LU v R [2007] NSWCCA 74

New South Wales Court of Criminal Appeal

CITATION: LU v R [2007] NSWCCA 74 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 March 2007 JUDGMENT OF: McClellan CJ at CL at 19; Hulme J at 1; Hislop J at 20

EX TEMPORE JUDGMENT DATE: 16 March 2007

DECISION: Leave to appeal granted; Appeal dismissed

PARTIES: Regina Quang Hoang LU

FILE NUMBER(S): CCA 2007/2733

COUNSEL: Crown: N Noman Applicant: C Loukas SC

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3214

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

- 5 - IN THE COURT OF CRIMINAL APPEAL 2007/2733

McCLELLAN CJ AT CL HULME J HISLOP J

Friday, 16 March 2007 Quang Hoang LU v R Judgment 1 HULME J: In these proceedings the Applicant seeks leave to appeal against sentences imposed on him by Judge Maguire on 26 May 2006 following his plea of guilty to a charge of, on 11 March 2005, supplying heroin. The quantity involved was 24.07 grams. After allowing a discount of 20% because the Applicant pleaded guilty, his Honour imposed a sentence of imprisonment involving a non-parole period of 3 years and 7 months commencing on 2 November 2005 together with a further term of 13 months. 2 The offences arose under the Drug (Misuse and Trafficking) Act which provides a maximum penalty for offences involving less than 250 grams of heroin of 15 years imprisonment. In the case of quantities that are "small" – less than 1 gram - and the offence is prosecuted summarily as almost invariably such offences are, the maximum penalty of imprisonment provided is 2 years although, having said that, I make it clear that I judge the Applicant's offending against the maximum penalty laid down for the offence with which he stands charged – See Markarian v R (2005) 79 ALJR 31. 3 The "supply" was a deemed supply pursuant to the expanded definition in Section 3 and Section 29 of the Drug (Misuse and Trafficking) Act. The heroin had been found by police when they entered premises in which the Applicant was living. Seven foils containing in total 0.77 grams together with $435 were found adjacent to the hands of the Applicant when police entered his premises. A block located on a computer desk contained a further 23.3 grams with a purity of 24.5%. 4 The Applicant asserted he had purchased the foils that day and that he had paid $4,500 for the block. In an ERISP he maintained that the heroin was for his own use. A statement of a detective-sergeant with considerable experience in drug operations provided strong evidence to the contrary and that the Applicant was a dealer. No oral evidence was given on sentence and his Honour made no express finding on the issue. 5 His Honour took into account on sentence an offence of having goods (the $435) in custody reasonably suspected of being stolen or otherwise unlawfully obtained. 6 The Applicant's subjective circumstances were not such as to inspire leniency. He was born in 1973. He has a long record of offending from 1990 to 2003, a record which includes something of the order of 20 occasions when he had been sentenced by courts for one or more offences. Many were offences of dishonesty typical of drug addicts. Two were for possession of a prohibited drug. In January 1996 he was imprisoned for knowingly take part in the supply of a prohibited drug, in March 2003 he was sentenced to 12 months imprisonment, including a non-parole period of 9 months for the supply of a prohibited drug, a sentence which was suspended after he had appealed and come under the jurisdiction of the Drug Court. His participation in the program of that Court was terminated after he was again, on 28 April 2004, convicted of the supply of a prohibited drug and a community service order imposed. During the period of the Applicant's criminal career he has had imposed on him nearly all the types of penalties or other orders known to the criminal law. At the time of his offence he was still subject to the conditional liberty inherent in the order of 28 April 2004 – see R v Cicekdag [2004] NSWCCA 357 7 A Probation and Parole report that Judge Maguire relied on stated, inter alia, that the Applicant had arrived in Australia in 1979 after his family fled from Vietnam, that the Applicant had said that he began smoking marihuana and abusing alcohol at age 15 and began smoking heroin at age 21 or 22 and that he had never had counselling or been engaged in drug courses. His Honour accepted this evidence. 8 His Honour observed, in findings that have not been the subject of challenge in this Court, that there was no evidence of contrition apart from the Applicant's plea and that his Honour regarded the Applicant as having poor prospects of rehabilitation. His Honour characterised the offence as very serious and observed that deterrence, both personal and general had to be taken into account. 9 As has been indicated, Judge Maguire allowed the Applicant a discount of 20% for his plea. His Honour did not indicate the reasons for choosing that figure although the Crown Sentence Summary indicates that on 28 September 2005 the Applicant was committed for sentence. That the sentence Judge Maguire imposed should commence from 2 November 2005 was common ground. 10 The grounds of appeal, which may conveniently be dealt with together, are:-