R v Choi

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeal - agreement to supply large commercial quantity of ecstasy - error in fact finding by sentencing judge - error in assessment of role of offender and objective seriousness of offence - extent of combined discount for plea and assistance - whether excessive weight given to subjective features - whether sentence manifestly inadequate

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 Crimes (Appeal and Review) Act 2001

Brown v R; R v Brown [2010] NSWCCA 73 McBeth v R [2009] NSWCCA 235 Mulato v R [2006] NSWCCA 282 R v Barlow [2010] NSWCCA 215 R v Day (1998) 100 A Crim R 275 R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 CASES CITED : R v JW [2010] NSWCCA 49 R v Kalpaxis [2001] NSWCCA 19; 122 A Crim R 320 R v Mostyn [2004] NSWCCA 304; 145 A Crim R 304 R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Yaghi [2002] NSWCCA 396; 133 A Crim R 490 R v Zamagias [2002] NSWCCA 17

PARTIES: Regina (Applicant) Anthony Choi (Respondent)

COUNSEL: Ms S Dowling (Applicant) Ms C Nash with Mr D Kang (Respondent)

SOLICITORS: Solicitor for Public Prosecutions Hans Kim Lawyers

IN THE COURT OF CRIMINAL APPEAL 2009/130965

GILES JA HISLOP J R A HULME J

17 December 2010 Regina v Anthony CHOI Judgment 1 GILES JA: I agree with R A Hulme J. 2 HISLOP J: I agree with R A Hulme J. 3 R A HULME J: This is an appeal against sentence brought by the Crown pursuant to s 5D Criminal Appeal Act 1912. On 20 August 2010 the respondent was sentenced by her Honour Judge Sweeney in the District Court for an offence that between 18 and 29 November 2008 he knowingly took part in the supply of not less than the large commercial quantity of a prohibited drug, namely 3,4 methylenedioxymethylamphetamine (MDMA).

4 The offence is against s 25(2) of the Drugs Misuse and Trafficking Act 1985. The maximum penalty prescribed is imprisonment for life and/or a fine of $550,000. Under the Crimes (Sentencing Procedure) Act 1999 there is also prescribed for this offence a standard non-parole period of 15 years.

5 In sentencing the respondent for that offence he asked that his guilt in respect of two charges listed on a Form 1 document be taken into account. They were charges of possession of relatively trivial quantities of prohibited drugs.

6 The learned sentencing judge imposed a sentence of imprisonment for 17 months 15 days and ordered that execution of the sentence suspended pursuant to s 12 Crimes (Sentencing Procedure) Act upon the respondent entering into a good behaviour bond. The somewhat unusual length of the sentence is explained by the fact that her Honour took into account a period of approximately six and a half months of pre-sentence custody. Accordingly the judge was of the view that a sentence of imprisonment for two years was appropriate.

7 A notice of appeal was signed by the Director of Public Prosecutions on 21 September 2010. It was filed and served upon the respondent the same day. No issue is taken in relation to any delay in the Crown bringing the appeal.

8 There was an agreed statement of facts. It is necessary to provide a rather detailed summary as the appeal involves a substantial challenge to her Honour's findings of fact. 9 Joseph Kwon was targeted in the course of a police investigation into the supply of ecstasy. Kwon engaged in a number of sales of ecstasy tablets to an undercover police officer. His mobile telephone was intercepted and this led police to the respondent. The following events and telephone conversations occurred.

10 During a telephone conversation on Wednesday 19 November 2008 Kwon asked the respondent if he wished to partner him in the supply of a large quantity of ecstasy tablets to his customer (the undercover officer) and split the profit. Kwon said that if the current drug supply he was engaged in went well, "he [the undercover officer] would buy 30,000", meaning 30,000 ecstasy tablets. The respondent replied, "I can do that". Kwon asked, "What price can you give me" and the respondent replied that he would call him back.

11 There was another conversation later that night in which the respondent told Kwon, "I'm still waiting for the guy to call me". In the earlier conversation Kwon had referred to having supplied his customer with "white teddy bear". In this conversation Kwon asked, "do you have something else to show … just the teddy bears uh?" The respondent replied, "no, it's not that. It's a different one. It's better". Kwon asked what it was and the respondent replied that he would get back to him.

12 Kwon and the respondent spoke again by telephone the following day. At the end of the conversation Kwon asked the respondent to "give me a price on the 10,000" and the respondent agreed, saying that he would call "him" today or tomorrow.

13 On Sunday 23 November they spoke over the telephone about the same subject. The respondent asked Kwon whether his "friend" still wanted "it". Kwon asked the price and the respondent said, "ten to us". Kwon asked, "for one thousand?" The respondent replied to the effect that this was the price for three thousand. There was then some conversation about when the transaction would occur.

14 The respondent explained that he was leaving in a week (he was booked on a flight to China on Monday 1 December 2008 and would be away for one and a half months). The respondent said, "Uh when can you get back to me 'cause I've got to tell him". Kwon told the respondent he was meeting the undercover officer on Tuesday and would ring the respondent then.

15 In a telephone call on Tuesday 25 November, reference was made to the 30,000 tablets. Kwon said, "Can we wrap it up this week?" The respondent replied, "Yeah, the guy will do it straight away". Kwon asked the price and the respondent replied, "I think the guy told me ten". Kwon reiterated it was for thirty thousand to which the respondent replied, "I have no idea, I have no idea". The respondent asked, "what's it gonna take for your guy to take it like?" Kwon replied, "Straight away. There is money now". The respondent asked if "he" needed to try it out and Kwon replied that the respondent should provide two samples. The respondent said he would "get it today".

