Dang v R & Matthews v R

Supplying Ecstasy - both applicants 7The applicants were involved in the supply of ecstasy to undercover police officers on two occasions. On 28 March 2008, 237.6 grams of the drug, with a purity of 23.5%, was sold for $14,000 to an undercover officer known as Alex. On 15 April 2008, 494.8 grams, with a purity of 30%, was sold for $29,000 to an undercover officer known as Sean. The offence to which the applicants pleaded guilty embraced these two transactions, involving a combined weight of 732.4 grams. The large commercial quantity for ecstasy is 500 grams. 8The drugs were sourced from one Aaron Hsu, with whom Mr Dang had contact. On each occasion Mr Dang made arrangements for Mr Hsu to provide the drugs to Mr Matthews in the area where the sale was to take place. It was Mr Matthews who supplied the drug to the undercover officers and who received the purchase price. In each case the money was handed over to Mr Hsu less $1,000, which was to be shared by the applicants as recompense for their part in the venture. 9The most serious offence on the Form 1 for each applicant was the supply of an indictable quantity of methylamphetamine, also to Alex. That offence was arranged by Mr Dang in collaboration with Mr Matthews and, again, it was Mr Matthews who supplied the drug to Alex for $21,000. The drug was in two bags, one weighing 27.3 grams of a purity of 61.5%, and the other weighing 27.9 grams of a purity of 63%. The total weight was 55.2 grams. Otherwise, the offences of supplying small quantities of prohibited drugs on each Form 1 related to the provision of samples for the purpose of negotiating the sales of the drugs. 10At the time the applicants were sentenced Mr Hsu had been dealt with by another judge. To that matter also I shall refer later.

Ongoing sale of firearms - Matthews 11Mr Matthews' offence of selling firearms on an ongoing basis arises from his sale to Alex on four occasions of firearms which Alex was not authorised to possess. On 15 January 2008, he sold him a .32 self-loading pistol for $2,000. With it were 16 bullets. The weapon was later found to be functional but not in perfect working order. 12On 11 February 2008, he sold Alex two similar firearms, being .22 Winchester magnum bolt-action repeating rifles, for $650. Neither rifle had a magazine. Testing of those weapons found them to be in working order. On 23 April 2008, he sold Alex yet another .22 Winchester repeating rifle for $550. It also was in working order. 13Of the Form 1 matters associated with this offence, the offence of selling ammunition without seeing the buyer's licence arose from his supplying the ammunition with the .32 automatic pistol. Offences of possessing ammunition without authority and the unauthorised selling of a firearm part arose from his supplying Alex on 12 February 2008 with .22 ammunition and a magazine for one of the rifles he had sold him the previous day. The remaining offence of possessing ammunition was the result of the finding of further .22 ammunition during a search of his home on the day of his arrest.

Dang 14Mr Dang was thirty-one years old at the time of the offences, and is now 37. He has a relatively short criminal history, the more serious offences having been committed when he was a juvenile. That included a number of offences of armed robbery, apparently committed on the same occasion, for which he was sentenced to a term of imprisonment in the District Court. He had no previous drug offences. There was a volume of material before Judge Charteris about his background, which was not an easy one and included abuse of alcohol and illicit drugs. For present purposes, however, it is not necessary to examine this material.

Matthews 15Mr Matthews was aged between 59 and 60 at the time of the offences, and is now 64. He has a formidable criminal history in this State, although it is old. It spans the period between 1963 and 1983. It includes offences of armed robbery, for which he was sentenced to substantial terms of imprisonment. There are also entries for the unauthorised possession of firearms. He served terms of imprisonment during the dark period of this State's penal history before the Nagle Royal Commission in the 1970s, including incarceration in the then notorious Grafton Gaol and the high security unit, Katingal. 16Thereafter he did not come under adverse notice for many years. However, in 1997 he was sentenced in Brisbane to another substantial term of imprisonment for stealing with actual violence whist armed with a dangerous weapon and related charges. He was released on parole in respect of that sentence in 2000, returned to New South Wales in 2002, and completed that period of parole without incident in 2006. Apart for a minor entry for possession of indian hemp in 1983, he also has no history of drug offences. 17In his case also there is no need to recite his background in any detail. He had a disturbed upbringing. He has for some years suffered from diabetes and a serious heart condition. A psychologist, who saw him for the purpose of these proceedings but had also had contact with him during his imprisonment between 1978 and 1981, diagnosed him as suffering from chronic post-traumatic stress disorder as a result of his experience of prison in those years.

