R v GIANG [2005] NSWCCA 387 | Case summary

Monday 21 November 2005 REGINA v Son GIANG Judgment 1 SULLY J: I agree with Hulme J. 2 HULME J: On 17 March 2005 this Applicant for leave to appeal was sentenced by Judge Delaney to imprisonment for a non-parole period of 1 year and 9 months commencing on 3 August 2004, with a balance of term of 1 year and 6 months on a charge under s25A of the Drugs (Misuse and Trafficking) Act 1985 (NSW). That section makes it an offence to supply for reward, on 3 or more separate occasions during a period of 30 consecutive days, a prohibited drug other than cannabis. The maximum penalty of imprisonment prescribed is 20 years. 3 Two charges on a Form 1 were taken into account. One was of goods in custody and related to a sum of $100 found on the Applicant at the time of his arrest and the other, of possession of a prohibited drug, related to a cap of heroin found in the car he had been driving immediately prior to his arrest. That arrest occurred on 3 August 2004 and he has been in custody ever since. 4 The circumstances of offending proved were that the Applicant supplied, on each of 21, 28 and 29 July and 3 August 2004 a small foil package or balloon containing heroin in return for $50. The weights of heroin supplied varied between 0.14 and 0.2 grams. In each case the purchaser was a police officer who had made arrangements by phone to effect the purchase. A place and time was arranged and on each occasion the Applicant arrived in a motor vehicle and was approached by the police officer to whom he supplied the heroin. On the occasion of purchase on 21 July which occurred about 7.30 pm the undercover operative made remarks to the effect that the Applicant and the person in the car with him were not the person she had expected to see. The Applicant remarked, "Yeah, we're the arvo shift". 5 On the first, third and fourth of the occasions referred to in the immediately preceding paragraph, there was present in the passenger seat of the vehicle with the Applicant a person, Viet Phan. On one or two occasions the money was handed to Phan who passed it over to the Applicant and it was the latter who produced and handed over the heroin. There is no evidence to establish that Phan received any benefit from the transactions. Phan was charged with 3 offences of being knowingly concerned with the supply. 6 Phan had no record, was 22 at the time he was sentenced in May 2005, had some employment history and was regarded as capable of rehabilitation. On 2 charges he was sentenced to concurrent terms of 300 hours community service and on the third a 2 year bond under s9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed. 7 Also charged with offences arising out of the same police operation as led to the Applicant's arrest was one Son Tran. He also was charged with an offence under s25A, the dates of his supply being 14, 15 and 28 July 2004. The circumstances of these occurrences were for all practical purposes the same as those involving the Applicant and the Facts Sheet in his case showed that he and the Applicant jointly effected the supply on 28 July. Mr Tran was a heroin addict, and had became involved to help pay off an indebtedness for heroin he had acquired on credit. Judge Armitage described this as containing and "element of compulsion falling short of duress" and imposed a sentence of imprisonment for a non-parole period of 12 months commencing on 25 June 2005 and a parole period of a further 12 months, directing that the sentence be served by way of periodic detention. In the course of arriving at this sentence, Judge Armitage remarked that the sentence which he would ordinarily have imposed was one of 3 years' imprisonment, a period he discounted by one third - twenty percent for an early plea and thirteen and one-third percent for remorse. 8 Mr Tran was 23 at the time of sentence. He had a criminal record for driving at an excessive speed and while suspended and also for driving whilst disqualified. The penalty for the last of these offences included a bond current at the time of commission of the Section 25A offence. He also had been for some period incarcerated in a juvenile institution but the reason for that is not apparent. 9 His family circumstances had been severely disrupted by his father's drunkenness and its consequences and Tran, while having some employment and successful study history nevertheless had had that interrupted by his own binge drinking and drug addiction, the latter habit costing up to $200 per day. Between the time of the Section 25A offence and sentence, he had participated in an unpleasant but successful home detox program and participated in counselling directed to the causes of, and preventing any relapse into, his drug addiction. Judge Armitage was clearly satisfied that Tran was remorseful and impressed with the efforts made and progress achieved in respect of Tran's addiction and rehabilitation. Judge Armitage recorded that ultimately the Crown before him conceded that periodic detention was within the proper range of the sentencing discretion and his Honour clearly regarded Mr Tran's situation as falling within the exceptional class of case where something other than full time custody was acceptable.