16 In a further conversation about two hours later, Kwon indicated that he would arrange a hotel room in the city and asked the respondent, "Are we gonna do it in there?" The respondent approved the suggestion. The conversation moved to the subject of price and Kwon said, "Give me a cheap price so that we have more to ourselves". The respondent replied, "Oh that's alright. Buddy, what, what are you looking at?" Kwon told him the price paid for two thousand tablets in a recent transaction was $10.50 [per tablet]. The respondent suggested seven [dollars per tablet]. Kwon countered with "seven fifty" ($7.50 per tablet). He also suggested that "if we put one dollar on top, it's like fifteen grand each". The respondent said he would get back to him.

17 Kwon then telephoned the undercover officer and told him the price for the tablets. The officer asked Kwon to speak to his supplier to find out what would be the best day.

18 Kwon and the respondent subsequently arranged to meet that evening so that the respondent could provide him with a sample of the tablets. Kwon then rang the undercover officer and told him that he was obtaining the sample that night. The officer asked him to hold on to it but to call him back that night to tell him "about the big one".

19 Kwon and the respondent had a further conversation that afternoon in which the respondent quoted a price for the supply of 30,000 tablets at $7.00 per tablet. Kwon indicated that the selling price would be $7.50, making a profit of $15,000 on the transaction. The respondent replied, "I'm fucking happy with that man … when is it happening?" Kwon replied, "Maybe Sunday". The respondent replied, "Sunday? I leave on Monday at six in the morning … can't we organise it a bit earlier?" Kwon undertook to call him back.

20 Kwon promptly rang the undercover officer and told him he could provide the drugs for $8 per tablet. However, he then called the respondent and told him that the price was $7.50, stating "it means you and I will earn $7,500 each" and that the undercover officer wanted the transaction conducted on Saturday. The respondent said, "Oh not yet, not yet, I'll get back to ya".

21 Later that evening the respondent met Kwon and provided the promised sample of the ecstasy tablets that were to be supplied to the undercover officer. Kwon then rang the officer and said he had "the two samples". Still later that evening the respondent told Kwon that his suppliers required a $10,000 deposit prior to manufacturing the 30,000 tablets "cause they're just thinking we're blow arsing". 22 Interception of the respondent's telephone service by investigating police was authorised and commenced on Wednesday 26 November.

23 That day, Kwon told the undercover officer that the supplier needed a 10 per cent deposit. The officer asked Kwon to put up the cash because he would not have time until he saw him on Friday. Kwon then telephoned the respondent. They discussed how they could raise $10,000. The respondent said, "I don't know anyone man". Kwon indicated that he should be able to borrow some money and would call back. 24 Kwon proceeded to raise the necessary money by a relatively small sale to the undercover officer and by borrowing some money from a friend. At 8.02pm on Thursday 27 November he rang the respondent and asked him to come and pick up the money. The respondent said that he did not have a car but would try and arrange a lift. Kwon asked if the respondent's supplier was sure "about this whole thing" and the respondent replied, "yeah".

25 A short time later the respondent spoke with an unknown male who asked whether he had got the 10 per cent deposit and indicated he would provide a different sample of the 30,000 ecstasy tablets. The respondent indicated that he had already provided a sample given by this supplier. The respondent said, "I gave him hearts because I thought you were gonna give me hearts… can you do it by tomorrow morning?" The male asked, "what thirty?" The respondent replied, "'cause I already - yeah thirty for tomorrow morning". 26 The male said that he would require the deposit. The respondent replied, "Yeah can you get it off me tonight? The thing is my friends in um Lidcombe … Do you reckon you can drive - you can drive me ah later tonight to Lidcombe and then pick it up off him?. The male replied, "Oh sure. Okay".

27 At 9.20pm the male rang the respondent back and said, "don't think the guy can do it by tomorrow morning… it's too late for it", but that he would call "him" and then call the respondent back.

28 At 11.52 that night Kwon called the respondent and said, "Oi they're not gonna like call it off or anything is it?" The respondent said, "Ah okay I'll give him a call back and tell him to find anyone, anyone". Kwon asked, "What, you haven't got any?" The respondent replied, "No, the guy that's supposed to be making tonight is not picking up at the moment". He said that he would call "the guy". 29 Kwon called back about 20 minutes later to find out what was happening. The respondent told him, "Yeah. I'm just waiting on him now … might not be able to be tomorrow … he said he can't get in contact with the guy who has it". Kwon encouraged the respondent to "push it for tomorrow" because he had booked the hotel.

30 About half an hour later, the respondent called an unknown female and asked, "Do you know anyone who's got a lot at the moment?" The statement of facts does not disclose what her response was. However, the respondent immediately called Kwon and told him that he was unable to source the 30,000 ecstasy tablets for that day (Friday 28 November). He said, "They said they didn't have 30,000 … but like if you want it you have to wait for materials. They don't have materials. … They don't have enough … Until - I'll be gone by then so". He did say, however, that ""they can do 15,000 they said. Probably 15,000 - 20,000 … by Saturday. He's gonna give me a call tomorrow". Later that morning Kwon telephoned the undercover officer and told him there was a possibility of supplying 15,000 tablets that day. 31 At 9.51am on Friday 28 November, Kwon called the respondent and asked if they could "at least do a couple of thousand today?" The respondent said, "Yeah" and said he would make some calls to see if anyone was ready. He called Kwon back at 12.20pm and asked, "Does he still need?" Kwon indicated that he had already organised "it" but "he needs it now". Kwon said that he was in the city and was heading to the hotel "to give at least 2,000 first".

