Van Can HA v REGINA [2008] NSWCCA 141

New South Wales Court of Criminal Appeal

CITATION: Van Can HA v REGINA [2008] NSWCCA 141

HEARING DATE(S): 14 December 2007

JUDGMENT DATE: 24 June 2008

JUDGMENT OF: Grove J at 1; Hulme J at 7; Simpson J at 63

DECISION: Grant leave to appeal Dismiss the appeal

PARTIES: Van Can HA Regina

FILE NUMBER(S): CCA 2007/2943

COUNSEL: Crown: P Miller Applicant: P Hastings QC

SOLICITORS: Crown: S Kavanagh Applicant: D'Arcy Sloman Peacock Lawyers

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0992

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 09/02/07

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2007/00002943

GROVE J HULMEJ SIMPSON J

Tuesday 24 June 2008 Van Can HA v REGINA JUDGMENT 1 GROVE J: I agree with the orders proposed by Hulme J. 2 I wish only to add some brief observations. The effective sentence is severe but it was justified by the conclusion of the learned sentencing judge that the offences did not arise from isolated criminality but from the appellant's engagement in trafficking for financial gain. That finding was available and plainly correct. 3 The reasons given by Hulme J demonstrate why the appellant can have no justifiable sense of grievance about the way he was treated when compared to sentences received by other offenders to which argument in support of the appeal was directed. 4 Unlike Hulme J I would not, after examination, categorize the remarks of the sentencing judge as unduly cryptic nor would I conclude that there was shown an inadequate compliance with the mandatory requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999. Of course the language of that statutory provision is that of command but I would stress that the scope of the mandate should not be misunderstood and any compliance is dependent upon the existence of relevant evidence of any particular factor. The mandate does not require a sentencing judge to engage in a ritual analysis of the possible factors scheduled therein in order sufficiently to reveal the processes involved in the penalty assessment. The expression in the present instance could have more readily conveyed the necessary information by the use of simple statements of findings of fact but, nevertheless, I consider that there was adequate discharge of duty. It should be borne in mind that the "matters" referred to in s 21A(1) extend beyond the litany of aggravating or mitigating factors tabled in s 21A (2) and s 21A (3) and prudence would suggest making findings in accordance with the evidence in a particular case rather than commencing by referring to the content of those subsections as a type of checklist. 5 Interwoven into the remarks on sentence were references to some 26 reported and unreported legal authorities as well as recitation of extracts from statute and those additions tended to obscure the statement of reasoning which had been undertaken. Whilst, as I have said, I did not upon analysis find his Honour's remarks unduly cryptic, it is difficult to recognize remarks couched in such terms as fulfilling a primary duty of the sentencing judge to inform the offender in language which he is likely to understand of the reasons for the sentence then being imposed: R v King [2003] NSWCCA 352. There was a failure in that regard. 6 Notwithstanding that criticism, the whole of the facts and circumstances made no lesser sentence than that imposed appropriate. 7 HULME: On 9 February 2007 this Applicant for leave to appeal was sentenced by Taylor DCJ in respect of 2 charges to which he had pleaded guilty. The charges were that he had, on 18 October 2004, supplied heroin. The sentences imposed were:- Count 1 : Imprisonment for 2 years and 2 months, including a non-parole period of 12 months, both periods commencing on 19 September 2006; and Count 2 : Imprisonment for 7 years including a non-parole period of 4 years, both periods commencing on 19 March 2007. 8 The effective sentence imposed was thus of imprisonment for 7½ years including a non-parole period of 4½ years. 9 The quantity the subject of the first charge was an amount of 27.1 grams that his Honour found had been sold by the Applicant and a co-offender Nguyen to a person Dao who had attended the Applicant's house, left and was soon afterwards arrested in possession of that heroin. His Honour found that Dao had paid $8000 for the heroin. 10 The evidence did not establish with any precision the quantity the subject of the second charge. When arrested the Applicant was found in possession of various sums of money including the sum of $8,000 previously mentioned and a further amount of $60,000 which his Honour found was intended as the purchase price of some heroin the Applicant had agreed to on-supply. His Honour also found that at the time the price for 350 grams of heroin ranged between $95,000 and $140,000, a finding that leads to the conclusion that the heroin the subject of the second charge was not less than 150 grams. (In fact the police had intercepted telephone calls leading to the Applicant's involvement with this offence and in which quantities had clearly been discussed. However the discussions were in part in code and there was no direct evidence of the meaning of the code words used.) 11 The Applicant's offences arose pursuant to s25(1) of the Drug (Misuse and Trafficking) Act and each rendered the Applicant liable to imprisonment for 15 years. Had either amount exceeded 250 grams, the Applicant's offending would have fallen into a different category where the maximum penalty would have been 20 years. 