Chen v R

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)

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

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

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.

Ground 2 17 It is convenient to deal with this ground of appeal first. During the course of his remarks on sentence, his Honour observed: There is no doubt that he was involved in a commercial operation for financial gain. He was observed to supply ice on twenty-eight separate occasions, usually half an ounce or an ounce between 20 June and 20 July. 18 His Honour was then interrupted by the representative of the Crown and the following exchange occurred: HUDSON: I think it was half a gram your Honour. HIS HONOUR: Half an ounce it says in the agreed facts. Between seven and fourteen grams on each occasion. Page two of the agreed facts. HUDSON: Pardon me your Honour. HIS HONOUR: If I am wrong you can correct me later. 19 It is common ground that the sentencing judge was merely reciting verbatim what appeared in the Agreed Statement of Facts. It is also agreed that the reference in that document to "the usual amount supplied [being] between 7 and 14 grams (that is half an ounce and an ounce)" was simply wrong. It is axiomatic that an Agreed Statement of Facts should contain information that is completely accurate. It is regrettable that the material which was presented to the sentencing judge in the present case was not. However, in my view, the error did not infect the sentencing process because the schedule, upon which the sentencing judge plainly relied, quite clearly reflected the correct position. The schedule also identifies, where it is possible to do so, the quantity of drugs that were discussed on each separate occasion. The fact that neither representative saw fit to take up the sentencing judge's invitation to correct any errors which he may have made, confirms my view that the matter was not seen by those appearing at first instance to be of any real moment. I would reject this ground of appeal.

Ground 1 20 It is now convenient to deal with this ground which, in effect, asserts that the sentences were manifestly excessive. In support of this ground, the applicant's legal representative placed emphasis upon a remark made by his Honour that "it's the most serious case of this type that I've had to deal with". In support of his submission that error had been thus established, the applicant's legal representative referred to frequently cited passages from the decisions in Ibbs v The Queen (1987) 163 CLR 447; Veen v The Queen (No2) (1988) 164 CLR 465 and R v Smiroldo [2000] NSWCCA 120. Those passages however are concerned with an offence which falls within the worst category of case. Nothing in either the remarks on sentence or in the sentence itself could possibly suggest that the sentencing judge regarded the present offence as being in that category. In any event, his Honour's remarks were made during the course of submissions and formed no part of the remarks on sentence. Furthermore, his Honour's remarks need to be read in context. What his Honour actually said was that "I've dealt with a number of these cases and I think it's the most serious case of this type that I've had to deal with". I can discern nothing about those remarks which would suggest error. 21 The applicant then drew attention to a further passage from the remarks on sentence in which his Honour said: Ice is increasingly recognised as a drug that causes considerable social harm. I am not suggesting that there is a disregard for community safety which is an element of any drug supply offence. It is not an aggravating factor but it is a factor which explains why this offence is regarded so serious (sic). 22 That passage was criticised upon the basis that the sentencing judge had allowed his own personal view about the harmfulness of the drug in question to intrude into the sentencing process. It was also submitted that it fell foul of what the High Court said in Adams v R (2008) 244 ALR 270. In a joint judgement, Gleeson CJ, Hayne, Crennan and Kieffel JJ, in rejecting the submission that ecstasy is less harmful to users and to society than heroin, said: Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution, and in the present case are not sustained by evidence, or material of which judicial notice can be taken. An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme. This problem was recognised by the Court of Criminal Appeal of New South Wales in R v Poon . A similar problem in relation to Victorian legislation underlay the decision in Pidoto noted above. Of course, the fixing of a maximum penalty is not the end of the matter, as was emphasised in Ibbs v R . But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin. Furthermore, the sentencing judge's primary consideration was deterrence. That is not said to involve error. Why there should be a difference in that respect between heroin and MDMA was not explained. (citations omitted) (paras 9-11) 23 Since the sentencing judge stated a truism and made absolutely no finding about the relativeness seriousness of the drug ice as compared with any other prohibited drug, I am unable to detect errors of the kind which were asserted. I would reject this aspect of the applicant's submission. 24 Finally, the applicant called in aid the decision of this Court in R v Kamminga [2003] NSWCCA 337. In that case, a two judge bench of this court intervened and resentenced an offender who had received a sentence of 6 years imprisonment with a non-parole period of 3 years for an offence involving a contravention of s 25A(1) of the Drug Misuse and Trafficking Act. That offender sold amphetamines on three occasions to an undercover police officer. The gross weight of the drug was about 22 grams and the total price was $2,800. The applicant's personal circumstances, which were described as being "remarkable", included the fact that he suffered from a chronic affective disorder. He was also described as "being in straitened financial circumstances around the time of the offence, living in extremely modest circumstances and receiving food from charities. .. he was emaciated, distressed and had a tremor in his hands." Having considered a number of decisions of this Court as well as statistics maintained by the Judicial Commission Barr J, with whom Miles AJ agreed, said:

This Court has frequently observed the need for caution when approaching such figures, especially where they comprise cases which are so few as to lack statistical significance. However, it seems to me that eighty-one cases is a substantial number and I would regard the statistics as being a reasonably reliable indicator of the available range for the offence. That is not to say that a head sentence of five years is at the top of the range or that a sentence of six years is outside the range. What the statistics do show, I think, in combination with the remarks of this Court in R v CBK is that a six-year head sentence is remarkably high for this offence. One would expect to see particularly serious features in the criminality of an offender receiving such a sentence. (par 18) 25 The fact that a 6 year head sentence for that offender was described as being "remarkably high" does not in my view demonstrate that a sentence of a similar length in the present case is therefore manifestly excessive. Moreover, there were many features of the present case which revealed much more serious criminality than was displayed by the offender in Kamminga. 26 On any view of the matter the objective gravity of the present offence was high. The applicant was not a mere "street dealer". On the contrary, he was part of an organised commercial operation. The seriousness of the applicant's offending is apparent from the length of his involvement in the enterprise, the number of individual transactions in which he participated and from the overall quantity of drugs that he supplied. Moreover, the fact that the sentences in respect of the second and third counts were wholly subsumed within the sentence imposed in respect of the first count, suggests that a significant measure of leniency was extended to the applicant. That is particularly true of the third count, which concerned an entirely unrelated offence and which would, in the ordinary course of events, have been expected to attract a sentence which was, at least, partially accumulated upon the earlier sentence. Furthermore, it was a serious offence in its own right in respect of which, as I have said, there was a standard non-parole period of 3 years. 27 I propose that leave to appeal be granted but that the appeal be dismissed. 28 HARRISON J: I agree with Buddin J. ********** - 15 -

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