32 At 1.34pm a man named David Lee telephoned the respondent and said, "Oi you said 10,000 yeah?" The respondent replied, "Or if you can 20,000". Lee replied that he would let the respondent know in a couple of hours. He added, "You know for the 2,000 … if you'd called me earlier I definitely could have done it" and the respondent replied, "It's too late now".

33 At about 2.30pm, Kwon was arrested whilst conducting a drug transaction with the undercover officer in a hotel room (he sold him 2,000 ecstasy tablets). The respondent was also arrested that day. During a search of his home police located 3 tablets in a small plastic bag - 1 white ecstasy tablet and 2 green 1-benzylpiperazine tablets. The possession of these drugs comprised the offences taken into account.

34 The statement of facts included information about other transactions between Kwon and the undercover officer. They involved 500 white "teddy bear" shaped ecstasy tablets (102.2 grams) supplied on 17 November 2008; 500 white "heart" shaped ecstasy tablets (147.5 grams) on 27 November 2008; and 2000 "teddy bear" tablets (394.1 grams) on 28 November 2008, the day he was arrested.

35 As to the weight of the substance that 30,000 tablets would entail, the sentencing judge said this: "When Mr Kwon supplied the 2,000 tablets to the undercover officer he was arrested… The 2,000 tablets were seized and analysed and it seems to be on the basis of the analysis and weight of the various tablets which Joseph Kwon had supplied to the undercover officer that the weight of 30,000 tablets has been calculated to bring the quantity into the large commercial quantity specified for the drug".

36 Her Honour did not say anymore as to what this indicated as to the quantity. The statement of agreed facts indicates that the weight of the 2,000 tablets referred to by her in the passage above was 394.1 grams. Applying that as a broad guide, 30,000 tablets would equate to about 5.9 kilograms. The large commercial quantity prescribed for MDMA in Schedule 1 of the Drugs Misuse and Trafficking Act is 0.5 kilograms.

37 The respondent presented a powerful and impressive subjective case. He gave evidence, as did his mother. Additionally, there was a Pre-Sentence Report, a report by Ms Kerry Watson, psychologist, and a number of testimonials. There were also documents relating to the respondent's education, both at high school and university. There were documents confirming that he was to travel to China in December 2008 as a part of his university course.

38 The respondent was aged 20 at the time of the offence. He had no previous criminal record. The judge found that he was a person of otherwise good character.

39 His upbringing and developmental history was described as unremarkable. He was raised in a close and supportive family. He was educated at a private high school where he achieved commendable academic results and participated in a variety of cultural and other extracurricular activities. Upon leaving high school he enrolled to undertake a degree in architecture at the University of New South Wales. He was in the last semester of that course at the time of sentencing. There was evidence to the effect that the university would only accommodate a deferral of the continuation of his studies for a maximum of 12 months and, so it was submitted, a full-time custodial sentence might jeopardise the acquisition of his degree.

40 The respondent remained in custody for 6 months and 12 days from his arrest until he was admitted to bail on 9 June 2009.

41 There was evidence that the respondent commenced using cannabis at the age of 18 and ecstasy at the age of 19. His use was described as recreational at first but it escalated to the point where he was using the drug four nights a week, whether in company or alone. Part of the history contained in the psychological report was that the respondent's abuse of ecstasy continued for some twelve months until he identified that "it was taking its toll on my body and mind". The respondent also said that he attributed his abuse of ecstasy in that period to "getting involved in the dance club scene and with the wrong crowd".

42 Ms Watson reported that the respondent said that he had completely ceased using cannabis and ecstasy for some 18 months. Her report is dated 10 February 2010 and so that would be about August 2008. However it seems to have been accepted that the correct position was that the respondent was using those drugs up until the time of his arrest. That certainly seems to have been her Honour's understanding of the situation.

43 The respondent commenced gambling at the age of 18 and Ms Watson reported that this rapidly progressed to the point of being problematic. She said that the respondent would gamble compulsively until he had exhausted all available funds.

44 There was evidence that the respondent had not engaged in illicit drug use or gambling since his arrest. Upon his release on bail he had been attending both Narcotics Anonymous and Gamblers Anonymous meetings. He re-engaged in his university studies and undertook volunteer work at the St Vincent de Paul Ozanam Learning Centre and at the Matthew Talbot Hospital. He also volunteered at his local Christian community aid centre. The judge described this volunteer work as a demonstration of the respondent's remorse and contrition. The explanation he gave for having engaged in this volunteer work was "because I wanted to kind of give back to the community (that) I could have potentially harmed".

45 Subjective mitigating factors to which her Honour made specific reference were the respondent's good character, his unlikelihood of re-offending, his progress towards rehabilitation (which she described as "successful to a substantial degree"), remorse and the plea of guilty.

46 The plea of guilty was entered in the Local Court at what was described as the "first reasonable opportunity". Although the judge did not quantify a specific reduction of the sentence for the utilitarian value of the plea of guilty, for reasons I will come to shortly, it was common ground that it warranted a reduction of 25 per cent.

