CTC v Regina

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999

R v Sukkar [2006] NSWCCA 92 Atholwood v R (1999) 109 A Crim R 465 CASES CITED: Cameron v The Queen (2002) 209 CLR 339 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295

PARTIES: CTC (App) Regina (Resp)

COUNSEL: G K Walsh (App) W Dawe QC (Crown/Resp)

SOLICITORS: The Law Practice (App) S Kavanagh (Crown/Resp)

IN THE COURT OF Revised CRIMINAL APPEAL 2006/865

GROVE J KIRBY J HISLOP J

Wednesday 6 September 2006 CTC v REGINA Judgment 1 GROVE J: I agree with Kirby J. 2 KIRBY J: This is an application for leave to appeal against sentence. On 24 July 2003, the applicant, who will be given the pseudonym "CTC", was arrested and charged with the supply of a large commercial quantity of heroin. He was taken into custody. On 18 April 2005 he pleaded guilty to an indictment expressed in these terms: "Between 20 July 2003 and 25 July 2003, at Sydney, in the State of New South Wales, [he] did supply a prohibited drug, namely heroin, in an amount of 2.032 kilograms, being an amount not less than the large commercial quantity applicable to that prohibited drug." 3 Under the Drug Misuse and Trafficking Act 1985, s25(2), the maximum penalty in respect of that offence is imprisonment for life and/or a fine of $550,000. Under s54B of the Crimes (Sentencing Procedure) Act 1999, and the table in Division 1A of the Act, a standard non parole period has been fixed of 15 years imprisonment. 4 On 26 August 2005, Berman DCJ sentenced the applicant to a term of imprisonment of 8½ years, consisting of a non parole period of 5½ years (24.2.03 to 23.1.09) and an additional term of 3 years (24.1.09 to 23.1.12).

The Notice of Appeal. 5 The notice seeking leave to appeal identified the following grounds of appeal: Ground 1: Insufficient weight was given to the plea of guilty.

Ground 2: Insufficient weight was given to the assistance provided by the applicant.

Ground 3: The applicant has a justifiable sense of grievance by lack of parity with the sentence received by Ching Sum Chan.

Ground 4: Insufficient weight was given to the subjective issues raised by the applicant being depression and anxiety, prospects for rehabilitation, the fact that the applicant was unlikely to re-offend and the applicant's remorse and contrition.

Ground 5: Error occurred in the fact finding exercise in the finding that the applicant was a "principal" contrary to the Agreed Facts and to the Crown concession.

Ground 6: In all the circumstances the sentence imposed upon the applicant was manifestly excessive. 6 Before dealing with these grounds, I should set out the circumstances in which the offence occurred.