The applications 18As I have said, both applicants complain that the sentences passed upon them are manifestly excessive. Before turning to that matter, I shall examine the other grounds upon which each of them relies.

Dang - parity 19It is asserted on Mr Dang's behalf that the relativity of the sentence passed upon him with those passed upon Mr Matthews and Mr Hsu for the same offence leaves him with a justifiable sense of grievance. 20Mr Hsu was sentenced by Toner DCJ. He had pleaded guilty to the charge of supplying ecstasy and a charge of unauthorised possession of a .45 pistol. In his case also there were Form 1 matters. Judge Toner discounted the sentence for the drug charge by 10% for a late plea of guilty, but allowed a 25% discount for an early plea to the firearm charge. On the drug charge he was sentenced to imprisonment for 13 ½ years with a non-parole period of 10 years, and on the firearm charge he was sentenced to a partly cumulative term of 4 years with a non-parole period of 3 years. The aggregate sentence was imprisonment for 14 years with an effective non-parole period of 10 ½ years. 21Mr Hsu's appeal against those sentences was unsuccessful: Hsu v R [2012] NSWCCA 248. The leading judgment was delivered by Fullerton J, with whom McClellan CJ at CL and Campbell J agreed. 22As Fullerton J recorded at [21], Judge Toner characterised Mr Hsu as a "facilitator" or a "commission agent", being "someone who sources the drugs on behalf of a purchaser and accounts back to the person from whom they were sourced." When dealing with the applicants, Judge Charteris had regard to the sentence passed upon Mr Hsu. He considered him to be "further up the supply chain." He also noted a number of drug offences in his criminal history, including a conviction for supplying a prohibited drug for which he had been sentenced to imprisonment. Mr Hsu's record was summarised by Fullerton J at [19]. Her Honour also noted that Judge Toner was unable to find that he had good prospects of rehabilitation: [26]. 23Judge Charteris considered the criminality of the applicants to be less than that of Mr Hsu, but the same as between themselves. He found that they were motivated by the hope of financial gain, although he accepted that their rewards were "paltry in the extreme." Nevertheless, he concluded that they had intended to maintain a relationship with the undercover officers and that there would have been "potential for ongoing supplies and profits," even though they might have been "very small." On the other hand, his Honour described Mr Matthews' criminal record as "far worse" than Mr Dang's. 24Counsel for Mr Dang in this court, Mr Dhanji SC, submitted that Mr Hsu's role in the offence was significantly more serious than Mr Dang's. He also noted Mr Hsu's history of drug offences and Judge Toner's unfavourable finding as to his prospects of rehabilitation. In addition, he observed that he had the benefit of a substantially concurrent sentence for the firearm offence. 25That concurrency of sentence was, of course, well within the proper exercise of Judge Toner's discretion. The focus must be upon the sentence passed on Mr Hsu for the drug offence. It exceeded Mr Dang's sentence by 1 year as to the head sentence and `1 year and 4 months as to the non-parole period. As I have said, Judge Charteris considered Mr Hsu to be further up the chain of supply but clearly, in the light of Judge Toner's finding, he was not at the end of it. Judge Charteris said of Mr Dang that he was "shown to have had contacts further up the supply chain; he was able to contact Mr Hsu who had contacts that could actually provide the drugs." In my view, a comparison of the sentence passed upon Hsu and those passed upon the applicants demonstrates a recognition of the distinction between their roles and their subjective cases which was reasonably open to Judge Charteris. 26As to the sentences passed upon the applicants themselves, it will be remembered that for the drug supply charge Mr Dang was sentenced to imprisonment for 12 ½ years with a non-parole period of 8 years and 8 months, and Mr Matthews to imprisonment for 12 years and 9 months with a non-parole period of 7 years and 9 months. Accordingly, Mr Matthews' head sentence was only 3 months longer than that of Mr Dang, and his non-parole period was almost a year less. 27Mr Dhanji submitted that a comparison of the two sentences demonstrated a failure to recognise the difference in the criminality of the two men and in their subjective cases. While accepting the basal findings of fact of Judge Charteris, Mr Dhanji argued that Mr Matthews' criminality should have been assessed as greater than that of Mr Dang. It was Mr Matthews who had courted the undercover police officers and instigated the supplies in which Mr Dang became involved. Moreover, he noted that it was Mr Matthews who handled the drugs and the money. 28While accepting these factual observations, it does not appear to me that they have a significant bearing upon the level of criminality of the applicants. In Mr Matthews' case there was an agreed statement of facts. However, In Mr Dang's case there was not. The facts had to be gleaned from evidence that had been given during a trial which had proceeded for four days before he entered his plea of guilty. In sentencing Mr Dang, his Honour arrived at his findings of fact after a careful examination of the evidence. His assessment of the criminality of the two men was well open to him. 29Mr Dhanji noted that on Mr Matthews' Form 1 was an offence, in which Mr Dang was not involved, of supplying 302.9 grams of pills held out to be a prohibited drug but which proved, in fact, to contain only caffeine. Judge Charteris had characterised that offence, together with the supply of the indictable quantity of methylamphetamine, as the most serious matters on that Form. Further, Mr Matthews' criminal record was undoubtedly much more serious than that of Mr Dang. On the other hand, the Form 1 matter involving the pills was not of any great significance in the overall picture. Most of Mr Matthews' criminal record was old and there had been significant periods of his life when he had apparently avoided conflict with the law. Moreover, as the Crown prosecutor in this court pointed out, in sentencing him Judge Charteris took into account the state of his health, both physical and mental. I shall refer to this material when dealing with Mr Matthews' application. 30The sentence passed on Mr Matthews for the drug offence, and more particularly the non-parole period, have to be understood in the light of the fact that they were part of a structure of sentencing encompassing the firearms offence. In determining those sentences his Honour expressly had regard to the principle of totality. Having determined that he was entitled to a finding of special circumstances, his Honour arrived at the aggregate sentence to which I have referred: imprisonment for 16 years with an effective non-parole period of 11 years. In my view, his Honour approach demonstrated no discretionary error and does not give rise to a justifiable sense of grievance on the part of Mr Dang. 31The principles of parity of sentence are well established and are the subject of a long line of authority, to which I need not refer. It is appropriate, however, to refer to a passage in a decision of this court to which the Crown prosecutor referred. In Gurney and Willetts v Regina [2011] NSWCCA 48, Whealy JA, with whom Johnson J and I agreed, observed at [82]: "... where the same judge comes to sentence two offenders at the same time and gives detailed reasons for imposing the sentences, taking into account the differing criminality of each, and the differing circumstances, an appellate court will be cautious and not overly willing to conclude that one of the offenders has a justifiable sense of grievance, simply because there are different sentencing outcomes (R v Swan [2006] NSWCCA 47, per Barr and Howie JJ at [71])." 32Of course, these observations are apt whether the complaint be of unwarranted disparity of sentence between two offenders or of insufficient distinction in sentence between them. As it happens, the applicants were sentenced on consecutive days: Dang first, followed by Matthews. However, both sentences were reserved decisions following a sentence hearing which extended over several days. The fact that the sentences were not passed simultaneously makes no difference to the force of the observations of Whealy JA. 33I would reject this ground.