10 The Applicant was born on 28 September 1981. He had a minor criminal record being one count of assault occasioning actual bodily harm, one of not displaying "L" plates and one which I may describe as of driving without being accompanied by another licensed driver. He had held no gainful employment but had been involved with limited study. He had a caring family who remained willing to assist him. 11 When interviewed by the police after his arrest, the Applicant was very unco-operative and lied extensively. He gave evidence but Judge Delaney formed the view that neither his account of how he became involved in offending nor as to the degree of his involvement could be accepted. His Honour seems to have accepted however that the Applicant had had a heroin addiction, had become involved in selling to fund his own addiction, since his incarceration had been drug-free for 7 months and had attended anger management, alcohol and other courses in prison. 12 His Honour accepted that of the matters mentioned in Section 21A(3) of the Crimes (Sentencing Procedure) Act, those referred to in the following paragraphs (a), (e), (f)-(h) and (k) existed. His Honour recorded that by his plea and otherwise the Applicant had expressed some remorse "although perhaps to a lesser degree than in other circumstances". The plea was entered at the earliest opportunity and the Applicant received a 25% discount. His Honour was satisfied that there were prospects of rehabilitation although it appeared that the Applicant may not have severed his association with some anti-social and drug abusing peers. 13 The grounds of appeal advanced on behalf of the Applicant are: (i) The Applicant has a real sense of grievance at the marked disparity between the sentence imposed on him and the sentences imposed on his co-offenders. (ii) The sentence is manifestly excessive. 14 The simple answer to the second ground is that the sentence was not manifestly excessive. As was pointed out in Smiroldo (2000) 112 A Crim R 47 at 50, s25A was enacted to target dealers who organised their affairs in such a way as to limit the full effect of the Drug (Misuse and Trafficking) Act by dealing in only small quantities at a time. Talking of the section in R v Khalad, [2001] NSWCCA 169 Wood CJ at CL, sitting in a 2 judge bench made an observation which I would endorse that:- "(W)hat is important is to give full effect to the legislative policy that this section operate so as to provide strong deterrent to those who may be tempted to engage in an ongoing trade in heroin and, in particular, to deter those who are minded to stand in their shoes once they are apprehended and sentenced to imprisonment. This is necessary to combat the unfortunate reality that there seems to have been an almost endless supply of street sellers willing to move in once others of their ilk are taken off the streets." 15 In R v Clark (Unreported, NSWCCA, 15 March 1990), Hunt J, with the concurrence of Sharpe J said that:- "This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrent are to be impose on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial sentence be appropriate. That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. The position is worse when there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence. (Emphasis in the original) 16 R v Clark was prior to the introduction of s25A but, as this Court made clear in R v Kipic and Elias [2004] NSWCCA 452 at [32-3], the proposition applies in the case of street dealers such as the Applicant. 17 Counsel for the Applicant sought to place emphasis on the small quantity that the Applicant supplied on the 4 occasions that were identified in the charge. However, this submission ignores that the Applicant on his own admission was the "arvo shift". The inference is irresistible that the Applicant's activities involved selling on more than the 4 occasions relied on to establish the offence. The terms of s25A mean that this other activity may also be taken into account. 18 While quantity is a relevant consideration in the determination of the proper penalty, it is wrong to look merely at the quantity supplied and to attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom the section is directed are those who are indulging in a practice or business of supplying prohibited drugs - see Smiroldo at [15]; R v Hoon; R v Pouoa [2000] NSWCCA 137 at [39] et seq. 19 The Applicant was clearly engaging in a business operation. There were no exceptional circumstances in his case and it would have been quite wrong for the sentencing judge not to have imposed a full time custodial sentence. Neither does the fact that the Applicant was seeking to fund his own addiction help him. R v Henry (1999) 46 NSWLR 346 at [171-206, 215 et seq., 278, 331] is authority for that proposition and if addiction provided a defence against a gaol term for street dealing in drugs, the community would have no protection as many of such addicts perpetuated their addiction and sold to one another. 20 Reliance was also placed on Judge Armitage's view that an appropriate starting point for a determination of the sentence ultimately to be imposed on Tran was 3 years, whereas it is clear that Judge Delaney must have started at somewhere between 4 years 3 months and 4 years 6 months. This also it was submitted indicated error in the sentencing of the Applicant. 