The Offence. 7 The Crown tendered an Agreed Statement of Facts which the applicant signed. His Honour, in the course of his remarks, reproduced the statement, reorganising the material to some extent, to make it easier to follow. He said this: (ROS 1/2) "CTC pleaded guilty on 18 April 2005 to an offence of supplying a large commercial quantity of heroin. The quantity involved was 2.032 kilograms of that drug. The offence came about because the offender was the distributor of drugs for a group of people which included amongst others a Mr Chan and a Mr Liu. The activities of these three men were being observed by police, and included in that operation were telephone intercepts which revealed that the offender wished to get 700 grams of heroin so that he could distribute it. On 21 July 2003 a transfer of drugs took place. In fact what was handed over was 2.1 kilograms of heroin. This was three times the quantity that CTC wanted. Telephone intercepts reveal that the offender attempted to return the excess 1.4 kilos, although after some pressure was put on him he agreed to keep the entire 2.1 kilo quantity and sell it or supply it if he could. However, it was apparent that he could not get rid of the excess and so arrangements were made for him to return it. Thus, on 24 July 2003, the transaction in which the 1.4 kilogram excess was returned was observed by police. The offender was arrested during that transaction. A search of his home revealed amongst other things a hydraulic press. Eleven blocks of heroin were discovered hidden in the roof of the offender's premises. The total weight of those blocks plus other heroin found in the offender's premises was 634.1 grams. It is apparent that the eleven blocks of heroin came from the 700 grams which the offender had not returned. The 1.4 kilograms which was returned was still in powder form and had not been pressed by the offender." 8 The applicant had previously served two lengthy prison sentences for similar offences, that is, supplying prohibited drugs. The first offence was in 1991. On appeal the sentence was adjusted to a minimum term of a little more than 5 years and an additional term of almost 1 year and eight months. In 1997, the applicant was again arrested and sentenced for the supply of prohibited drugs. Again there was an appeal and an adjustment of the sentence on appeal. The minimum term, after adjustment, was 2 years and 6 months with an additional term of 1 year and 6 months. CTC completed his parole on 14 March 2001. 9 Following his arrest on 24 July 2003, the applicant became seriously depressed. Soon after he attempted suicide by jumping from a balcony within the gaol. He fell four or five metres. He did not lose consciousness. When approached by prison officers he said: "Just let me die." An x-ray of his neck revealed a fracture of the C2 vertebra, extending into the spinal canal. He still suffers from neck pain. CTC was also found to have a subdural haematoma which was, however, of no clinical significance. He had other injuries besides. He was admitted to hospital where he remained until 3 November 2003. 10 Within ten days of his discharge from hospital (13.11.03), CTC indicated that he was prepared to give assistance. He also said that he was prepared to plead guilty to the supply of the 700 grams of heroin, being the amount he had originally sought from his supplier. 11 At the time of the applicant's arrest the others involved in the transaction, Messrs Liu and Chan, were also arrested. Both pleaded guilty and were sentenced by Berman DCJ. His Honour's remarks on sentence in respect of each were tendered as part of the material available when sentencing the applicant. The sentences can be summarised as follows: · Zhi Meng Liu was sentenced on 22 October 2004 for knowingly taking part in the supply of not less than a large commercial quantity of heroin to imprisonment for 8 years, with a non parole period of 5 years. · Ching Sum Chan was sentenced on 11 March 2005. He pleaded guilty to the supply of 1.4 kilograms of heroin (being the transaction of 24 July 2003), asking that his Honour take into account two matters on a Form 1. The first was the supply of heroin, presumably the transaction of 21 July 2003, and the second was a charge of goods in custody, being the money which Chan had intended to repay the applicant for the drugs which were being returned. His Honour imposed a sentence of imprisonment for 8 years, with a non parole period of 5 years. 12 Against this background, let me turn to the grounds of appeal.