47 A significant aspect of the case presented by the respondent was the assistance he had provided to police subsequent to his release on bail. The judge thought it better not to go into detail about this aspect of the evidence in her sentencing remarks but noted that the detail was to be found in the transcript of the evidence given by the respondent in closed court and in a confidential letter which became exhibit B. The judge did however say: "He went beyond providing information and provided practical assistance over a period of time which was not brief. The operation did not come to fruition in the sense that no person was arrested and no drugs were seized however the police believe (the respondent) should be assisted in his sentence by reason of his assistance to them and so do I. Although [the respondent's] assistance did not result in arrests or drug seizures what he did should be considered of high value. It had the potential to put him at risk. It involved some real demands on his time and personal resources. It is a further practical demonstration of his remorse and contrition."

48 When cross-examined by the representative of the Crown, the respondent indicated that if he was sentenced to full-time custody he would not ask to be placed on protection.

49 The judge indicated that she would reduce the sentence that she would impose upon the respondent by 50 per cent for a combined consideration of his plea of guilty and his assistance to authorities.

50 As the offence was one for which there was prescribed a standard non-parole period it was necessary for her Honour to make an assessment of the objective seriousness of the offence. Comments and findings relevant to this subject were made at various points throughout her sentencing remarks.

51 After referring to the conversation between Kwon and the respondent on 23 November 2008, which included reference by the respondent to his departure for China on 1 December 2008, the judge referred to the apparent expectation or hope by Kwon and the respondent that the transaction would occur before the respondent embarked upon that trip. Her Honour then commented, "In reality as it turns out there was no real prospect, in my view, of that happening".

52 In relation to the conversation on 25 November 2008 in which Kwon had reiterated that the desired quantity was 30,000 tablets and the respondent had replied, "I have no idea, I have no idea", the judge commented that she thought that was "also some indication of his real involvement in this transaction".

53 Later in her remarks, when speaking generally about the offence, the judge made a number of comments including the following: · The respondent, whilst willing to try and find someone, really did not seem to have any real source of the 30,000 tablets. · "Joseph Kwon and [the respondent] were a couple of young men who were playing a game that was out of their league. [The respondent] could not realistically have effected this transaction and I am not sure that Joseph Kwon could have either …". · "In my view Joseph Kwon and [the respondent] were really not big players able to effect this size of supply. [The respondent] particularly was not in a position to source the 30,000 tablets despite leading Joseph Kwon to understand he could. In my view he [the respondent] was grandstanding. What he did involved a lot of talk. There was some action on the part of Joseph Kwon. There was little action on the part of [the respondent] but there was also a lot of flurry". · "The drugs did not exist and could not realistically have been obtained by [the respondent]". · "His involvement in the offence was partly due to his use of drugs. He had been using ecstasy since the age of 18 and his use had escalated and that drug affected his judgment as that drug does to people". · The respondent's gambling problem did not excuse his involvement but explained his motivation to obtain money. · "The amount of drugs sounds horrifically high but there was no real prospect of [the respondent] obtaining such a quantity of drugs". · The respondent's role was little more than a "youthful fantasy". · The respondent's involvement extended over only a short period of time.

54 Her Honour then announced that she regarded the respondent's involvement in the transaction as being "in the lower range of seriousness of offences of this kind given that he was never really in a position to bring his part of the transaction to fruition". She indicated that this was the reason the standard non-parole period need not be applied although she immediately noted that it could not be "lost sight of".

Ground 1: It was not open to the sentencing Judge to find, "Joseph Kwon and [AC] were… not … able to effect this size of supply" and "The drugs did not exist and could not realistically have been obtained by [AC]" and "his role was little more… than a youthful fantasy"

55 At the outset of a consideration of this ground it is important to observe that the function of this Court in relation to fact finding by a sentencing judge is limited. The principles were succinctly stated by McCallum J in McBeth v R [2009] NSWCCA 235: [30] Many of the applicant's grounds concern the sentencing Judge's findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. This Court's power to substitute its own findings of fact for those of the trial judge arises only if the Judge "mistakes the facts" in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is "all one way", or that the Judge has misdirected himself: R v O'Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing.

56 The judge was of the view that the respondent could not "realistically" have obtained the drugs for the purpose of Kwon's proposed transaction with the undercover operative. The passage quoted in the statement of the ground is not the only passage in the remarks on sentence to that effect. Some of those I have listed above are to the same effect.

57 On behalf of the respondent it was submitted that the findings referred to in these grounds were findings that were open to her Honour on the evidence. It was submitted that the evidence disclosed that the respondent's method of attempting to source the drugs was "amateurish". The respondent had given evidence that the unnamed person referred to in the statement of facts from whom he was endeavouring to source the drugs was a person he had met by chance in a nightclub. According to the respondent, that person had said to him that if ever he needed any help with drugs he should come to him.

58 Further, it was submitted that this Court should not find error through a process of speculating as to whether the respondent would have been able to acquire the drugs if further time had been available to him to do so. It was contended that it was "demonstrably clear" that the respondent was not able to source the 30,000 ecstasy tablets by 28 November 2008. Accordingly it was submitted that the 30,000 tablets was a "fictitious amount".

