flexibility as possible provided that the sentencing process is "consonant with consistency of approach and … accords with the statutory regime under which the sentencing is effected": Johnson v The Queen (2004) 78 ALJR 616 at 624 [26]. 23 While the approach of his Honour in sentencing may not accord with the same approach I would take to the "orthodox method" espoused in Mill v The Queen (1998) 166 CLR 59 and referred to in Pearce, supra, and Johnson, supra, it neither discloses error nor is error manifest. 24 His Honour seems to have taken an approach slightly at variance with that which is described as "orthodox" in Johnson, supra, at [26]. Nevertheless his Honour has not had regard only to the total effective sentence and his Honour has not committed error. 25 Further the sentence imposed would not pass the limitations imposed by section 6(3) of the Criminal Appeal Act 1912 (NSW). 26 I agree with the reasons of McClellan CJ at CL and with the orders he proposes. ********** 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.