R v CHIA [2011] NSWDC 237

District Court New South Wales

Medium Neutral Citation: R v CHIA [2011] NSWDC 237 Hearing dates: 2 December 2011 Decision date: 02 December 2011 Before: Berman SC DCJ Decision: For the first offence of supply prohibited drug sentenced to a fixed term of imprisonment for 3 months. For the second offence of supply prohibited drug, taking into account matters on a Form 1, impose a non-parole period of 6 months and a period of eligibility for parole of 6 months. Both sentences are to be served concurrently. The offender is referred for assessment as to his suitability to serve his sentence by way of Home Detention Catchwords: CRIMINAL LAW - Sentence - Supply prohibited drug - Possession for the purpose of supply - Proceeds of crime - Ecstasy - Cannabis leaf Category: Sentence Parties: The Crown John Mark Chia Representation: Director of Public Prosecutions Nyman Gibson Stewart - The Offender File Number(s): 2011/5211

SENTENCE 1HIS HONOUR: John Chia was detected by police on 1 January as being a drug supplier. They went to what I gather was a music festival in the Domain. Police are fully aware that such music festivals often involve people using drugs such as ecstasy and so they closely observed the goings on. They saw some suspicious activity involving the offender and a man whose name turned out to be Alistair Ross. Police thought they observed a drug supply transaction and investigations proved that to be the case. After they saw Mr Chia hand something to Mr Ross and Mr Ross hand something back they stopped both people. They searched Mr Chia and found $390. They looked at his telephone which revealed incriminating messages, such as, 'Hey, mate, I want ten. Where are you?' They spoke to Mr Ross who told them that the offender had sold him six tablets of ecstasy for $150. 2The facts as I have recited them so far relate to the first offence of supplying a prohibited drug, that is the actual supply to Mr Ross of the six tablets of ecstasy totalling 1.81 grams. They also relate to a matter on a Form 1. The $390 which was found in Mr Chia's possession is suspected to be and clearly is the proceeds of crime, namely drug supply. Police also found when searching Mr Chia a key to a Honda motor car. They asked Mr Chia how he got to the Domain and he lied to them. He told them he had caught a train. Not surprisingly police did not believe him. They searched the surrounding area and located a Honda car that matched the key they had found in Mr Chia's possession. They searched it and they discovered forty-nine and a half further tablets of ecstasy that looked exactly the same as those that Mr Ross had purchased from the offender. They also discovered a small quantity, slightly more than half a gram, of cannabis leaf. The drugs found in the car relate to the second offence of supply for which the offender is to be sentenced, that is an allegation that he had 49.5 tablets weighing 14.8 grams in his possession for the purpose of supply. The possession of cannabis leaf also appears on the Form 1 to be taken into account when I sentence Mr Chia for the second of those drug supply matters. 3Mr Chia is really too old to be conducting himself as he was. He was born in 1959. He grew up in a home that was marred by domestic abuse, mostly afflicted upon his mother by an abusive father. Mr Chia's father died when he was eighteen and, in contrast to what would usually be expected, this was something of an advantage because it lifted the burden of violence that Mr Chia had experienced for the majority of his childhood. 4He has worked regularly, although his most recent work has been in the security industry. Because you need a licence to do that and because of the charges that he faces, he has had difficulty performing that work over recent times. He has been married, but separated from his wife about eight years ago. He is the primary carer of two of the children from that relationship. The offender's seventeen-year-old daughter lives with her mother but every weekend she lives with the offender. 5Mr Chia's history reveals that he has had problems with his addictions to various things over the years, whether it be attendance at a gym or more recently gambling. He was able to overcome his addiction to the gym by himself, but his problems with gambling have been harder to deal with. I do not find this surprising at all. Despite the efforts of publicists for various forms of the gambling industry we judges know the significant problems that gambling causes for many in the community. We see the results of the efforts of the providers of gambling to encourage addiction in problem gamblers, whether it be by carefully designed poker machines or more traditional forms of advertising. The incessant promotion of gambling even during football commentary these days creates enormous problems when people such as Mr Chia attempt to overcome their gambling addiction. Every time people such as Mr Chia achieve a measure of rehabilitation there is the risk that that would be undone as gambling addicts are bombarded with reminders of the supposed joys that gambling can bring. 6Notwithstanding that, of course Mr Chia's decision to gamble is a matter of his personal choice. He only ultimately has himself to blame for giving in to his desires to gamble recognising as he does that this has caused financial hardship. These offences are related to his financial situation. The offender bought the drugs in bulk and was selling them at a small profit in order to make money. He was a drug user too so he is not in that category of offending of a non-user dealer, which has been traditionally regarded as the most serious form of dealing. His finances were so bad that he was paying twenty-seven per cent per annum interest on his credit card. These offences appear to represent the culmination of a downward spiral. Since being charged the offender has taken some perhaps belated steps to overcome the problems that he faces. 7The Crown submissions started with the well known proposition that those who traffic to a substantial degree must ordinarily expect full-time custodial sentences. I do not consider that it could be said that Mr Chia was trafficking to a substantial degree. There is but one occasion, 1 January, on which Mr Chia was trafficking. That means that exceptional circumstances do not have to be demonstrated before a sentence other than full-time custody is imposed. 8Ms Anderson submitted that the appropriate sentence would be a sentence of imprisonment that was suspended. Given the length of the sentence I have decided to impose, that option is available. But I am not going to do that because I consider that there needs to be an element of punishment. The courts cannot ignore the realities of the consequences for an offender of a suspended sentence which, if the offender manages to serve the period of suspension without committing a further offence, (something all members of the community are obliged to do anyway,) involve no punishment. On the other hand I do not consider that a full-time custodial sentence is required. I have determined that the most appropriate outcome is a sentence of home detention. Neither the Crown nor Ms Anderson spoke in opposition to that order. 9For the first offence of supply that relates to the actual supply to Mr Ross, the offender is sentenced to imprisonment. I set a fixed term of three months. For the second offence of supply, taking into account the matters on the Form 1, I set a non-parole period of six months and a period of eligibility for parole of six months making a total sentence of twelve months. Both of those sentences are to be served concurrently. 10Before imposing sentence, however, formally, I refer Mr Chia for assessment as to his suitability to serve those sentences by way of home detention and I continue his bail in the meantime so that assessment can be made. 11That means Ms Anderson we will not be able to do this until the new year. 12ADJOURNED TO FRIDAY 24 FEBRUARY 2012 AT 2PM