21 To this submission there are at least two answers. One is that sentencing is not so precise that because one judge uses 3 years, another who uses 4¼ or 4½ is wrong. A second is that there is much to be said for the view that Judge Armitage's starting point was itself too lenient having regard to the criminality inherent in the offending of which Tran and the Applicant were guilty, the 20 years maximum provided for in s25A and the authorities, some of which are referred to above. I do not need finally to decide that question. I am satisfied that Judge Delaney's starting point was not outside the legitimate exercise of his Honour's sentencing discretion and, subject to the issue of parity, the same observation may be made as to the sentence finally imposed. 22 I turn to the topic of parity. There is no basis for complaint afforded by the sentence imposed on Phan. The charges against him may have been more numerous, but they were not as serious as that to which the Applicant pleaded guilty and on the evidence before the courts Phan's criminality was substantially less than that of the Applicant. Counsel for the Applicant drew attention to the fact that Phan was originally charged with an offence under s25A, apparently inspired by three transactions when he was present with the Applicant. However, the terms of s25A do not encompass "being knowingly concerned" as s25 does although he may well have had accessorial liability under the general law. Be that as it may, on the evidence available his offending was not as serious as the Applicant's. 23 It may be doubted whether the Applicant and Tran can properly be classed as co-offenders. Certainly their criminality and the circumstances of their offending are very similar and there would seem to have been one incident in which both participated. However their conduct and circumstances of offending is no different to that of a number of other offenders who have been charged and who have had an identical role in other drug dealing operations and I would hesitate long before extending the breadth of situations which can be regarded as raising issues of parity. However, I am content to proceed on the assumption that the similarity means that parity principles apply. 24 What I have said indicates that there was no appreciable difference in the offending of the Applicant and Tran. Nor, on the sentencing judges' findings on the topic, do I see any difference in their respective motivations sufficient to differentiate between them. What difference there is lies in the assessments of their conduct since arrest and future. By the time of sentence Tran had demonstrated substantial effort and achievement towards reform and Judge Armitage took a very favourable view of his prospects. Judge Delaney did not take the same view of the Applicant. 25 In the case of the Applicant, Judge Delaney accepted that he had become drug-free and had participated in courses directed to keeping him free. However, and even though it is well known that there is some availability of drugs in prisons, becoming drug free in that confined environment does not have the same weight as achieving the same in the wider community. It must, of course, be recognised that, having been incarcerated, the Applicant's opportunities to achieve what Tran had achieved were much less and it was not possible to achieve them in the same way. However from the point of view of sentencing, often the factual situation as it exists, rather than the reasons for it, is important. 26 Furthermore it was not only the matters referred to in the immediately preceding paragraph that differentiated the Applicant and Tran. For, in contrast to Judge Armitage's view of Tran, Judge Delaney was obviously unimpressed with the Applicant's honesty in the witness box and had reservations about his remorse. Such assessments have an element of the subjective about them but, absent demonstrated error, courts have no option but to proceed on the basis of them and they do have an effect of sentencing. 27 Obviously from time to time a decision whether a particular case falls into the exceptional category justifying a sentence of other than full time custody will lie on the proverbial knife-edge and little may make the difference on which side of the knife it falls. Parity does not require that those who do not have the favourable features and who fall on the wrong side be treated the same as those who fall on the right side. In light of the favourable assessment of Tran, and the appreciably less favourable one of the Applicant, the principles of parity do not justify this Court in interfering with the sentence which, as I have indicated, was otherwise well within Judge Delaney's sentencing discretion. 28 What I have said is enough to dispose of this appeal. Accordingly I do not need to consider the question whether the sentence imposed on Tran was itself manifestly inadequate and such that the Court, in the exercise of the discretion which exists in parity cases, would not reduce the Applicant's sentence in any event. I would not wish however for my silence on the topic to be regarded as any indication that I do regard the sentence imposed on Tran as one Judge Armitage was justified in choosing. 29 I would propose that the Court give leave to appeal but dismiss the appeal. 30 LATHAM J: I agree with Hulme J.

R v GIANG

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