Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cao v Regina [2013] NSWCCA 321 Hearing dates: 09/12/2013 Decision date: 16 December 2013 Before: Hoeben CJ at CL at [1] Simpson J at [38] Hall J at [39] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - supplying a prohibited drug and possession of firearms offences - whether sentence manifesting excessive - no specific error identified but accumulation of sentences challenged - no error of principle - appeal dismissed. Legislation Cited: Drug Misuse and Trafficking Act 1985 Cases Cited: Ayshow v R [2011] NSWCCA 240 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 House v The King [1936] HCA 40; 55 CLR 499 R v Amurao [2005] NSWCCA 32 R v Dusan Krstic [2005] NSWCCA 391 R v Najem [2008] NWCCA 32 Category: Principal judgment Parties: Van Vinh Cao - Applicant Regina - Respondent Crown Representation: Counsel: Mr G James QC/Mr W Chan - Applicant Ms V Lydiard - Crown Solicitors: Oxford Lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2012/42315 Decision under appeal Date of Decision: 2013-03-20 00:00:00 Before: Armitage DCJ File Number(s): 2012/42315 Judgment 1HOEBEN CJ at CL: Offences and sentence On 20 March 2013 the applicant pleaded guilty to the following charges: Sequence 1 - Supply a prohibited drug on an ongoing basis (methylamphetamine) contrary to s25A of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 20 years. Sequence 10 - Supply a prohibited drug in not less than a commercial quantity (methylamphetamine) contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 20 years with a standard non-parole period of 10 years. Sequences 2 and 3 - Possess a prohibited weapon without permit, contrary to s7(1) of the Weapons Prohibition Act 1998 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years. Sequence 4 - Possess an unauthorised pistol, contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years. Sequence 5 - Possess an unauthorised prohibited firearm, contrary to s7(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 14 years with a standard non-parole period of 3 years. 2On a Form 1 there was a charge of possession of ammunition without authority, contrary to s65(3) of the Firearms Act 1996 which carries a maximum penalty of 50 penalty units or a $5,500 fine and two charges of having goods in custody reasonably suspected of having been stolen, contrary to s527C(a) of the Crimes Act 1900, which carries a maximum penalty of 6 months imprisonment. These Form 1 matters were taken into account when sentencing for the Sequence 1 offence. 3The applicant was sentenced as follows: Sequences 2 and 3 - Imprisonment with a non-parole period of 18 months to date from 8 February 2012 and expire on 7 August 2013, with a balance of term of 18 months to expire on 7 February 2015. Sequence 4 - Imprisonment with a non-parole period of 18 months to date from 8 August 2012 and expire 7 February 2014, with a balance of term of 18 months to expire on 7 August 2015. Sequence 5 - Imprisonment with a non-parole period of 18 months to date from 8 February 2013 and expire on 7 August 2014, with a balance of term of 18 months to expire 7 February 2016. Sequence 1 and taking into account the Form 1 - Imprisonment with a non-parole period of 18 months to date from 8 August 2013 and expire 7 February 2015, with a balance of term of 18 months to expire on 7 August 2017. Sequence 10 - Imprisonment with a non-parole period of 3 years to date from 8 February 2014 and expire on 7 February 2017, with a balance of term of 3 years to expire on 7 August 2020. 4The total effective sentence was 8½ years imprisonment, with a non-parole period of 5½ years to date from 8 February 2012 and expire on 7 August 2017 with the balance of term expiring on 7 August 2020. 5The starting point for the overall sentence was 11 years and 4 months imprisonment from which his Honour took off 25 percent for the pleas of guilty, thus resulting in the net sentence set out above. 6The applicant relies upon a single ground of appeal: Ground of Appeal - that in all the circumstances the sentence was manifestly excessive. Factual Background 7In January and February 2012 Blacktown Detectives investigated the supply of crystal methylamphetamine in the Doonside area. As part of the investigation, a warrant for the interception of a certain telephone number used by a Melchor Loteria was obtained. A large number of telephone calls and messages between Loteria and the applicant on a particular telephone number were recorded relating to the supply of methylamphetamine via the applicant to Loteria. Loteria on-sold the majority of the methylamphetamine obtained to other purchasers. 8Between 17 January 2012 and 7 February 2012 on 39 occasions the applicant sold a total of 127 grams of methylamphetamine to Loteria. Those are the agreed facts in respect of the offence of ongoing supply of a prohibited drug. 9On 8 February 2012 the applicant was driving a certain vehicle in Canley Heights when police stopped it and arrested him. He had 5 satchels of crystal methylamphetamine in his front shirt pocket containing a total of 12 grams. The applicant had 1 mobile telephone in his left pants pocket and a further 9 mobile telephones, 1 Westpac Handycard in his name; 5 Commonwealth Bank Keycards in his name, 1 Visa Debit Card in the name of Tuan Nguyen and an extendable baton in the vehicle. A black wallet containing $3,200 in Australian currency and $301 in US currency was also located in the vehicle. 