59 If her Honour's findings in relation to the ground 1 point were limited to a finding that the respondent was not able to acquire the drugs by the time of his arrest, there could be no argument about that being a finding that was open to her. However, her Honour went beyond that. The statement, for example, that, "the drugs did not exist and could not realistically have been obtained by (the respondent)" was not a finding that was available on the evidence. As the Crown submitted, there was no evidence that the respondent could not have sourced the 30,000 tablets if further time had been available. Reference was made to some examples of conversations which supported this proposition.

60 There was a telephone conversation with an unknown male at 9.20pm on 27 November 2008 in which the male said, "don't think the guy can do it by tomorrow morning… it's too late for it". Counsel for the Crown submitted that this was not an indication that the drugs could not be acquired but simply an indication that they could not be acquired by the following morning.

61 The statement made by the respondent to Kwon in the early hours of 28 November 2008 that, "they can't do 30,000 unless you wanna wait, which I can't wait", indicated that it was not so much a matter of the drugs not being available, but simply an indication that the drugs were not presently available but that they would, or could, be available in the future.

62 The respondent had a conversation with a David Lee at 1.34pm on 28 November 2008. Lee said, "Oi you said 10,000 yeah?" The respondent replied, "Or if you can, 20,000". Lee replied that he would let the respondent know in a couple of hours. The respondent was arrested at 3.18pm that day. Accordingly, it could not be said that the man Lee was not a realistic source of supply of at least some of the quantity that the respondent was endeavouring to obtain for the purpose of the sale to the undercover officer. 63 It is important to bear in mind that the criminality inherent in the offence to which the respondent pleaded guilty was an agreement to supply, not the fulfilment of such an agreement. The agreed facts disclosed that he entered into such an agreement without hesitation in the very first conversation with Kwon on 19 November. He continually reaffirmed his participation in such an agreement over the ensuing nine days. He approached three different people in his endeavour to acquire a substantial quantity of drugs in order to fulfil the agreement. The evidence disclosed that the first contact indicated a preparedness to provide the drugs, but was unable to do so within a short timeframe. There was no evidence of any inability of the second and third contacts to fulfil at least a significant proportion of the order.

64 In my view, and with respect, the findings by the sentencing judge that the respondent and Kwon were not able to effect this size of supply, that the drugs did not exist, and that they could not realistically have been obtained by the respondent, were findings which were not open. The genuineness of the respondent's endeavours to fulfil his agreement is indicated by his obtaining and providing the sample tablets. It follows that the description of the respondent's role as "youthful fantasy" cannot be sustained. 65 I would uphold ground 1.

Ground 2: It was not open to the sentencing judge to find ecstasy had "affected his [the respondent's] judgment"

66 The quotation in the statement of the ground should be put in context. The sentencing judge said: "His involvement in the offence was partly due to his use of drugs. He had been using ecstasy since the age of 18 and his use had escalated and that drug affected his judgment as that drug does to people".

67 There was no evidence before the District Court to the effect that the respondent's judgment was impaired by drug use. Indeed there was evidence to the contrary. The applicant was successfully engaged in his university studies, passing in all of his subjects. His mother gave evidence that the family, which on all accounts was a close one, was completely unaware of the respondent having drug (or gambling) problems. Her evidence was to the effect that he was always a "good boy" and that nothing untoward about his behaviour had been detected, or any change in his normal routine. The Pre-Sentence Report includes that the respondent's sister had confirmed that there were no indications of the respondent becoming dependent upon illegal drugs.

Ground 3: The sentencing judge was in error in assessing the role of the respondent

Ground 4: The sentencing judge was in error in assessing the respondent's criminality and objective seriousness of the offence

69 It is convenient that these grounds be considered together.

70 It was submitted by the Crown that the judge's assessment of the matters the subject of these grounds was infected by the errors as to fact finding referred to in the previous grounds. There was a characterisation in written submissions of the judge's erroneous assessment as being tantamount to a finding that the respondent had done "very little towards (achieving) the impossible". It was submitted that what the respondent had in fact done was to actively arrange to fulfil as much of the order as could be done in the time available. This included that he had provided two samples of the drug to be passed on by Kwon to the undercover officer.

71 I accept that Kwon's offending was at a more serious level than that of the respondent. The evidence disclosed that he was actively engaged in multi-faceted drug dealing. By contrast, in the respondent's case the evidence disclosed only his involvement in the offence charged. On the other hand, the relative importance of the role played by the respondent should not be underestimated. It appears that Kwon, actively involved in drug supply, had some faith in the respondent's ability to provide him with a larger quantity of drugs than he, Kwon, was in the habit of supplying. Moreover, it is not unimportant that the agreement between Kwon and the respondent was that they would share equally in the profit to be made (even though, unbeknown to the respondent, Kwon planned to take a greater cut).

72 The quantity of the drug which was the subject of the agreement to supply was another significant factor in the assessment of the objective seriousness of the offence. Broadly estimated, this was almost 12 times the threshold for the large commercial quantity.

73 Submissions on behalf of the respondent included the observation that the cross-examination of the respondent by the representative of the Crown was limited in that it did not really touch upon the role played by the respondent at all. However, as the written submissions on behalf of the respondent also observe, the judge had before her an agreed statement of facts. The role of the respondent was obvious from that statement. He did not seek to portray it as any less in his evidence in chief. There was no occasion for the Crown to challenge anything in cross-examination. 74 It was submitted that the finding by her Honour of the offence being part of a "youthful fantasy" was a conclusion open to her Honour based upon a number of findings that she made. The problem with this submission is that it is based in large part upon the various statements that her Honour made that have been considered under ground 1 and determined to have been unfounded.

