New South Wales Court of Criminal Appeal CITATION: Chang v Regina [2006] NSWCCA 409 HEARING DATE(S): 16/11/2006 JUDGMENT DATE: 21 December 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Hislop J at 20 DECISION: Leave to appeal granted, appeal allowed - sentences in District Court affirmed but sentence on second charge to commence on 6 August 2006. Applicant eligible for release on parole on 6 November 2008 CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - supplying heroin, aggravated break and enter and commit serious indictable offence - separate incidents - delay in prosecution of supply charge - accumulation of sentences - totality - whether aggregate sentence excessive LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 R v Todd [1982] 2 NSWLR 517 R v Holyoak (1995) 82 A Crim R 502 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Mill v The Queen (1998) 166 CLR 59 Johnson v The Queen [2004] HCA 15 PARTIES: Chun Sang Chang (applicant) Regina (respondent) FILE NUMBER(S): CCA 2006/2056 COUNSEL: G Jones (applicant) J Dwyer (Crown) SOLICITORS: Philip Sim & Associates (applicant) Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/0155 05/21/0108 LOWER COURT JUDICIAL OFFICER: Marien DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2056 MCCLELLAN CJ at CL HIDDEN J HISLOP J Thursday 21 December 2006 Chun Sang Chang v Regina Judgment 1 MCCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: The applicant, Chun Sang Chang, pleaded guilty in the District Court to the following charges: (1) Supplying (expressed as offering to supply) a prohibited drug, namely heroin, in an amount not less than the commercial quantity, an offence under s25(2) of the Drug Misuse and Trafficking Act 1985 , carrying a maximum sentence of 20 years imprisonment; (2) Being in company with other persons, breaking and entering a dwelling house and committing therein a serious indictable offence, namely intimidating Sung Hyun Kang with intent to cause him to fear physical harm, an offence under s112(2) of the Crimes Act 1900, also carrying a maximum sentence of 20 years imprisonment. 3 On the first charge, he was sentenced to a fixed term of imprisonment for three years from 6 August 2004, the date he was taken into custody. On the second charge he was sentenced to imprisonment for five years, comprising a non-parole period of two years and three months from 6 August 2007 and a balance of term of two years and nine months. It will be seen that the sentence on the second charge was wholly accumulated upon the sentence on the first charge. The overall sentence is imprisonment for eight years with an effective non-parole period of five years and three months. He seeks leave to appeal against those sentences. Facts 4 Briefly stated, the facts of the first charge are that in May 2002 the applicant was the target of a controlled operation. Over a period of days he discussed the supply of heroin with an undercover police officer. From the discussions it appears that he was acting on behalf of a third party. The applicant offered to supply the operative with 350 grams of the drug but, in the event, the transaction did not proceed. The police investigation continued and, apparently, focussed on other targets. As a result, the applicant was not charged with this offence until after 6 August 2004, when he was arrested in respect of the second charge. 5 The background to that second charge was that the victim, a young man aged 16, lived with his father in a house at Berala owned by the applicant's father-in-law. The victim's father was the tenant of the premises and was behind with the rent. On the night of 1 August 2004, the applicant went to the house and knocked on the door. The victim, who was at home alone, did not answer it. He was afraid of the applicant because on previous occasions the applicant had yelled at him and his father about unpaid rent. 6 The applicant returned to the house a little later with two other men. He bashed and kicked the front and rear doors of the house, eventually forcing the front door open. He found the victim hiding in the bedroom and demanded to know where his father was. He punched the victim to the head twice. He picked up a pair of scissors from the victim's desk and wrapped the victim's jumper around them. He went to the father's bedroom, then returned to the victim's room. He again demanded to know where the father was and again punched the victim to the side of his face. He was restrained by one of his companions, who took hold of him by his shirt. Before leaving the premises, he demanded that the outstanding rent be paid and stabbed the scissors into a corridor wall. Subjective Case 7 The applicant is a man in his mid thirties, who has a minor criminal record and whom his Honour saw as a person of general good character. He was raised in Vietnam, one of a large family. When he was 14 years of age, he escaped from that country with his mother and some of his siblings. They spent a year in a refugee camp in Malaysia before coming to this country. The rest of the family arrived here later. He has been married twice and is the father of four children. At the time of sentence he continued to enjoy the support of his second wife and of his parents. 8 He told a psychologist, who provided a report, that he did not use illegal drugs but that he drank to excess and had a gambling problem. He said that his motivation for the drug offence was to raise money to pay accumulated gambling debts. The psychologist assessed his prospects of rehabilitation as good, but recommended that he undertake a course of counselling in relation to anger management, alcohol abuse and gambling. The Application 9 Counsel for the applicant, Mr Jones, argued the application on two bases: firstly, that his Honour gave insufficient weight to the substantial delay in the prosecution of the charge of supplying the drug and, secondly, that his Honour erred in wholly accumulating the sentence for the second charge upon that for the first, leading to an overall sentence which is manifestly excessive. A ground developed in written submissions that there was unjustified disparity between the applicant's sentence on the second charge and that of a co-offender was not pressed at the hearing. Delay 10 As I have said, the offence of supplying the drug was committed in May 2002 but the applicant was not charged with it until August 2004. A further 18 months elapsed until he was sentenced in February 2006, although that appears to be attributable to the normal progress of the matter through the court system, including the fact that the plea of guilty was entered at a late stage. 