10The applicant was transported to the Cabramatta Police Station, where he participated in an electronically recorded interview and made full admissions to supplying the prohibited drug crystal methylamphetamine (ice) to Loteria, usually on a daily basis. He said that he purchased the drugs for $7,500 per 28 grams (1 ounce) and would sell it for $12,000 for 3.5 grams, making a profit of $2,100 per 28 grams of the drug. 11After completion of the interview, the applicant was taken to his home at Canley Heights where a search warrant was executed. The applicant took investigators to a locked room where he identified an esky containing resealable bags of crystal methylamphetamine, a cupboard containing resealable bags of crystal methylamphetamine, an extendable baton and an unloaded .22 long calibre rifle Jennings J-22, a self-loading pistol and 6 rounds of ammunition for this firearm, a .32 automatic calibre double-barrelled key-ring style firearm and 2 rounds of ammunition for this firearm, 3 digital scales and 4 black balaclavas. The contents of the 141 resealable bags were analysed and found to contain a total of 749.6 grams of methylamphetamine. Proceedings in the District Court 12The sentencing judge noted that the applicant was born in February 1980. He had a record of some minor criminal offences comprising damaging property by a firearm, common assault, stalking and intimidating with intent to cause personal injury and destruction of property. His Honour assessed that record as "relatively insignificant" and treated it as a mitigating factor. 13His Honour had before him a pre-sentence report, dated 13 December 2012. That recorded the applicant as saying that he committed the offences due to his parents' gambling debts. His Honour did not accept that explanation and concluded that since the applicant was not himself a drug addict, the offending was partly for the purpose of meeting his parents' gambling debts and partly to gain personal profit. 14The applicant did not give evidence in the sentence proceedings, but his brother did. His evidence was that the applicant was born in Vietnam and came to Australia from a refugee camp in Malaysia. He was bullied by other students in Australia when he went to school, owing to his lack of English. The applicant had been gainfully employed since leaving school in a gardening business. The applicant did not report any financial stresses of his own to the writer of the pre-sentence report. 15When asked to explain his offending, the applicant said that his sole focus was to keep his family safe and repay their debts. He said that he had the firearms in order to protect himself as he was out of his depth. The applicant's brother gave evidence that the purpose of the possession of the firearms was to protect the applicant against his ex-wife who was asking for money. His Honour did not accept that explanation and concluded that the applicant kept the weapons in order to protect himself when dealing with large amounts of drugs. He did, however, accept that the applicant was "out of his depth". 16His Honour had before him an analysis certificate which described the methylamphetamine involved in the supply of a commercial quantity charge as having a purity of 79 percent. His Honour accepted that this went to the criminality of the offence of supply of a commercial quantity. Statistics in relation to various offences were placed before his Honour and he endeavoured to take those into account when formulating the sentences which he imposed. His Honour accepted that the statistics gave some idea of the general range of sentencing for offences of the type before him. 17His Honour had before him a psychological report from Mr Mark Howard. In that report, the applicant described himself as being relieved when he was caught. His Honour said: "That is to his credit because I think the true situation is that he was, as he told the writer of the pre-sentence report, "out of his depth", and realised that he was in the hands of serious criminals and wished to escape, and that the only way of doing so was to be arrested and sentenced for the current matters. That is to his credit." (ROS 10.7) 18Counsel for the applicant in the sentence proceedings conceded that there was a need for some accumulation of sentences. He suggested that the offences were mid-range. His Honour agreed with that assessment, except in relation to the supply of a prohibited drug in not less than a commercial quantity offence. His Honour regarded that offence as above mid-range. 19His Honour noted the following matters which were put to him to mitigate the applicant's offending. The applicant had made full and frank admissions when arrested. At no time during the ongoing supply offences had the applicant been armed with any of the firearms which were found at his house. There was no suggestion that he was armed at other times when drug dealing. It was put as a significant matter that when arrested, the applicant had no weapons in his possession. Accordingly, his Honour accepted that the applicant did not carry a gun or guns when drug dealing. 20The Crown conceded that remorse was an available finding, despite the fact that the applicant did not give evidence. The Crown accepted that such an inference could be drawn because of the applicant's full disclosure of his offending in his record of interview and because of his plea of guilty at the earliest opportunity. His Honour accepted that the applicant had displayed some degree of remorse and had taken a degree of responsibility for his offending. 21In relation to the objective seriousness of the offences, his Honour noted that the offence of supply of a commercial quantity of a prohibited drug was substantially above the threshold of 250 grams. His Honour noted that although the amount of a drug involved in an offence was not the only aspect to be taken into account when assessing criminality, it still remained a significant factor. The presence of the methylamphetamine in a large number of bags reinforced his Honour's conclusion that the applicant was involved in a significant selling enterprise. His Honour found that offence to be above mid-range, although not much above it. On that issue, his Honour noted that the maximum penalty and non-parole period were guideposts in the sentencing process. 