Ground 1: Insufficient weight was given to the plea of guilty. Ground 2: Insufficient weight was given to the assistance provided by the applicant. 13 It is useful to restate the chronology in respect of the plea. The applicant was arrested on 24 July 2003. The original indictment included two charges, one being the supply of almost 2.1 kilograms of heroin (on 21.7.03) and the other being the return (and therefore the supply) of 1.4 kilograms of heroin (on 24.7.03). As mentioned, the applicant signified, in November 2003, that he was willing to plead guilty to the supply of 700 grams. The Crown was not prepared, however, to accept that plea in full satisfaction of the indictment. Ultimately, on 15 April 2005, after negotiations, the Crown agreed to present a fresh indictment containing one charge, that is, the original supply of almost 2.1 kilograms on 21 July 2003. On 18 April 2003, the applicant pleaded guilty to that charge. On that aspect, his Honour said this: (ROS 4/5) "The offender pleaded guilty on the day his trial was to begin. This was obviously a late plea of guilty, although in assessing its utilitarian value I have to bear in mind that from the very beginning the offender indicated a willingness to accept his guilt in relation to 700 grams, that being the 700 grams which he wanted to take and was in the process of converting to block form when arrested. Ultimately it was accepted by him, after he received advice, that he was guilty of supplying the 2.1 kilograms referred to in the indictment. In assessing the utilitarian value of his plea I take into account that the trial, if it did run, was going to be only apparently on quite a narrow issue. I will not separately quantify the discount I have allowed for the utilitarian value of his plea because of another factor [namely, the assistance provided by the applicant] I will now mention." (parenthesis added) 14 The Crown tendered an affidavit (which became Confidential Exhibit B) describing the assistance the applicant had provided. The arresting police officer was called to give evidence. He said this: (26.8.05 T4) "Q. In addition of what's in that document, that report, have you formed some view as to the risk that's now attaches to CTC if you like as a result of his assistance? A. Yeah, there is obviously a risk to CTC. Although I'm not aware of any specific risk at the moment. But I know upon his release we'll canvas with him about witness protection. I think the risk is ongoing." 15 In cross examination the officer provided the following answers: (26.8.05 T5) "Q. You've described assistance in relation to the investigation of this particular matter as fundamental, do you recall that? A. Yes. Q. Would you otherwise describe generally the assistance provided as being very valuable? A. Yes I do." 16 There was evidence that the applicant was in protection in the Special Purposes Prison. The report of the psychologist included a history that he did not mix with others outside the small group in his wing. It was submitted that, as a protected prisoner, it would not be open to him to study outside the gaol or participate in a work release programme. 17 His Honour accepted that the applicant may serve his sentence in protection and was likely to need Witness Protection when released from custody (ROS 9). As to the assistance he provided, his Honour said this: (ROS 5) "The offender has been assisting the authorities. I do not propose to say much more than that for obvious reasons. I have received an affidavit and oral evidence has been given as to the usefulness of that assistance. Some of the material has been information which was previously unknown to the police. Not all of that has been proved to be true, but the affidavit suggests that there is no reason to doubt the veracity or reliability of the information. The offender also promised to give evidence were it required. That promise appears to have resulted in a co-offender changing his plea from one of not guilty to guilty. The assistance is quite clearly of a significant level." 18 When assessing the discount for the plea of guilty and the assistance, his Honour referred, in a summary way, to the range of discounts which this Court has suggested were open (ROS 5/6). He also referred to the constraint arising from s23(3) of the Crimes (Sentencing Procedure) Act, that the discount for assistance must not be unreasonably disproportionate to the nature and circumstances of the offence. His Honour then said this: (ROS 10) "Because of the discount for pleading guilty and assisting the authorities, the sentence I will now announce is approximately forty per cent lower than it would otherwise have been." 19 Counsel for the applicant drew attention to his Honour's description of the assistance as "significant". He suggested that such a description was an error because it underrated the assistance which the police officer had described as "fundamental" and "very valuable". The applicant was at risk. He would probably spend his sentence in protection. He would still need protection when released. He had come forward early. A larger discount was, in the circumstances, required. 20 The Crown responded by drawing attention to a recent decision of this Court, R v Sukkar [2006] NSWCCA 92, where Latham J (McClellan CJ at CL and Howie J agreeing), said this: "[54] While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender. [55] It is helpful at this point to review the considerations which underpin the allocation of a discount for assistance to authorities. In R v Perez Vargas (1986) 8 NSWLR 559, Street CJ reviewed the English authorities which were adopted for the purposes of guidance in the quantification of a discount for assistance. A significant factor in the English case law was the hardship occasioned to a prisoner who provided assistance to the authorities, both in respect of the serving of a sentence and upon release to the community. (See also R v Hayes (1981) 3 A Crim R 286). To similar effect is the discussion by Gleeson CJ in R v Gallagher NSWCCA 16 May 1991 (unreported):- 'The authorities which discuss the relevant principles demonstrate that, where an offender is entitled to have assistance to authorities taken into account in his favour, that will usually be upon a number of grounds, ... The considerations that are relevant are discussed in R v Perez Vargas (1986) 8 NSWLR 559. There is what might be called the utilitarian consideration involved in encouraging persons to provide information which will permit the apprehension and successful prosecution of other offenders. ... Other considerations that enter into the matter include the remorse or contrition which may be demonstrated in a given case by cooperation with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having cooperated. ... It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of interrelated considerations." 21 The Court, in that case, determined that a discount of 45 percent was excessive where the assistance could not be characterised as "of a very high order", and where there was no evidence of personal risk, either to the prisoner or his family. The Court ultimately reduced the discount for the assistance and a relatively early plea to 35 percent. 22 Howie J, agreeing with Latham J, added these comments (with which McClellan CJ at CL also agreed): "[5] It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the basis of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact." 23 Dealing with these submissions, the selection by his Honour of the appropriate discount was a matter of discretion. The appellant must therefore show error, arising from either a misstatement of principle or the selection of a figure outside the discretionary range. Here, there was, I believe, no error in the choice of the word "significant" to describe the assistance. There is no hierarchy of descriptive words, such that his Honour was obliged to choose one word rather than another. "Significant" was an apposite word. An examination of the material in Exhibit B also shows, incidentally, that when the police used the words "fundamental" and "very valuable" they did so in the context of particular individuals, rather than the assistance overall. There was therefore no misstatement of principle. 24 So far as the figure selected was concerned, the plea was late, being made as the matter was about to be called on for trial. It was made almost two years after the arrest. No doubt the applicant was hoping that the Crown would accept a plea to a charge that he supplied 700 grams (which is a commercial quantity rather than a large commercial quantity) in view of the assistance he had provided. The Crown, however, would not agree to do so although it ultimately agreed to present an indictment which included only the supply on 21 July 2003 (the 2.032 kilograms) and not the supply on 24 July 2003 (the 1.4 kilograms). His Honour was obliged to weigh these matters, and his recital of these facts suggests that he did so. It would be unsurprising if his Honour, in the circumstances, allowed a discount in the order of 15 percent in respect of the plea (cf Atholwood v R (1999) 109 A Crim R 465; Cameron v The Queen (2002) 209 CLR 339, per Gaudron, Gummow and Callinan JJ paras 20-21, Kirby J para 75). 25 So far as the assistance was concerned it was, unquestionably, of real significance. The applicant, being in protection, had paid a price for having provided assistance and may be at risk upon release. Some judges may, in these circumstances, have allowed a combined discount slightly higher than the 40 percent allowed by Berman DCJ. However, the figure selected by his Honour was, I believe, within the range. There was no error. 26 I would therefore dismiss grounds 1 and 2.

