Chen v R [2009] NSWCCA 157

New South Wales Court of Criminal Appeal

CITATION: Chen v R [2009] NSWCCA 157

HEARING DATE(S): 29 May 2009

JUDGMENT DATE: 10 June 2009

JUDGMENT OF: Giles JA at 1; Buddin J at 2; Harrison J at 28

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - on-going supply of methylamphetamine and supply methylamphetamine - possession of a prohibited weapon without a permit - significance of factual error in Agreed Statement of Facts - whether remarks on sentence disclosed error - whether sentence manifestly excessive

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

Adams v R (2008) 244 ALR 270 Ibbs v The Queen (1987) 163 CLR 447 CASES CITED : R v Kamminga [2003] NSWCCA 337 R v Smiroldo [2000] NSWCCA 120 Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Chen Chien Chen (Applicant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/9182

COUNSEL: G Walsh (Applicant) J Dwyer (Crown)

SOLICITORS: Greg Walsh & Co (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0565

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 29/08/2008

IN THE COURT OF CRIMINAL APPEAL 2008/9182

GILES JA BUDDIN J HARRISON J

WEDNESDAY 10 JUNE 2009 CHEN CHIEN CHEN v R Judgment 1 GILES JA: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty to three offences in the Local Court and adhered to those pleas when he appeared for sentence. 3 Count 1 alleged that the applicant on 3 or more separate occasions during a period of 30 consecutive days did supply methylamphetamine (commonly known as ice). That offence, which constituted a contravention of s 25A(1) of the Drug Misuse and Trafficking Act 1985, attracts a maximum penalty of 20 years imprisonment. Two further offences on a Form 1 document of supplying methylamphetamine were taken into account when the applicant was sentenced in respect of count 1. Count 2 alleged that the applicant supplied methylamphetamine by operation of the deeming provisions of the same legislation. That offence attracts a maximum penalty of 15 years imprisonment. Count 3 alleged that the applicant possessed a prohibited weapon (namely a Taser gun) without a permit. That offence attracts a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years is applicable to it. In respect of Count 1, and taking into account the Form 1 matters, the applicant was sentenced to a non-parole period of 4 years with a total term of imprisonment of 6 years 3 months. Fixed terms of 2 years imprisonment were imposed upon the applicant in respect of each of counts 2 and 3. Those sentences were ordered to be served concurrently with each other and with the sentence imposed in respect of count 1. 4 The matter proceeded by way of an Agreed Statement of Facts. It revealed that on 3 May 2007 investigators attached to the Asian Crime Squad of the State Crime Command set up a strike force in relation to the distribution of prohibited drugs. The operation, which had the applicant as its target, commenced following the receipt of information from numerous sources to the effect that the applicant was supplying ice. In due course, investigators were granted authority to lawfully intercept the mobile phone service operated by the applicant. Investigators also commenced physical surveillance of the applicant. 5 As a result of information which was gleaned from the intercepted telephone calls, police were able to ascertain the nature and extent of the applicant's illicit activities. What emerged was that the applicant obtained the ice from a number of alternative supply chains. He then mixed the ice with cutting agents, before supplying the finished product to an established customer base from a shop front which had been established at his residential address. The information also revealed that the applicant supplied the drugs on a daily basis for the purpose of financial gain. 6 From the intercepted telephone calls, police were also able to ascertain that the applicant supplied or agreed to supply ice on twenty-eight separate occasions during the course of the investigation. During the 30 day period from 20 June 2007 the applicant supplied or agreed to supply ice on twenty-four separate occasions (it was that conduct that gave rise to count 1). 7 At about 8 pm on 27 July 2007, the applicant was arrested in the vicinity of his unit. When police searched him they found that he was in possession of a small plastic bag containing 3.3 grams of ice. Police also seized $4,885 in cash which the applicant maintained he had borrowed from people whom he would not identify. When they searched the applicant's premises, police seized the applicant's mobile phone, 54.6 grams of cannabis leaf and 4 ecstasy tablets. They also seized a further 20.18 grams of ice (that seizure together with the 3.3 grams found in his possession gave rise to count 2). The applicant told police that he "smoked" the ice. Other drug paraphernalia, such as digital weighing scales, a large number of clear resealable bags, aluminium foil and various cutting agents were also located. Police also discovered the Taser gun and 47 rounds of live .22 calibre ammunition (count 3). The applicant declined an opportunity to be interviewed by police and was subsequently charged. 