R v Chang [2014] NSWDC 297

District Court New South Wales

Medium Neutral Citation: R v Chang [2014] NSWDC 297 Decision date: 03 October 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years. Catchwords: CRIMINAL LAW - particular offences - drug offences - supply prohibited drug - heroin - commercial quantity - undercover police operation - no evidence of capacity to supply the drugs - satisfied beyond reasonable doubt of intention to supply - not a "rip off" - sentence - relevant factors - no prior criminality - offence committed while on bail - gravity of offence - lower end of range of objective seriousness - did not involve drugs going into the community - response to charges - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - first time in custody - custody in a foreign country - limited English - few visitors - aggregate sentence Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 39P Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Cases Cited: R v DW [2012] NSWCCA 66 Category: Sentence Parties: Regina (Crown) Chun-Chi Chang (offender) Representation: Counsel: L Brasch (offender)

Solicitors: Office of Director of Public Prosecutions (Crown) File Number(s): 2013/00373224

Judgment 1. I am sentencing Chun-Chi Chang. He has pleaded guilty to two serious crimes. Both of them are supplying heroin, one of them in a commercial quantity. Supplying heroin is an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum of 15 years' imprisonment. 2. Supplying the same drug in a commercial quantity is an offence against subs (2) of the same section. Parliament has fixed a maximum of 20 years imprisonment to that offence. Not only that, Parliament regards that crime as so serious that it has fixed a standard non-parole period of ten years imprisonment to that crime. 3. Mr Chang pleaded guilty at the first opportunity. In this State he gets a significant benefit for that. The ultimate sentence which I impose will be reduced by 25% because of his assistance to the administration of justice. 4. First I should say something about what happened which brought about the charges. They are set out in a statement of facts contained in exhibit A. There was a police undercover operation. Two men were involved - a police informer and an undercover police officer. The three men met in the Auburn RSL car park on 3 December 2013. The undercover officer bought two and a half grams of heroin from Mr Chang for $1,500. That sale amounts to the first offence. The facts say that the purpose of that purchase was as a "sample". 5. It was then agreed that Mr Chang would sell to the police undercover officer a "block" of heroin. They agreed on a price of $95,000. The conversation amongst the three men was recorded on a listening device. Mr Chang assured the undercover officer that his friend had the block and that the sample was "just chipped off" the block. 6. Mr Chang was very frank in saying to the undercover officer what he did not know. He acknowledged that he had not crunched the sample off the block. When asked about the quality of the heroin he replied, "Others said they were moving it well but I, we honestly did not use it much, so have no idea." When asked whether the sample was "straight off the block" and whether he saw another person "chopping it off" Mr Chang answered, "No he handed it to me." 7. The second offence of supplying a commercial quantity of heroin is based on that discussion. It is a supply in the sense of an agreement to supply a prohibited drug. A commercial quantity of heroin is 250 grams or above, up to one kilogram. 8. Mr Chang was charged because of the price and the reference to the expression "block". The facts say that $95,000 is the current street value of 350 grams of heroin which is referred to as a block. 9. Mr Chang was arrested a few days later on 11 December 2013. 10. Mr Chang has no criminal record in Australia and, as his barrister Mr L Brasch pointed out, there is no evidence of any convictions in his home country of Taiwan. A clean record is favourable to an offender. 11. On the other hand there is a very unfavourable factor in Mr Chang's case. When he committed these offences on 3 December 2013 he was on bail. He had been granted bail for an offence that he was charged with committing on 15 May 2013. He was charged with intentionally importing certain prohibited goods. The goods were two and a half kilograms of ephedrine. That was an offence against the Commonwealth criminal law. 12. Mr Chang is pleading guilty to that offence and will be sentenced on 7 November 2014. But importantly for my purposes, Mr Chang used the opportunity given to him by a court to use his liberty to commit further serious offences. The law in New South Wales describes that as an aggravating factor to be taken into account in determining his sentence. 13. There is one argument that I need to resolve or make a decision about. Mr Brasch pointed out his client's instructions were that he, his client, had no intention of supplying the block of heroin. It was to be a "rip off". Mr Brasch argued that there was no evidence of his client's capacity to supply the drugs, so I could not be satisfied beyond reasonable doubt that he would actually carry out the supply. 14. Mr C Bridge who appears for the Director of Public Prosecutions argued that based on the recorded conversations, I could conclude that there was an intention to actually supply. 