75 There are two matters referred to at this part of the submissions for the respondent that were not considered in the context of the previous grounds. The first was the finding of the respondent's role as being "much subordinate to and distinguished from Joseph Kwon's". I accept that the respondent played a role that was different to, and thereby distinguished from, the role played by Kwon. I also accept that, in one sense at least, the respondent's role was subordinate to that of Kwon. The ultimate goal of the pair was to achieve a sale of 30,000 ecstasy tablets to the undercover officer. Kwon was the person who had contact with the officer. Clearly, the transaction could not occur without Kwon. Kwon was otherwise engaged with the officer in the supply of drugs. He looked to the respondent as a person who could acquire the 30,000 tablets. Whether the respondent was the only person who could have provided that service for Kwon is unknown, although I hasten to add that there is no suggestion that Kwon sought out any other potential supplier.

76 The other point raised in the submissions was the finding that the respondent became involved, "at the behest of Joseph Kwon". I accept that this was a finding well open to her Honour because the respondent only became involved when approached by Kwon. However, the approach by Kwon must be seen in its proper context. The respondent did not take any persuading to become involved.

77 I acknowledge the limitations on this Court in reviewing a finding of a sentencing judge as to the objective seriousness of an offence. The question for this Court is whether the finding made was one that was open and not whether this Court would have come to a different view: see, for example, Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37].

78 The sentencing judge's conclusion as to the objective seriousness of the offence was expressed in the following terms: "I assess (the respondent's) involvement in this transaction as in the lower range of seriousness of offences of this kind given that he was never really in a position to bring his part of the transaction to fruition". (Emphasis added).

79 This is a clear indication that the erroneous findings of fact discussed under ground 1 were the basis of her Honour's assessment of the objective seriousness of the offence. They lead her Honour to an unwarranted conclusion.

80 Relevant to an appropriate assessment of objective seriousness was the fact that, in contrast to Kwon, the respondent's offence was not committed in the context of other drug supply activity. The respondent was, in the sense I have referred to, subordinate to Kwon. But the respondent was not only a party to an agreement to supply; he actively, earnestly and urgently sought a substantial quantity of drugs (conservatively at least 10 times the large commercial quantity) in order to fulfil his role in the agreement. There was no evidence that he would not have been able to do so, given time. Of course, the agreement to supply did not involve an actual supply. No drugs passed hands and none were disseminated into the community. On the other hand, the respondent's expectation, or hope, was that this would occur, and that he would make a substantial profit. 81 I am of the view that the objective seriousness of the respondent's offence fell at about the middle of the lower half of the range. A fair inference, particularly in view of the sentence imposed and the degree of departure from the standard non-parole period, is that the judge's finding of "in the lower range" amounted to a finding that the offence was at the low end, or the bottom, of the range. That was not a finding that in my view was available upon a reasonable view of the objective (and agreed) facts. Grounds 3 and 4 should be upheld.

Ground 5: The combined discount of 50% for the plea of guilty and assistance to the authorities was not open

82 After describing the nature of the respondent's assistance in brief terms the sentencing judge stated that she would allow the combined discount of 50 per cent. The only indication given as to what was taken into account in this assessment was that the assistance was of "high value", but it was assistance that did not result in any arrests or drug seizures. The judge also referred to the assistance having put the respondent at potential risk and that it involved "some real demands on his time and personal resources". (I take her Honour's reference to it being a "further practical demonstration of his remorse and contrition" to be irrelevant to the discount because that would have been to double count remorse as a mitigating feature).

83 There was no evidence that the respondent would serve any custodial sentence in more onerous conditions. Even if it did eventuate that the respondent was classified into protective custody, it cannot be assumed, in the absence of evidence, that the conditions would be more onerous: R v Mostyn [2004] NSWCCA 304; 145 A Crim R 304.

84 There was no reference in the sentencing remarks to s 23 Crimes (Sentencing Procedure) Act. That was not mandatory: Brown v R; R v Brown [2010] NSWCCA 73 per Howie J at [43]. The stipulation in s 23(3) was, however, important. It provides that: (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

85 I do not regard the Crown submissions in this respect as being of significance. It is difficult to see that any failure to have regard to s 23(3) played any more than a minor part in the imposition of a sentence that the Crown asserts is manifestly inadequate. It was the starting point of 4 years that was the major contributor to that result, if the sentence can be so characterised.

86 It was said in R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 per Howie J that: [5] … discounts for a plea of guilty and assistance of more than 40 per cent should be very exceptional, 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". There should not be a combined discount for a plea of guilty and assistance greater than 40% only in exceptional cases where there is no evidence of assistance leading to more onerous custodial conditions

87 The Crown takes issue with the judge's description of the assistance as being of "high value". There is merit in this as the evidence was that the law enforcement authorities derived no benefit from it at all. As the Crown put it, the assistance the respondent gave was "little more than intelligence value". Section 23(2)(b) requires a sentencing judge to have regard to the significance and usefulness of the offender's assistance.

88 However, there is another aspect of the applicant's assistance that warranted a higher level of reduction of sentence than would ordinarily be the case with assistance that is "little more than intelligence value". Section 23(2) also requires that the court have regard to: (d) the nature and extent of the offender's assistance or promised assistance

89 Here, the nature of the assistance was active and on-going for a period of about 6 months. For about a month the respondent was working 2 or 3 nights a week visiting nightclubs and similar venues anywhere from 9.00pm until 3.00am.