Matthews 34It is agreed that the first ground of Mr Matthews' application must succeed. As I have said, in respect of the charge of selling firearms on an ongoing basis Judge Charteris passed a fixed term of imprisonment. As the offence carries a standard non-parole period, it was not open to his Honour to do so. A court must set a non-parole period in respect of an offence for which a standard non-parole period is prescribed: s 45(1) of the Crimes (Sentencing Procedure) Act 1999. 35Reference was made to Lipchin v R [2013] NSWCCA 77, in which I had occasion to consider the approach of this court to intervention when a ground such as this is made out: [13] - [19]. In the present case counsel were agreed that his Honour regarded the fixed term as equivalent to a head sentence. Accordingly, a non-parole period should be fixed in respect of it. I shall return to the question of re-sentence on this count after considering the other grounds of the application. 36The second ground asserts that his Honour fell into error in sentencing for the firearms offence on the basis that it was aggravated. The offence of selling firearms on an ongoing basis is to be found in s 51B(1) of the Firearms Act, which relevantly provides that a person must not sell a firearm in breach of s 51(1) of the Act "on 3 or more separate occasions over any consecutive period of 12 months." In his remarks on sentence his Honour, after noting that three sales would be sufficient to constitute the offence, added that it "must be an aggravating factor that four sales took place." 37Counsel for Mr Matthews in this court, Mr Ramage QC, argued that his Honour fell into error by effectively treating that matter as an aggravating feature when it was an element of the offence charged. He referred to established authority that a matter should not be taken into account as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act if it is an element of the offence for which the offender is being sentenced: Mansour v R [2011] NSWCCA 28, 209 A Crim R 275, per Price J at [46]. As s 51B(1) creates an offence of selling firearms on "3 or more separate occasions" over the relevant period, he argued, the fact that four weapons were sold falls within the description of the offence and should not be treated as an aggravating factor. 38It is, perhaps, unfortunate that his Honour used the expression "aggravating factor", which has become something of a term of art because of s 21A. However, there is force in the Crown prosecutor's submission that his Honour meant no more than that an offence of this kind involving four firearms is necessarily more serious than one involving three. Obviously, that must be so. 39Mr Ramage also relied on the passage of his Honour's remarks which followed the one I have quoted above: "I realise that some of the weapons were not functional or completely functional but they could discharge bullets. A revolver, or rifles when cut down, when falling into the wrong hands can cause a lot of trouble in our community. This court and other courts are well experienced with what is occurring in our community with the use of pistols and of cut down and prohibited weapons." 40Mr Ramage argued these observations also amount to erroneous findings of aggravating factors. He noted that none of the rifles Mr Matthews supplied were cut down. He also noted that, while the rifles were described in the indictment as prohibited firearms, they did not strictly fall within the definition of that expression in Schedule 1 to the Firearms Act. 41Again, this amounts to examining his Honour's observations with a technicality which is unwarranted. It is clear enough that his Honour was commenting upon the hazards arising from the availability of unauthorised firearms in the community generally, so as to emphasise the seriousness of any offence of unlawful dissemination of firearms. 42This ground is not made out. 43Ground three is that his Honour failed to give adequate weight to the applicant's subjective circumstances and ground five complains about his characterisation of the gravity of the drug offence. These are really particulars of the ground that the sentences are manifestly excessive, and can be dealt with briefly. 44Mr Ramage submitted that his Honour failed to afford appropriate weight to the applicant's age and the state of his health. However, his Honour expressly took both those matters into account. In his remarks he said: "I also consider his age and health are matters that I will take into account but I caution myself in accepting that Mr Matthews decided to go down the path of serious criminal behaviour." 