Grounds 3 and 5. Ground 3: The applicant has a justifiable sense of grievance by lack of parity with the sentence received by Ching Sum Chan.

Ground 5: Error occurred in the fact finding exercise in the finding that the applicant was a "principal" contrary to the agreed facts and to the Crown concession. 27 Again it is convenient to consider both these grounds together. His Honour was, as mentioned, the sentencing Judge in respect of the co-offenders Chan and Liu. Their pleas had likewise proceeded upon the basis of agreed facts. His Honour therefore, as his remarks demonstrate, was acutely aware of the issue of parity. 28 One gathers that the agreed facts in the matter of Chan were the same as those ultimately tendered in the sentencing proceedings involving the applicant. They described the arrangements made between the applicant and a person referred to as "UM" for the supply of heroin, and its ultimate delivery by Mr Chan, in these terms: "It was clear from these telephone intercepts that CTC had agreed to receive approximately 700 grams of heroin and have it in his possession for the purpose of supply. The supply to CTC took place on 21 July 2003. CTC in fact received approximately 2.1 kgs of heroin. Subsequent telephone intercepts between CTC and UM show that CTC did not want to take possession of the additional 1.4 kgs. He told UM that he would not be in a position to distribute it. UM continued to pressure CTC to take it and try to sell it. Eventually, CTC reluctantly agreed to take possession of it with a view to supplying it if he could. He held it for the purpose of supply for a limited period from 8pm on 21st July 2003 until approximately 8pm on 24th July 2003 when he returned it to Chan having not been able to supply it." 29 It was apparent, therefore, that Mr Chan was under instructions from UM, when he made the delivery on 21 July 2003 and in receiving the redelivery on 24 July 2003. In that context his Honour characterised the role of Mr Chan in these terms: (ROS Chan 3/4) "The offender was acting as a courier on 21 July but I do not believe that it is accurate to describe him as a mere courier. There is no evidence of him being involved in the arrangement of the transaction which took place on 21 July, but he did contact CTC and make arrangements regarding the return of that quantity of drugs which CTC did not want. It is for that reason that I have decided that the offender is not a mere courier. There is, however, no evidence that he was acting as a principal in this endeavour. He appeared to work for the principal ... " 30 Returning to the agreed facts in respect of the applicant, there was an elaboration upon the arrangements on 24 July 2003, being the day of arrest. The facts included the following: "It is accepted that upon his arrest CTC was returning approximately 1.4 kilograms of heroin to Chan this was in powder form. It represented the quantity of heroin in excess of the 700 grams that CTC had originally undertaken to distribute." 31 When sentencing the applicant, his Honour said this: (ROS 6/7) "In assessing the nature and circumstances of the offence, one of the most important features is the role of the offender. It is difficult to ascribe labels without suggesting that everyone that comes under that label bears the same objective criminality, but with that in mind I will say I am satisfied that the offender's role was as a principal in the endeavour which he undertook, namely to obtain a large quantity of drugs, to repackage it and to distribute it to others who would then on-sell it. This finding is of significance not only in assessing the appropriate sentence to impose upon the offender but also when I return to questions of parity." 32 He added: "Mr Chan I sentenced on the basis that he was a courier, not a mere courier but a courier nevertheless. I was not satisfied that Mr Chan was a principal. That was on the material that was available to me when I sentenced Mr Chan. Were I to consider Mr Chan's role on the information before me in the present case I may well have come to a different conclusion, but in considering issues of parity I have to remember the basis on which I sentenced Mr Chan and at the risk of repetition, that was after assessing him at a lower level of involvement in the matter than the present defender. Also of significance, and considerable significance, is the fact that Mr Chan had no prior convictions. When comparing the sentence that I am about to impose on the offender with the sentence I imposed on Mr Chan, those two features have to be borne in mind." 33 Dealing with ground 5, it is true that the agreed statement did not refer to the applicant as a "principal". It simply described what each party to the various transactions did. However, it was open to his Honour to characterise CTC as a principal. He made the arrangement for the supply of 700 grams. He agreed (under pressure) to accept the larger amount, in the hope that he could sell the drugs. He recruited Liu to take delivery of the drugs. He arranged for payment of Chan. He later negotiated the return of the 1.4 kilograms which he could not sell. The characterisation by his Honour as principal was appropriate. 34 Mr Chan was sentenced to eight years imprisonment with a non parole period of five years, which was the equivalent of a ten year eight month sentence before the discount for the plea of guilty. The starting point in respect of the sentence imposed upon the applicant, before discount, exceeded fourteen years. However, there is no basis for any justifiable sense of grievance on the part of the applicant as a result of this difference (Lowe v The Queen (1984) 154 CLR 606 at 609-10; Postiglione v The Queen (1997) 189 CLR 295). As mentioned, Mr Chan, on the material before the sentencing Judge, was answerable to a superior (UM) with whom the applicant dealt directly. Mr Chan was, as his Honour pointed out, a person without previous convictions whereas the applicant had spent much of the decade before these offences in gaol for precisely the same type of offences. He had, as his Honour remarked, manifested an attitude of disobedience towards the law which made it important, in his case, that there be an aspect of personal deterrence. 35 I would dismiss grounds 3 and 5.