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 would have been 2 years. 12 In mid-2004 police began intercepting and recording telephone conversations involving the Applicant and a number of other persons. Most of the calls used coded language and the mobile phone used by the Applicant and the subject of intercept was registered with false particulars. On 18 October 2004 the Applicant was the subject of police surveillance and following the arrest of Dao and the Applicant on that day searches of 2 separate premises used by the Applicant were conducted. One of those premises were observed by police to be "heavily fortified" and in it were found electronic scales, two silver press plates, an electric coffee grinder, a vacuum sealer, surgical gloves, face masks and a wet plastic bag containing a white residue, which was later tested and found to contain traces of quantities of monoacetlymorphine, morphine and codeine (substances that are derivatives of heroin). At the other premises, police found 2 bundles of 20 $50 notes and a plastic bag containing mannitol – a commercial sugar and non-toxic substance that is commonly used as a cutting agent for heroin. 13 In the Applicant's car the police found a bottle jack, the markings on the piston of which matched those found on the silver plates. There was evidence that the jack and plates were of a nature that was used for the pressing (or compressing) of heroin. The Applicant's possession of these various items contributed to his Honour concluding that the Applicant was engaged in a commercial enterprise. His Honour also found that the Applicant's motivation was greed and that his role in the drug hierarchy was a superior one. These findings were fully justified. 14 It is also to be noted that the Applicant pleaded guilty albeit this was 2 days after a voir dire hearing had commenced and 4 days after he was arraigned for trial. The plea was also in respect of only 2 of 4 charges preferred against him, the Crown electing to accept these pleas in full satisfaction of the indictment and to not proceed on 2 further charges, one of supplying on 18 October a commercial quantity of heroin and the second, of supplying between 18 August and 19 October 2004 a large commercial quantity of heroin. His Honour observed in this regard:- "This is not a plea at the earliest opportunity so as to attract the maximum 25% utilitarian discount ( R v Stambolis [2006] NSWCCA 56 paras 11-14). A discount of 20% is appropriate in this case given that the plea was entered after the offender was arraigned in the court for trial but prior to the completion of the voir dire and the empanelment of the jury." 15 Later his Honour added:- "I will just correct something I said earlier, a discount in the order of 15-20% is appropriate in this case. R v Blanco (CCA (NSW) 22 October 1987, unreported), R v Burnett (1996) 85 A Crim R 76: R v Atkins (CCA (NSW), 3 November 1998, reported)." (sic) 16 I have so far said nothing about the Applicant's subjective circumstances. A number of the grounds of appeal assert error in his Honour's approach to various aspect of these circumstances and it is convenient to defer the detail concerning these and then to deal with those grounds together after consideration of most of the others. 17 The grounds of appeal are:- i. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant's rehabilitation. ii. The sentencing Judge erred in assessing the Applicant's role in the offences and fell into error in accordance with the principles laid down in The Queen v De Somoni (1981) 147 CLR 383. iii. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant's strong subjective circumstances. iv. The sentencing Judge failed to take into account the applicant's contrition. v. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant's lack of any prior criminal history. vi. The sentencing Judge failed to take into account or take sufficiently into account, the sentences imposed on two co-offenders. vii. The sentencing Judge failed to take into account the mitigating factors on behalf of the Applicant as required by section 21A (3) of the Crimes (Sentencing Procedure) Act 1999. viii. The sentencing Judge failed to take into account the delay in sentencing, the delay in service of the police brief and the arduous bail conditions to which the Applicant was subjected. ix. The sentences were manifestly excessive.