90 While the combined discount of 50 per cent was generous, this was a highly unusual case of assistance. It involved substantially more than the respondent providing information. I am not of the view that the level of discount was beyond the scope of her Honour's discretion in the unusual circumstances of the case.

Ground 7: The sentencing judge erred in deciding to suspend the sentence before setting the term of imprisonment

91 The Crown submitted that the judge's sentencing remarks disclosed that, contrary to what was said in R v Zamagias [2002] NSWCCA 17 about the correct sequence of determining aspects relevant to an assessment of sentence, her Honour first assessed the proportion by which the sentence should be reduced for the respondent's plea of guilty and assistance, then determined that the sentence should be suspended, and then determined the length of the sentence. I do not accept that this was the approach she adopted.

92 At the conclusion of her remarks, her Honour said: I was asked to deal with (the respondent) by way of a suspended sentence. The Crown did not expressly rebut that submission although perhaps did by implication in her submissions. At first that seemed a bold submission but on consideration and taking into account what (the respondent) actually did and therefore the low objective seriousness of his actual offence, his plea of guilty, his assistance to authorities and his dedicated attention to his rehabilitation to date and which has been successful to a substantial degree I have come to the view that I can accede to that submission.

93 This may indicate that there was the error for which the Crown contends. However her Honour continued: For transparency I started with a sentence of four years imprisonment. I have reduced that by 50% for the plea of guilty and assistance to reach two years. Since I cannot backdate a suspended sentence I have deducted from the two years the 6 months and 12 days (the respondent has already spent in custody, I then rounded down slightly. Taking into account the two matters on the Form 1 I sentence you ….

94 In my view this indicates that her Honour had approached her task in the correct manner by first determining that there should be a sentence of imprisonment and what its term should be before considering the manner in which it should be served. I would not uphold this ground.

Ground 6: The sentencing judge placed too much weight upon the respondent's subjective feature and insufficient regard to deterrence and the other purposes of punishment

Ground 8: The sentence imposed was manifestly inadequate

95 The Crown expressly conceded that the respondent had a strong subjective case and that the promotion of his rehabilitation served one of the purposes of sentencing listed in s 3A Crimes (Sentencing Procedure) Act. However, it was submitted that the sentencing judge had allowed these circumstances to "overwhelm or excessively dilute" the objective gravity of the offence, particularly in a serious drug supply case in which general deterrence is a significant consideration. It was contended that the result was a manifestly inadequate sentence, both in terms of its length and by the decision to suspend its execution.

96 The Crown contrasted the present case to another in which there was a two year suspended sentence imposed for an offence involving an offer to supply a large commercial quantity of a prohibited drug (cocaine). That was R v Kalpaxis [2001] NSWCCA 19; 122 A Crim R 320. The offender in that case had no means or intention of supplying the drug. In R v Yaghi [2002] NSWCCA 396; 133 A Crim R 490, Wood CJ at CL provided the following description of Kalpaxis: [11] … The case was described as " exceptional and extraordinary ", since from beginning to end it involved nothing more than a ruse by a mentally disturbed offender, who was out of touch with reality, and who was seeking to obtain sufficient money to enable him to spend time in Greece with his family, and with his father who was dying of cancer.

[14] Kalpaxis was a very different case from the present in so far as the " transaction " there involved a single offender who was mentally disturbed, whose motivation was limited, and who had no realistic prospect of success in what was an extremely amateur venture.

97 The Crown sought to distinguish that case from the present in which, it was submitted, the respondent was motivated by profit, he had every intention by his best endeavours to source the 30,000 ecstasy tablets, or a large proportion of them, and was only thwarted by being arrested.

98 For the respondent, reference was made to judgments of this Court in which it has been said that trafficking in order to feed a drug habit is less serious than trafficking for profit: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [86]; R v Day (1998) 100 Crim R 275 at 277. Counsel for the respondent invited attention in this respect to the sentencing judge's finding that drug use had affected his judgment. Attention was also invited to the respondent's problematic gambling which the judge found explained his motivation to obtain money, although she also regarded this as not excusing his offending conduct.

99 As I have earlier indicated, there was no evidence that the use of drugs had impaired the respondent's judgment. It may have explained his involvement with the drug milieu and his gambling losses may have explained his need to acquire money. These matters, however, do not reduce the gravity of the matter. 100 Counsel for the respondent also referred to R v Barlow [2010] NSWCCA 215 in support of her submission that this Court should not intervene. Barlow was, however, a case different to the present in a number of significant respects. The offence was one of supplying a commercial, not a large commercial, quantity of MDMA. The maximum penalty was 20 years as opposed to life in the present case. The standard non-parole period was 10 years as opposed to 15 years. The charge related to the supply of 10,000 MDMA tablets. The sentencing judge was not satisfied that the offence was committed for financial gain. The only evidence of it was in what the respondent told the police and what he said in evidence at his sentence hearing. Police had no idea of his involvement in drug supply before his parents alerted them to certain suspicions they held. Thereafter the respondent had fully co-operated, disclosed his guilt, and gave further assistance to authorities. The respondent was aged 19 at the time of the offence and had what McCallum J described as a "very strong subjective case". There was a 40 per cent reduction of sentence for the plea of guilty and assistance. A sentence of 2 years 6 months to be served by way of periodic detention was regarded as lenient but not manifestly inadequate. 101 Barlow was different in so many important respects. It was a unique and exceptional case. I do not believe it provides any assistance in the resolution of the present matter.