15. I am satisfied beyond reasonable doubt that Mr Chang intended to actually supply the block of heroin. I infer that from the terms of the conversation which was recorded. As I have noted, Mr Chang said certain things against his own interests. I think it unlikely that he would have said those things if he was intending never to supply the heroin. Nor do I regard it as likely that he would have ripped off a person in the same suburb that he lived in. I do not regard the assertion of a rip off as being a reasonable possibility, unsupported as it is by any evidence. 16. Mr Brasch pointed out the personal circumstances of his client. He is 29, born and educated in Taiwan and had various jobs before coming to Australia as a tourist. That was at the end of 2012 and in 2013 he obtained a working visa and held down several jobs around Sydney. He has no family in Australia and indeed his family in Taiwan do not know about his predicament. 17. Mr Brasch also argued that the seriousness of the crime was towards the lower end for offences of this type. I accept that submission because the supply did not involve any drugs actually going into the community. Mr Brasch also referred me to R v DW [2012] NSWCCA 66 at 117. The weight involved was towards the lower end of the range. 18. Mr Brasch argued that his client's first time in custody in a foreign country with few visitors and very limited English would amount to special circumstances for giving him a longer parole period after serving the minimum sentence. 19. I have taken into account the statistics provided by Mr Brasch issued by the New South Wales Judicial Commission. 20. This is a case where the offender must obviously go to gaol full-time; there is no alternative. I regard an important aspect of sentencing Mr Chang as being protecting the community, given that he committed this offence whilst on bail for another serious drug related offence. 21. I come now to say what the sentence will be. For the supply of a commercial quantity of heroin I would regard a sentence of five years as being appropriate without the aggravating factor of committing the crime on bail. That is a very important aggravating factor and I would regard an appropriate sentence as being six years imprisonment. 22. For the supply of the two and a half grams of heroin an appropriate sentence would be two years, but two and a half years because of the aggravating circumstance. 23. Looking at the higher sentence of six years first, because Mr Chang pleaded guilty at the earliest opportunity I will reduce that by 25% so that his sentence is four and a half years. 24. It is appropriate that his sentence for the more serious and the less serious offences be served at the same time. This is because the crimes were committed at the same time and were part of the same transaction. In due course I will impose one sentence for both crimes. That one sentence will be four and a half years imprisonment. 25. I indicate that the sentence I would have imposed for the less serious offence would be two and a half years; but reduced by 25% would be one year and ten months. 26. For a sentence of four and half years, which is the sentence I will impose on Mr Chang, Parliament has provided that normally three-quarters of that must be served in gaol. That would mean that his non-parole period would be about three years and four months. I am going to reduce that non-parole period by a small amount to three years imprisonment because of what Mr Brasch referred to as special circumstances. I do not regard a non-parole period of less than three years as appropriate for this crime. HIS HONOUR: I am going to sentence you now if you would stand up. 1. Under s 53A of the Crime (Sentencing Procedure) Act 1999 I will impose an aggregate sentence of imprisonment in respect of both crimes instead of imposing a separate sentence of imprisonment for each one. The aggregate sentence is a non-parole period of three years commencing on 11 December 2013 when Mr Chang was arrested and expiring on 10 December 2016. The additional term will be one year and six months commencing 11 December 2016 and expiring on 10 June 2018. The sentence I would have imposed for the less serious offence is one year and ten months. HIS HONOUR: Have a seat Mr Chang I will explain that in a moment. Mr Bridge any corrections, any other orders I have to make? I don't think so. I don't direct parole because it's a matter for the Parole Authority. BRIDGE: Just in regard to the forfeiture order that I asked for. 1. Under s 39P of the Drug Misuse and Trafficking Act 1985 I make an order for the destruction of the 2.44 grams of heroin actually supplied by Mr Chang. HIS HONOUR Now I've done that, I will explain to the offender in a moment. I think that's all Mr Brasch? BRASCH: Yes your Honour. HIS HONOUR: Your prison sentence is four and a half years do you understand? INTERPRETER: Yes. HIS HONOUR: It commenced on the day you were arrested on 11 December last year. It will therefore expire on 10 June 2018. There is a minimum period you must spend in gaol of three years. That commenced on the same day 11 December 13 and will expire on 10 December 2016. On that day you will be eligible for parole. Whether you get parole or not will depend on the Parole Authority not me. But of course you will be also sentenced for the other offence which will affect that as well. Do you understand Mr Chang? INTERPRETER: Yes. HIS HONOUR: Anything else Mr Brasch? BRASCH: No your Honour. HIS HONOUR: Mr Bridge? BRIDGE: No your Honour. HIS HONOUR: I thank you Ms Li, Mr Chang can be taken down.