Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dang v R [2014] NSWCCA 47 Hearing dates: 2 April 2014 Decision date: 09 April 2014 Before: Simpson J at [1] Davies J at [2] Adamson J at [3] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - appeal - alleging error based on exchanges in course of the hearing - relevance of secondary count being included in principal count - framing of charges under prosecutorial discretion - whether leave to appeal ought be sought on grounds contrary to concessions made before primary judge -whether procedural unfairness occurred when primary judge fixed non-parole period in excess of a prior indication - no denial of procedural fairness- whether sentence was manifestly excessive - caution to be exercised when drawing direct comparisons with other sentences Legislation Cited: Crimes Act 1900 (NSW), s 527C Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, s 21A Drug Misuse and Trafficking Act 1985 (NSW), s 25, s 25A Cases Cited: Button v R [2010] NSWCCA 264 Carroll v The Queen [2009] HCA 13 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 Koklas v R [2003] NSWCCA 302 Mulato v R [2006] NSWCCA 282 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 Tran v R [2007] NSWCCA 140 Weir v R [2011] NSWCCA 123 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Phong Dang (Applicant) Regina (Respondent) Representation: Counsel: D Barrow (Applicant) N Noman SC (Respondent) Solicitors: SE O'Connor, Legal Aid NSW (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/922590 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-03 00:00:00 Before: Syme J File Number(s): 2012/92259 Judgment 1SIMPSON J: I agree with Adamson J. 2DAVIES J: I agree with Adamson J 3ADAMSON J: The applicant seeks leave to appeal against the sentences set out below for offences under s 25(1) and s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) which were imposed by Syme DCJ following his plea of guilty: No. Section Offence Maximum Penalty Sentence Imposed 1 Section 25(1) DMTA Supply prohibited drug (heroin) on 22 March 2012 15 years imprisonment Imprisonment for a fixed term of 2 years and 6 months to date from 22 March 2012. A 25% discount was allowed for the plea of guilty. 2 Section 25A DMTA Supplying a prohibited drug on an ongoing basis between 7 March 2012 and 14 March 2012 20 years imprisonment Imprisonment for a term of 4 years and 6 months commencing on 21 August 2012 with a non-parole period of 3 years. The earliest date for release to parole is 21 August 2015. A 25% discount was allowed for the plea of guilty. Form 1, item 2 S 527C (1)(a) Crimes Act 1900 Goods in custody 6 months imprisonment Form 1, item 1 Section 25(1) DMTA Supply prohibited drug (heroin) on 14 March 2012 15 years imprisonment The sentence hearing before Syme DCJ 4The agreed facts were tendered and established the following. 5The applicant was a heroin user and seller. Between 7 and 14 March 2012 he sold the following amounts of heroin to undercover police officers after telephone calls initiated by the officers to arrange the transactions and the meeting places: No. Date Time Amount Sale price 1 7 March 2012 12.12 pm 0.08g $100 2 7 March 2012 12.28 pm 0.07g $100 3 8 March 2012 0.11g (49% pure) $100 4 14 March 2012 0.09 g $100 6After the last supply, police followed the applicant from Eddy Avenue, Sydney to Marrickville where they saw him throw a package out of his car that contained 18 foils of heroin with a total weight of 1 g. This charge under s 25(1) of the DMTA was the first item on the Form 1. 7One of the undercover police officers organised by telephone to purchase more heroin from the applicant on 22 March 2012. When the applicant arrived at Kings Cross, which was the pre-appointed place for the transaction, he was arrested. He was found to be in possession of 22 foils of heroin weighing 1.19g contrary to s 25(2) of the DMTA. This was the second offence for which he was sentenced. He was also in possession of $630 cash and a Nokia mobile phone. This charge of goods in custody under S 527C(1)(a) of the Crimes Act 1900 (NSW) was the second item on the Form 1. 8Upon arrest the applicant admitted to supplying heroin on an ongoing basis. He said he would buy 1.7g at a time and use 1g himself. He pleaded guilty in the Local Court. 9At the sentence hearing the Crown tendered a record of the applicant's previous convictions and the custodial records. These documents showed that the applicant had a lengthy criminal record. He had had three substantial periods in custody: from 31 May 2001 to 25 October 2005; from 1 November 2008 and 29 October 2010 and from 23 February 2011 to 22 August 2011. 10The applicant gave evidence at the sentence hearing that he was 32 years old and was born in Vietnam. The applicant's father was in gaol for several years during his childhood. He started taking drugs while still at school and was expelled before Year 12. When he was eighteen he started smoking heroin. He has a fourteen-year old son whom he had not seen recently because of his poor relationship with his ex-partner. He is a qualified baker. 11The applicant gave evidence that he was released from custody in August 2011 and began using heroin again. He had debts from his drug use and also gambling debts. He has not undertaken a drug rehabilitation programme. He was on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to be of good behaviour at the time of the offending. 