102 Counsel for the respondent also reminded the Court that it retains discretion in relation to Crown appeals despite the provisions of s 68A Crimes (Appeal and Review) Act 2001: R v JW [2010] NSWCCA 49 per Spigelman CJ at [95]. Ms Nash submitted that the Court should exercise its discretion not to intervene despite any error being established. In large part the submission was based upon the substantial rehabilitation of the respondent in the two years since his arrest.

103 In this case there is a marked discrepancy between the sentence that was imposed and that which should have been imposed. I have earlier indicated my view of the objective seriousness of the offence. The standard non-parole period was not irrelevant. I have come to the conclusion that intervention is necessary. Notwithstanding the very powerful subjective case that militated in favour of significant leniency being extended, it remained necessary, as Price J observed in Barlow at [4], for the sentence to also reflect elements which are important in commercial drug supply cases: retribution, punishment and deterrence, including general deterrence.

104 It was further submitted for the respondent that if this Court determined that it should intervene and re-sentence, an issue of parity "may" arise in relation to the sentencing of Ji Hee Jung. A week before the respondent was sentenced, her Honour Judge Sweeney sentenced a number of other persons who were prosecuted for offences detected in the same police investigation. Ms Jung had pleaded guilty to an offence of knowingly taking part in the supply of a large commercial quantity of MDMA.

105 When the respondent told Kwon that his supplier required a $10,000 deposit before the 30,000 tablets would be provided, Kwon sought to raise those funds. He proposed a sale of 500 tablets to the undercover officer for $5,000 and he borrowed the other $5,000 from Ms Jung, offering to repay her $6,000. Ms Jung lent him the money, knowing the purpose for which it was sought.

106 Ms Jung pleaded guilty and there was a 25 per cent reduction for the utilitarian value of that plea. She was 27 years old and had no previous convictions. The judge found her offence was "in the low range of seriousness". She took into account that her involvement was limited and remote from the proposed supply transaction and that she had been prevailed upon only because of an emotional connection with Kwon, her former boyfriend. Her remorse was regarded as genuine. The judge also took into account that her time in custody would be rendered more difficult because her family was in Korea and for that reason she would not be visited in gaol.

107 The sentence imposed upon Ms Jung was one of 3 years 6 months with a non-parole period of 1 year 6 months. If not for the plea, the sentence would have been one of 4 years 8 months.

108 Counsel for the respondent submitted that "any non-parole period imposed on the respondent should be significantly less than 1½ years, otherwise the respondent would have a justifiable sense of grievance". I do not accept that submission. The respondent was much more involved in pursuing the success of the proposed transaction than Jung. She made a contribution towards its success, but it was by a single act and was, as the judge described, limited and remote. She stood to make a profit of $1,000. The respondent had hopes of $7,500. The objective seriousness of the respondent's offence was markedly more serious than Jung's offence. Further, the non-parole period imposed upon Jung was, it seems, reduced in part because of the sentence being accumulated by a year upon another sentence imposed for an unrelated offence.

109 An affidavit by the respondent was read in the event this Court came to re-sentence. It discloses that he has continued with his volunteer work, has been engaging in part-time employment, has successfully completed his degree and has enrolled to undertake a masters degree from next March. There is also a reaffirmation of the respondent's profound regret and remorse. These are all relevant matters to take into account.

110 Towards the end of her judgment the sentencing judged noted that "there are always tensions between the competing purposes of sentencing". That is no more evident than in the present case. Sentencing a young man who has been brought up in a loving and supportive environment, who is intelligent, has excellent future prospects and has made a substantial contribution to the community through volunteer work is a most unpleasant task. It is necessary, however, for this Court to take a broader view of the matter by paying heed to the sentencing prescriptions imposed by Parliament and the general community interest in the punishment of those who play a role in the dissemination of drugs and the deterring of others who may be tempted to become involved. It is most regrettable that the respondent was given false hope by the unduly lenient sentence imposed in the District Court which it is necessary for this Court to correct.

111 The new sentence I propose should be back-dated in order to take into account the 6 months 12 days period of custody on remand.

112 I accept that there should be a finding of special circumstances as the Crown conceded. The sentence I propose will amount to a return to custody after the respondent has been on conditional liberty in the community in one form or another for some 18 months. He has demonstrated substantial rehabilitation in that time. He will require a significant degree of assistance when released to parole to ensure that rehabilitation is continued.

113 The total term I propose is one of 4 years 6 months after a reduction of 50 per cent from a starting point of 9 years on account of the respondent's plea of guilty and assistance to authorities. The non-parole period will be about 55 per cent of the total term.

I propose the following orders: 1. Crown appeal allowed. 2. The sentence imposed in the District Court is quashed. 3. Taking into account the offences listed on the Form 1 document, the respondent is sentenced to a term of imprisonment comprising a non-parole period of two years six months and a balance of the term of the sentence of two years. The sentence is to date from 5 June 2010. The respondent will be eligible for release on parole upon the expiration of the non-parole period on 4 December 2012. The total term will expire on 4 December 2014.

22/12/2010 - Crown's name amended - Paragraph(s) Coversheet

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