45Mr Matthews' health was an important matter on sentence. There was a volume of material about it before his Honour, including reports of Dr Ford, a cardiologist, and Dr Greenaway, an endocrinologist, together with the report of the psychologist to whom I have referred, Mr Watson-Munro. His Honour addressed the salient features of those reports in his remarks, affirming that he had taken each of them into account. 46His Honour noted that Dr Ford's report disclosed a serious heart condition. For this he requires the blood thinner, Warfarin, and Dr Ford noted that he required careful medical management so as to avoid any major traumatic or accidental bleeding. 47Dr Greenaway dealt with the diabetic condition. His Honour summarised the development of the disease as it was explained in the doctor's report, and noted the doctor's concern about the suitability of the diet provided within the prison system. He further noted the doctor's conclusion that the diabetic problem was likely to remain poorly controlled and that "in terms of the endocrinological situation and the damage already brought about to kidneys, heart, eyes, and other organs, I would be surprised for him to survive another decade." 48On the question of the diet, his Honour noted that the doctor was under the impression that Mr Matthews had been in custody for some 16 or 17 months, when in fact it had been a period in excess of 3 ½ years. He noted that the prognosis of 10 years life expectancy was in the context of an inadequately treated diabetic condition. I understand his Honour to have been saying that Mr Matthews had managed on a prison diet for longer than the doctor had understood, but I do not accept Mr Ramage's submission that his Honour had dismissed the doctor's opinion about life expectancy. 49His Honour summarised the history provided by Mr Matthews to Mr Watson-Munro, noting the diagnosis of a post-traumatic stress disorder which is well entrenched and will probably be with Mr Matthews for the remainder of his life. He also noted the symptoms which Mr Matthews described, including sleep disturbance, nightmares and flashbacks. He recorded Mr Watson-Munro's opinion that there was need for intensive psychological treatment to address these problems. 50The principles governing the relevance of illness to sentence are well known and enshrined in a number of decisions of this court. His Honour did not refer to any of that authority, but it was not necessary for him to have done so. This court's decisions have repeatedly referred to the statement of the principles by King CJ in R v Smith (1987) 44 SASR 587 at 589: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 51This passage was referred to in R v L (CCA unreported, 17 June 1996), and the court added (at p 5): "There may be cases in which the offender's illness is such as to call for leniency as a matter of common humanity, quite apart from any effect it might have upon conditions of custody." 52Mr Matthews' conditions would be distressing whether or not he was at liberty, and it hardly needs to be spelled out that they must render his experience of custody more unpleasant. On the other hand, the evidence does not establish that they cannot be managed within the prison system. That said, it is apparent from his Honour's remarks as a whole that he did take this matter into account in accordance with authority. No doubt, it is reflected in the finding of special circumstances. On the other hand, it was necessary for his Honour to balance that material against the undoubted seriousness of the offences, and it is apparent from the passage from his remarks cited above at [44] that he did so. 53As to his Honour's assessment of the seriousness of the drug offence, Mr Ramage noted a passage in the remarks on sentence in which the offence was described as "organised supply of illicit drugs for the financial benefit of the offender." He argued that the present case demonstrates no more organisation than one would expect in drug supplies of this kind. That may well be so, but his Honour's description of the offence in that way was not inapt. 54Ground four asserts error in his Honour's treatment of Mr Matthews' criminal record. In respect of both offences his Honour said that they were "aggravated by the Form 1 matters and the offender's criminal record ... ." Here also, Mr Ramage submitted that his Honour had wrongly treated the criminal history as a matter in aggravation. However, again, it is clear enough that his Honour was not using the word in a limited sense but was saying that the criminal history was relevant to considerations of retribution and deterrence, as explained in R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566. This was so notwithstanding the fact that most of that criminal history was old, given the more recent convictions in Brisbane and Mr Matthews' relapse into criminal activity on this occasion.