12The following exchange occurred in the course of the applicant's evidence in chief: Q. Would you tell the court how you feel being back in custody now? A. At first relief, but stupid. Q. What do you mean you felt relief? A. Sort of put all that behind me you know the drugs, the debts, stuff like that. 13No pre-sentence report was tendered on behalf of the applicant at the sentence hearing. 14At the conclusion of the applicant's counsel's submissions on sentence, which were both oral and in writing, the sentencing judge asked her about accumulation. The applicant's counsel conceded that some accumulation would be appropriate. Her Honour noted that accumulation itself would provide a ground for special circumstances. At the conclusion of the Crown's submissions, her Honour proposed listing the matter for the passing of sentence on Monday 3 December 2012, the hearing having taken place on Friday 30 November 2012. 15After the date was fixed and Syme DCJ indicated that it was not necessary for counsel to be there since no further submissions would be required, the following exchange occurred: HER HONOUR: It will simply be a matter of giving reasons for decision and letting Mr Dang know how much longer he's going to be in custody. He's been in custody about eight months. I would think taking into account these two matters that another couple of years on the bottom is something that he can expect. Does anyone want to argue with that? SCHATTIGER [Crown]: No your Honour. HER HONOUR: Not too much. WILLIAMS [the applicant]: Your Honour I've handed up that schedule of comparative cases. I would submit that something in the range of eighteen months on the bottom would be within range for the reasons I've listed in that schedule. HER HONOUR: It depends what the special circumstances is. I think he's going to have a little more than that in custody. Therefore, the actual time, if it waits until Monday but Mr Dang that's what you're looking at, you're looking at a considerable more time in custody. I'll consider the submissions of counsel in relation to other matters and I'll deal with the actual sentence and the reasons for decision on Monday. Okay. Thank you sir. Issue a s 77 order for Monday. The remarks on sentence 16The sentencing judge assessed the objective seriousness of the offence of ongoing supply by reference to the circumstance of the offence and the applicant's acts, including the stock held and the sophistication of the enterprise. Her Honour said: "The offender was certainly a user of the drug heroin himself but I find this operation was more organised than an ad hoc supply of a street addict and was more like a one man retail business. The offender took phone calls on a telephone, he attended personally for the arranging of supply . . .As supply in each case this is a slightly higher level than a street level dealer although I note that the deals were conducted physically at street level this is a slightly more organised and sophisticated process. Therefore when considering the level of objective seriousness this is a serious offence certainly not nowhere near the mid-level range of seriousness if I was making a finding for the purpose of the standard non-parole period but a long way from a bottom range offence." 17The sentencing judge referred to the commission of the offences while the applicant was on a s 9 bond as an aggravating factor. His criminal record was referred to. 18Her Honour addressed the question of institutionalisation in the following terms: The offender's counsel in submissions to me told me that he was in danger of becoming institutionalised because of the long periods of time that he has spent in custody. The offender in his evidence in Court agreed that in the last ten years or so he has spent nearly as much time in custody as he has spent out of custody and he has been in custody for a considerable of period of time now. Therefore, if there is there is any danger of institutionalisation I am afraid it has already occurred. 19Her Honour found that she could not make the finding that the applicant was unlikely to re-offend and suggested that it might be beneficial for him to enter a restricted rehabilitation facility on his release in order to address his long-standing difficulties with drugs. 20The sentencing judge also noted the importance of general and specific deterrence, as well as rehabilitation when sentencing for offences of this nature. Her Honour allowed a discount of 25% for the utilitarian value of the plea. 21Her Honour addressed the question of special circumstances in the following terms: I propose to find special circumstances largely because I propose to accumulate these sentences when I pass them. The total sentences should reflect the approximate statutory ratio with some small amount of extra assistance given by way of a slightly longer parole period to reflect the need for rehabilitation and the need hopefully for the offender to use some of his parole time in residential rehabilitation. Application for leave to appeal 22The applicant sought leave to appeal on five grounds which will be considered in turn. Ground 1: Her Honour erred in finding that the offending conduct was slightly higher than a street level dealer and in her assessment of the objective seriousness of the offence 23Mr Barrow, who appeared on behalf of the applicant, sought to characterise the applicant's offending conduct as that of a drug user who was engaged in low-level supply for the purposes of funding his own use. Mr Barrow pointed to the lack of paraphernalia usually associated with organised drug supply, such as scales, ledgers or associations with a drug network. He contended that, although her Honour had noted that the applicant was a drug user, she had failed to accord significance to that fact when assessing the objective seriousness of the offending conduct. 