Grounds 4 and 6. Ground 4: Insufficient weight was given to the subjective issues raised by the applicant being depression and anxiety, prospects for rehabilitation, the fact that the applicant was unlikely to re-offend and the applicant's remorse and contrition.

Ground 6: In all the circumstances the sentence imposed upon the applicant was manifestly excessive. 36 His Honour described the applicant's background. He was born in Vietnam in 1962. He left that country in 1982 and spent some time in a refugee camp. He arrived in Australia in 1985 and is now an Australian citizen. He has a number of siblings in Vietnam. Since coming to Australia, he has formed a defacto relationship with a woman with whom he has three young children. His wife remains supportive. 37 CTC worked for a time driving a delivery van, as a process worker and as an upholsterer, before becoming involved in drugs. He had smoked heroin from time to time but could not be described as an addict. He had periodically resorted to the sale of drugs as a means of making money. 38 His Honour referred to the standard non parole period and its importance as a guidepost, even in the context of a plea of guilty and assistance. As to the rehabilitation, his Honour said this: (ROS 9) "The fact that the offender has been assisting the authorities is a significant feature which tends to suggest that the offender wishes to change his life around, accepting that what he has done in the past is not appropriate. As far as rehabilitation is concerned, the offender does have prospects of rehabilitation but whether they are good or not remains to be seen. At this stage I cannot satisfy myself that he does have good prospects of rehabilitation. One factor tending to suggest that he will not be committing any more criminal offences is the possibility that he will be on witness protection once he is released from custody. That, and the fact that he has assisted people who would no doubt have other contacts in the drug supply trade, suggests that he is unlikely to re-offend." 39 His Honour accepted that the sentence would be served in protection and primarily upon that basis found special circumstances. 40 Counsel for the applicant only faintly argued that, in the context of this crime, with a maximum sentence of life imprisonment and a standard non parole period of fifteen years, that taking account of the objective criminality, the applicant's record and the subjective features, that the sentence was manifestly excessive. However, in my view, it was not. 41 I would therefore dismiss grounds 4 and 6.

Order. 42 The order that I propose is that leave to appeal be granted, but the appeal be dismissed. 43 HISLOP J: I agree with Kirby J. **********

06/09/2006 - Pseudonym inserted - Paragraph(s) Throughout judgment

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