8 Based upon what could be ascertained from the intercepted telephone material, police estimated that the applicant supplied a minimum of 115.3 grams of prohibited drugs, predominantly ice, during the period between 20 June and 27 July 2007. The total sale value was estimated to have been a minimum of $28,800. 9 The following schedule, which sets out the various transactions that were discussed in the intercepted telephone material, was provided to the sentencing judge: Date Amount 20/6/07 NIL (unknown) 23/6/07 3.5 g ("a ball") 23-24/6/07 1 gr ("one") 26/6/07 28.4 gr (1oz) ("eight full one" "One full one for now") (calls on 24/6 arranging the amount) 26/6/07 Nil (unknown) 27/06/07 Nil (unknown) 27/6/07 1.5 gr ("three halves") 1/7/07 1 gr ("a really good one.") 3/7/07 3.5 gr ice ("the 900 one") 3-4/7/07 5 gr ("five little ones" "how much is that, seven, fourteen") 5/7/07 6gr 5/7/07 2gr ("two) 5/7/07 1 gr ("need one for client") – offer to supply 5/7/07 3.5 gr ("a ball") 6/7/07 0.5gr ("a halfa") 7/7/07 NIL (unknown) 13/7/07 3.5 gr ice ("three and a half people" It's one six") 14/7/07 0.5 gr ("half") 15/7/07 1 gr ("you want one") – offer to supply 17/7/07 1 gr ("we just need one though") 19/7/07 28.4g ("a full one") 19/7/07 Nil (unknown) 19/7/07 1 gr 20/7/07 1 gr ("one aeroplane") 21/7/07 3.5 gr 24/7/07 10 gr 26/7/07 7 gr ("give me 7" "1600") 27/7/07 3.5 g cocaine ("Charlie") – he is supplying it on. He is purchasing it to supply on. Total 115.3 gr 10 The supplies of 10 grams on 24 July and 7 grams on 26 July respectively, which appear in the schedule, gave rise to the two matters on the Form 1. 11 The sentencing judge concluded that the applicant was supplying "not only ice, but other drugs, and he did so on a scale which is in the scheme of things, fairly large". His Honour also found that the applicant "was running a regular business for the supply of drugs over a period which he said in evidence was up to six months, and although the quantity of drugs is perhaps not as great as has come before the courts on other occasions it is still significant". 12 The sentencing judge was provided with information about the applicant's background in a pre-sentence report and in a report prepared by a consultant psychologist, Stephen Woods. The applicant also gave evidence during the course of the sentence proceedings. 13 That material disclosed that the applicant was 31 at the time of the offence having come to Australia with his family at the age of 15 from Taiwan. He attended high school for several years but found the experience to be unsatisfactory. He married when he was 21 but is now divorced. There are two children from that relationship. The applicant trained as a baker and went into partnership with another man running bread shops. When the business failed, the applicant became depressed. The sentencing judge found that the applicant "started to use ice to deal with his depression [and that] that use developed into a serious addiction … the addiction led [him] into a situation where he began to supply ice to other people in order to get money for his own use of the drug." The applicant is one of three children. His older brother suffers from Downs Syndrome and now lives mainly in Vietnam with his father who has a business there. The applicant's mother lives in Sydney and is the primary carer for the applicant's brother when he is in this country. The evidence before the sentencing judge established that she had recently had a knee operation and that she suffers from macular degeneration. The applicant's incarceration prevents him from providing his mother with the assistance in caring for his brother which he would otherwise have been able to give. 14 The applicant, who was unemployed at the time of the offence, had no relevant prior criminal history. A discount of 25% was extended to him to reflect his early plea of guilty. The sentencing judge also referred to the fact that the applicant was serving, and was likely to continue serving, his sentence in protective custody. His Honour observed that, as a consequence, the applicant's access to recreational facilities and educational programs was somewhat restricted. Because he was one of only two Asians in that particular unit of the gaol, his Honour found that the applicant felt isolated particularly as he was also unable to obtain Asian food. His Honour made a finding of "special circumstances" although he did not give reasons for having done so. 15 The applicant notified that he wished to rely upon the following grounds of appeal: 1 That the sentence imposed by the Learned Sentencing Judge was too severe having regard to the objective and subjective circumstances of the offences. 2 That the sentencing Judge erred in finding that the appellant supplied ice on twenty-eight (28) separate occasions, usually half an ounce or an ounce. 3 That the Sentencing Judge erred in failing to afford a greater discount on sentence in respect of the appellant's assistance to authorities in combination with the offender serving his sentence in harsh conditions by virtue of that co-operation and his ethnicity. 16 At the hearing of the application, counsel for the applicant indicated that he would not be pressing ground 3.