Manifestly excessive? 55On behalf of both applicants, it was pointed out that the drug supply offence involved two transactions, each of them less than the large commercial quantity, although the two of them together amounted to a quantity which was still low in the range of that category. Reliance was placed on the small reward they stood to gain, and on the fact that, because this was an undercover police operation, the drugs were never going to be disseminated in the community. 56Mr Dhanji referred to three decisions of this court dealing with sentence for offences of this kind, while acknowledging the limited assistance they might provide. Those cases turned on their own facts, and there does not emerge from them a pattern which might provide guidance in the present case. Mr Ramage provided Judicial Commission statistics which, again, are of limited assistance. 57Most importantly, as the Crown prosecutor pointed out, in Mr Hsu's appeal to this court a ground manifest excess was rejected. As I have said, I am not persuaded that Judge Charteris erred in his discretion in arriving at an appropriate relativity between the sentence passed on Mr Hsu and those passed upon the applicants. It must also be remembered that in the case of both applicants further offences were taken into account on the Form 1, including a serious offence of supplying methylamphetamine. In all the circumstances, a submission that the sentences passed on the applicants for this offence are manifestly excessive cannot be sustained. 58As to Mr Matthews' offence of selling firearms on an ongoing basis, it can be said again that there was no danger of those weapons being disseminated into the community. Nevertheless, it was rightly characterised by his Honour as "an extremely serious matter." Mr Ramage also supplied statistics in relation to that offence but, quite apart from the limitations inherent in statistics, they record only six cases. In any event, his Honour's sentence of 7 years and 3 months is within the figures which they disclose. 59I am not persuaded that that sentence either is manifestly excessive. In sentencing for that offence also his Honour had to take into account matters on a Form 1. Further, as it was a distinct episode of criminality from the drug offence, I see no error in the extent to which sentence for the drug offence was accumulated upon it. 60Nor am I persuaded that the aggregate sentence passed upon Mr Matthews is manifestly excessive, given the totality of the criminality involved. In arriving at it his Honour had regard to all the subjective factors favouring him. In the light of Dr Greenaway's prognosis, Mr Ramage submitted that it was effectively a death sentence. An estimate of life expectancy is no more than that, and one hopes that Mr Matthews will live to enjoy release, whether on parole or at the expiration of the entire sentence. However, unpalatable as it may be, the authorities recognise that an appropriate sentence may involve the risk that the offender spends the rest of his or her life in custody: R v Holyoak [1995] 82 A Crim R 502, per Allen J at 507. 61It is necessary, however, to specify a non-parole period in respect of the sentence on the firearms charge. Making a modest departure from the statutory proportion in recognition of his Honour's finding of special circumstances, I would fix a non-parole period of 5 years.

Orders 62Accordingly, I would grant leave to appeal to Mr Dang but dismiss his appeal. 63In relation to Mr Matthews, I would grant leave to appeal and allow the appeal in part. I would quash the sentence on the offence of selling firearms on an ongoing basis and, taking into account the matters on the relevant Form 1, sentence him for that offence to a non-parole period of 5 years, commencing on 23 April 2008 and expiring on 22 April 2013, and a balance of term of 2 years and 3 months, commencing on 23 April 2013 and expiring on 22 July 2015. I would confirm the sentence for the offence of supplying ecstasy, and its commencement date. In the result, the aggregate sentence of imprisonment for 16 years with an effective non-parole period of 11 years, dating from 23 April 2008, stands. He remains eligible for release on parole on 22 April 2019. 64Davies J: I agree with Hidden J.

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