22His Honour said that he did not apply the standard non-parole periods to any of the offences because of the pleas of guilty and because of the favourable subjective factors in the applicant's case. Although there were 39 supplies in the ongoing supply charge, his Honour was not prepared to find that the objective seriousness of that offence was above mid-range. In that regard, his Honour took into account that the quantity involved in each supply was small. Submissions 23The applicant accepted that there was no clear error of principle in the sentencing judge's reasons. Nevertheless, he submitted that the size of the sentence was such as to indicate underlying error. By reference to House v The King [1936] HCA 40; 55 CLR 499 the applicant submitted that upon the facts the total sentence was unreasonable or plainly unjust so that this Court should infer that in some way there had been a failure to properly exercise the sentencing discretion and the sentence should be reduced. 24The applicant submitted that there was a material error in the sentencing process, having regard to the sentencing judge's factual findings and the sentence ultimately imposed, even though that error could not be identified with precision. In those circumstances, the applicant submitted that leave should still be granted and the appeal upheld on the basis that a lesser sentence was warranted in law and should have been passed. 25The applicant sought to identify error by reference to his Honour's observation that the quantity of methylamphetamine in the commercial quantity offence was approaching the threshold for the more serious offence of supplying a large commercial quantity. The applicant submitted that this was a misleading and irrelevant consideration. 26The applicant submitted that although his Honour identified as his starting point a total sentence of 11 years and 4 months, the real starting point must have been much higher otherwise his Honour could not have taken into account the applicant's strong subjective case. The applicant suggested a starting point of 14 years or more which he submitted was excessive for these offences. 27The applicant submitted that his Honour's finding of mid-range objective seriousness for most of the offences and slightly above mid-range for the supply of a commercial quantity offence, resulted in mid-range sentences. This of itself, the applicant submitted, was indicative of error. As a result this Court should infer that the sentences and non-parole periods imposed were affected by error and were manifestly excessive. In the alternative, even if individually the sentences were appropriate, the accumulation and the ultimate effective sentence were manifestly excessive. Consideration 28The applicant had difficulty in articulating the error relied upon. This is not surprising. As was said by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]: "61 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." 29To the extent that the applicant did articulate error, he did not challenge the individual sentences but rather the extent of the accumulation and the total effective sentence ultimately imposed. 30The matters for which the applicant was being sentenced were very serious offences. The items found in the applicant's home, taken with the facts surrounding the ongoing supply offence, made it clear that the applicant had a well established business of supplying the extremely dangerous and destructive drug, ice. 31In relation to the offence of supplying a commercial quantity, his Honour did not err by noting that the quantity of drug was three-quarters of the threshold required for the more serious offence of supplying a large commercial quantity. In making that observation his Honour was doing no more than highlighting the fact that the amount of drug involved was substantial and well above the threshold for the offence of supplying a commercial quantity. The amount of drug involved, while not being solely determinative of seriousness, is a significant factor when assessing criminality in drug supply. 32The firearm offences also involved a significant level of criminality. In Ayshow v R [2011] NSWCCA 240 Johnson J (with whom Bathurst CJ and James J agreed) at [64] - [73] referred to the policy reasons behind s7(1) Firearms Act 1989 and matters relevant to the seriousness of the offence. His Honour said that the use or purpose of possession of an unlicensed firearm - particularly where it is connected with criminal activities - was regarded as a key factor in assessing the seriousness of offences contrary to the Act. 33In R v Dusan Krstic [2005] NSWCCA 391 Latham J (with whom Sully and RS Hulme JJ agreed) said at [14]: "14 ... In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se. ..." 34Part of the rationale behind s7(1) was explained by RS Hulme J (with whom in Beazley JA and Latham J agreed) in R v Najem [2008] NSWCCA 32 at [40]: "40 ... That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others' rights." 35This Court has said on a number of occasions that an offender's criminality is more serious where he or she possesses a firearm as part of their involvement in crimes, such as trading in illegal drugs. In R v Amurao [2005] NSWCCA 32 at [69] RS Hulme J said: "69 ... It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law." This is particularly so in relation to the possession of a concealed weapon such as the key-ring pistol which was not capable of lawful use. 36Once the objective seriousness of the offences and moral culpability associated with their commission is appreciated, some measure of accumulation between them was required. This was conceded by counsel appearing in the sentence proceedings. The extent of the accumulation was a discretionary matter for assessment by the primary judge. In this case the extent of the accumulation was modest, given that the offences were discrete and serious. Applying the test of manifest excess approved in Dinsdale, i.e., whether a sentence was "unreasonable or plainly unjust" it is clear that the sentences imposed in this case did not satisfy this test. 37The orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 38SIMPSON J: I agree with Hoeben CJ at CL. 39HALL J: I agree with Hoeben CJ at CL. ********** 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. Decision last updated: 08 January 2014