24The applicant relied on the principle that, although the need to fund a drug habit was not a mitigating circumstance, the fact that the offence is motivated by such need may be relevant to objective seriousness in so far as it is germane to the level of planning of the offence, the existence or otherwise of another reason which might explain the offending conduct and the effect of drug withdrawal on the offender's capacity to exercise judgment: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273] per Wood CJ at CL. 25The Crown sought to support her Honour's finding by reference to the organised nature of the supply, which involved telephone calls to arrange a meeting place for the purposes of supply. The Crown also relied on the reliability of the applicant's fulfilment of such orders and his timely appearance at the meeting point to deliver the drugs in accordance with the arrangements he had made himself. 26I am not persuaded that there was any error in her Honour's finding. It is not the function of this Court to substitute its own view as to objective seriousness for that of the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ and at [46] per Simpson J). Although this Court may, if it finds that the characterisation made by the sentencing judge was not open, form a different view as to where, in the objective scale of offending, the offender's conduct stood, this Court is bound by the sentencing judge's findings of facts, to the extent to which they are not challenged: Carroll v The Queen [2009] HCA 13 at [24]. 27Her Honour's finding that the applicant's role was slightly higher than that of a street dealer was, in my view, open on the evidence and a matter that was pre-eminently a matter for her Honour. Such a classification is a matter of nuance and impression. However, the agreed facts as to what occurred showed a level of organisation that was, in my view, consistent with her Honour's finding. This ground is not made out. Ground 2: her Honour erred in not taking into account the risk of institutionalisation on the basis that it had already occurred 28The evidence before her Honour established that the applicant had spent over eight and a half years in custody during the previous eleven and a half years, comprising three sentences and the period on remand since his arrest. He was 32 years of age. 29Mr Barrow contended on behalf of the applicant that her Honour erred in regarding the applicant's evidence that he felt relief when he was returned to custody as being an indication that he was already institutionalised. Mr Barrow relied on the following passage in the exchange between the applicant's counsel and the sentencing judge to make good the submission: WILLIAMS: .....The other basis on which I would submit that your Honour could make a finding of special circumstances would be the risk of institutionalisation for someone, who as your Honour has pointed out, has spent the best part of his twenties in and out of custody and your Honour heard evidence that when he was arrested on this occasion he felt a certain amount of relief because -- HER HONOUR: Which would indicate that he's probably already institutionalised. How does that help? WILLIAMS: The reason it helps is in my submission that he needs a longer period of supervision in the community so that the things that he benefits from in custody like structure and supervision can be carried on in the community and continued for a longer period of time with consequences if he's unable to comply. 30Mr Barrow contended that, although there was a basis in the evidence for the applicant's submission before the sentencing judge that there was a risk of institutionalisation, there was no proper basis in the evidence for a finding that it had already occurred. He submitted that such a finding would require expert opinion from a psychologist or psychiatrist and that no such evidence was available to the sentencing judge. 31I do not accept the applicant's submissions. The remarks on sentence show that her Honour was concerned about the amount of time the applicant had spent in custody and the prospect that institutionalisation had already occurred. The risk of institutionalisation was put forward by the applicant as a reason for a finding of special circumstances. Her Honour adjusted the statutory ratio consistent with a finding of special circumstances. The following statement in the remarks on sentence appears to me to be no more than a realistic appraisal made on the basis of the documents tendered and the sentencing judge's assessment of the applicant: "Therefore, if there is any danger of institutionalisation I am afraid it has already occurred." 