11 His Honour referred to this matter in his remarks, noting that the applicant's legal representative before him (who was not Mr Jones) did not submit that the delay between the commission of the offence and the applicant's arrest should be taken into account in mitigation of sentence. His Honour added, "That is clearly so as the offender was not aware that he was under suspicion from the police until the day of his arrest." 12 This, it seems to me, is the short answer to Mr Jones' submission before us. It is appropriate to have regards to the whole of the period between the offence and sentence, but it is significant that the greater part of that period was before the applicant's arrest. This is not a case, such as R v Todd [1982] 2 NSWLR 517, in which an offender knows he must face sentence but is kept in suspense for a long period because of the operation of the criminal justice system. This is not to deny that there may be cases where a long delay between offence and arrest may be relevant to sentence, for example, where the offender has spent that time in a state of emotional turmoil, fearing exposure and disgrace: see the observations of Allen J in R v Holyoak (1995) 82 A Crim R 502 at 508-9. Nothing of that kind is suggested here. Speaking of delay generally, Allen J said (at 508): Whether, in any particular case, …a delay is a detriment depends on the circumstances of that case. There is no rule of law that it always is a detriment – although often it will be. 13 Mr Jones did not point to anything in the evidence in the present case to show that the applicant suffered a relevant detriment as a result of the delay. I would reject this ground of the application. Accumulation 14 Mr Jones did not submit that the sentence on each charge, viewed in isolation, is excessive. Rather, he argued that, in ordering that they be served cumulatively, his Honour had failed to have regard to the principle of totality and imposed a total sentence which could fairly be described as crushing. Mr Jones acknowledged that a measure of accumulation was appropriate but he argued that it should have been partial, rather than total. 15 His Honour approached the matter in accordance with the familiar principles expounded in Pearce v The Queen (1998) 194 CLR 610, assessing the appropriate sentence for each offence before considering questions of accumulation or concurrence, as well as totality. He concluded that the sentences should be totally accumulated, noting that the applicant's legal representative had not argued the contrary. That accumulation was part of his reason for finding special circumstances in the sentence for the second charge, justifying a departure from the usual proportion between a sentence and non-parole period. 16 Mr Jones pointed out that the principle of totality is applicable to the determination of a head sentence, not just a non-parole period: Mill v The Queen (1998) 166 CLR 59 at 66. In submitting that the total sentence and the effective non-parole period are manifestly excessive, he referred not only to the delay in the disposition of the first charge but also to the applicant's background and character, his favourable prospects of rehabilitation and his pleas of guilty, which his Honour saw as an expression of his remorse. His Honour found that those pleas entitled the applicant to a reduction of sentence "in the order of 15%" for their utilitarian value and added that there should be "some further reduction" for the remorse which they demonstrated, although he did not quantify it. 17 Mr Jones' concession about the appropriateness of the sentence on each charge, viewed individually, was realistic. His Honour rightly took a serious view of the drug offence, even though no heroin was actually supplied. He described the break and enter offence as "extremely serious", involving "violence and forcible entry to the victim's premises" and an "extremely high" degree of intimidation. Making all due allowance for the favourable aspects of the applicant's subjective case, salutary sentences were called for. The question remains whether, applying the principle of totality, the aggregate sentence is such as to require this Court's intervention. 18 In all the circumstances, including the applicant's subjective case, an overall sentence of imprisonment for eight years is severe. Given his Honour's discount of 15% for the utilitarian value of the pleas of guilty, together with an unquantified additional reduction for remorse, the starting point must have been in the order of ten years. In my view, the aggregate sentence is manifestly excessive. It was open to his Honour to pass wholly cumulative sentences, as the offences were entirely unconnected and separated by a significant period of time. In that event, however, it was necessary to consider whether the principle of totality required some moderation of the sentence appropriate for one or both of them: Johnson v The Queen [2004] HCA 15, 78 ALJR 616, in the joint judgment at [18]ff. With respect, it appears from the sentences which were imposed that his Honour did not undertake this exercise. 19 In my view, the aggregate sentence and the effective non-parole period should each be reduced by one year. Consistently with the trend of authority examined in Johnson, I think it preferable that this be achieved by the partial accumulation of the sentences. Accordingly, I would grant leave to appeal and allow the appeal. I would confirm the sentences passed in the District Court, but would direct that the sentence on the second charge commence on 6 August 2006. The applicant would be eligible for release on parole on 6 November 2008. 20 HISLOP J: I agree with Hidden J. ********** 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.