32A substantial part of Mr Barrow's submissions in support of this ground relied on his reading of the transcript of the sentence hearing and her Honour's responses to propositions put in oral argument. The practice of alleging error based on such exchanges is to be discouraged. It is an important part of procedural fairness that a judge will, at times, express views in the course of oral argument. However, judgment is necessarily suspended until all evidence has been adduced and all submissions made. Only then can all matters be considered, a decision made and reasons for decision given in the remarks on sentence. The remarks comprise the reasons. The reasons are not to be discerned from the exchanges in the course of the hearing, since the latter may constitute no more than the articulating of a proposition propounded for the purposes of argument and, at best, the expression of a preliminary view. 33Ground 2 is not made out. Ground 3: the sentencing judge erred in partially accumulating the sentences or by accumulating them by a period of 5 months 34Mr Barrow submitted that the second offence of supply was so closely associated with the ongoing supply offence that the sentences ought to have been wholly concurrent. He contended that the concession made by the applicant's counsel at the sentence hearing ought not to have been made, in circumstances where there was a continuing course of conduct. He also submitted that the count under s 25(1) could have been charged as part of the conduct under s 25A and that, accordingly, any degree of accumulation was erroneous. He also contended, in the alternative, that if there was to be accumulation it ought to have been for a lesser period than five months. 35The Crown submitted that any sentence for the offending in the principal count (s 25A) had to take into account the offences on the Form 1, one of which was a deemed supply of 1 g. However, it contended that because the secondary count (s 25(1)) concerned the separate offence of deemed supply, it could not be included in the principal count of ongoing supply. The Crown argued that because of the separate criminality it was open to the sentencing judge to accumulate the sentences for both offences to some degree and that five months was an appropriate degree of accumulation. 36There is no general rule that determines whether sentences ought be dealt with concurrently or consecutively, this determination being a matter pre-eminently within the discretion of the sentencing judge, subject to the principle of totality which is an overriding principle by reference to which sentences are to be measured: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308 (McHugh J). 37The framing of charges is a matter that concerns prosecutorial discretion. The need to prove, for a count under s 25A(1) of the DMTA, the additional element that the supply was "for financial or material reward" may have provided a reason for distinguishing between the actual supplies, that were covered by the principal count, and the deemed supply of heroin (arising from the quantity) that was the subject of the secondary count under s 25(1) of the DMTA. 38Whether the deemed supply was included in the principal count (and therefore made the offending conduct on that count more serious), or charged as a separate count is, however, immaterial to the overall criminality of the offending conduct which is necessarily constant, however the charges are framed. Accordingly, this issue need not be considered further. 39It would have been open to the sentencing judge in the present case to make the sentences wholly concurrent having regard to the close relationship between the criminality of the principal and the secondary count. However, it was also open to her Honour to accumulate the sentences for the two offences, as the applicant's counsel at the sentence hearing, in my view, properly conceded. 40In Zreika v R [2012] NSWCCA 44 (Zreika), at [83] Johnson J (McClellan CJ at CL agreeing) referred to: "the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance." 41Although there are occasions where matters not raised or conceded on behalf of an applicant at the sentence hearing will nonetheless give rise to errors which can be corrected by this Court, it is generally undesirable for leave to appeal to be sought on grounds which are contrary to concessions made before the primary judge, unless there are exceptional circumstances: Zreika at [81] per Johnson J. It was not suggested, nor could it have been suggested, that there were exceptional circumstances in the present case. 42I am unable to detect any error in the exercise of her Honour's discretion. Accordingly, the third ground has not been made out. Ground 4: the sentencing judge erred in departing from her stated intention of imposing "a couple of more years" on the applicant without notice to the parties 43The applicant submitted that because her Honour had indicated an intention of adding two more years to the time in custody, there was a denial of natural justice when her Honour fixed a non-parole period in excess of that indication and that the sentence was therefore erroneous in law. Mr Barrow relied on Weir v R [2011] NSWCCA 123 (Weir) at [64]-[67] and Button v R [2010] NSWCCA 264 (Button) at [14]-[18]. 44The Crown contended that questions of procedural fairness are to be considered as a matter of substance and that there was, in the circumstances of the instant case, no denial of natural justice since the submissions of both parties had concluded and there was nothing more that could be said when her Honour gave the indication. 45The question whether a party has been denied an opportunity to be heard, being a matter of substance, must be determined by reference to the circumstances during the proceedings. The real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam) at [34] per Gleeson CJ. Commonly, unfairness will arise where someone has been deprived of the opportunity to make submissions or has failed to make submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker. 46A denial of procedural fairness was found to have occurred in Weir where, following the sentencing judge's indication that he was "highly likely" to impose a sentence of the order foreshadowed, the offender's representative did not make any further submissions on sentence. When the sentencing judge delivered a sentence that was significantly longer, the sentence was set aside on the basis of denial of procedural fairness. In Button, the sentencing judge commented in the course of the hearing that, given the applicant's status as a first-time offender and his strong prospects of rehabilitation, "release after one year in jail and perhaps 18 months or two years on parole" would be appropriate. The judge later imposed a significantly longer sentence. This Court found that there had been a denial of procedural fairness. 47In the present case, the indication from the Bench came after both parties had had an opportunity to address her Honour on all matters and had availed themselves of that opportunity. The present case is to be distinguished from cases such as Weir and Button or cases, where a judge has given an early indication that a custodial sentence will not be imposed and has subsequently imposed a custodial sentence. In those circumstances, the offender has a legitimate grievance that he or she has, by the judge's indication, been denied the opportunity of addressing the Court on why a custodial sentence ought not be imposed. 48In the present case, there was no denial of procedural fairness. Ground 4 has not been made out. Ground 5: the sentences imposed are both individually and in total manifestly excessive 49Mr Barrow submitted that the sentence was manifestly excessive since the applicant was engaged in systematic, low-level drug dealing at street level. The applicant had not been previously convicted of supplying prohibited drugs but had a lengthy criminal record and a long history of drug addiction. Mr Barrow pointed out that when one takes account of the 25% discount for the plea, the starting point for the principal count (s 25A of the DMTA) was six years and the starting point for the secondary count (s 25(1) of the DMTA) was three years and four months. 50In support of ground 5, Mr Barrow referred this Court to two decisions of this Court and also a sentence imposed by Wells DCJ in respect of an offender whom he contended was similar to the applicant. 51Mr Barrow relied on Koklas v R [2003] NSWCCA 302 (Koklas) in which this Court dismissed an offender's appeal against sentence. The offender had not previously been in custody. He was described as a "runner" and "street dealer" and was subjected to threats of violence if he was not efficient in the supply operations. He became involved to feed his own drug habit. There were favourable subjective circumstances in that the offender grew up in a supportive family environment, had regular work and was leading a productive life until his addiction to hard drugs. 52Mr Barrow also relied on Tran v R [2007] NSWCCA 140 in which this Court dismissed an appeal against sentence by Tran. He was found to have been operating a commercial business above that of a street level dealer. Like the applicant, he was sentenced for an offence under s 25A of the DTMA (supplying four lots of 5 g of heroin and then a further amount of 56 g of heroin) and an offence under s 25 of the DTMA (being in possession of a further 75 g of heroin when he was arrested). Tran's total effective sentence was four years and six months, with an effective non-parole period of three years. 53Mr Barrow relied on a decision of Wells DCJ in which her Honour sentenced Bakker, who had been arrested on the same day as the applicant by an officer who was connected with the same strike force. There were some similarities in the conduct. Bakker was sentenced to a term of two years' imprisonment with a one-year non-parole period. Mr Barrow did not submit that the principles of parity applied. 54Like manifest excess, manifest inadequacy is a conclusion that does not require identification of a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] (Gleeson CJ and Hayne J). The determination of the fifth ground requires the conclusion to be examined. 55Care must be taken in drawing direct comparisons between sentences passed, those to be passed and those which are, or have been, the subject of appeal: see generally, Hili v The Queen; Jones v The Queen [2005] HCA 45; (2010) 242 CLR 520 at [53]- [56] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Sentencing requires the exercise of discretion. The factors that are germane to the exercise of the discretion include deterrence, both general and specific, rehabilitation and punishment. The exercise of the discretion requires consideration of objective circumstances (the seriousness of the offending conduct) as well as subjective circumstances pertinent to the offender. The number of factors to be taken into account as either mitigating or aggravating under s 21A of the Crimes (Sentencing Procedure) Act 1999 provides an indication of the complexity of the exercise and the concomitant difficulty of identifying "comparable cases". Although it is orthodox for such cases to be identified for the benefit of the sentencing judge, they can be no more than a guide. 56I do not consider the sentence imposed to be outside the range within which the sentencing judge's discretion could properly be exercised. The result does not indicate that the discretion miscarried. Proposed orders 57The orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed. ********** 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: 10 April 2014