R v Gim Siang Lim [2001] VSCA 60

Court of Appeal (Vic)|2001-05-01|Before: WINNEKE, P., TADGELL and BUCHANAN, JJ.A.

Criminal law - Sentence - Trafficking in heroin in not less than a commercial quantity - 11 years with a minimum term of 8 years 6 months not manifestly excessive.

I will invite Buchanan, J.A. to deliver the first judgment.

On 14 July 2000 the appellant pleaded guilty to a charge of trafficking in a drug of dependence contrary to the provisions of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") and was sentenced to a term of 11 years' imprisonment. A non-parole period of eight years and six months was fixed.

This appeal is one against the sentence. The grounds of appeal are:

"1. The sentence imposed by the learned sentencing judge was manifestly excessive having regard to all the circumstances of the case and a lesser sentence should have been passed. 2. The learned sentencing judge erred in the matter in which he dealt with the issue of the appellant's prospects of rehabilitation.

3. The learned sentencing judge erred in that he placed too much weight on matters of (i) specific deterrence; and (ii) general deterrence.

4. The learned sentencing judge erred in effectively treating certain moneys found in the possession of the appellant as a circumstance of aggravation of the offence charged.

5. The learned sentencing judge erred by failing to place sufficient weight on (i) the plea of guilty by the appellant and (ii) factors and matters personal to the appellant."

The only evidence led on behalf of the appellant during the plea was the tender of a psychiatrist's report. The report was based upon an interview with the appellant. The appellant told the psychiatrist that he had worked as a chef in Singapore. In 1997 the business failed and the appellant found himself in debt to suppliers and staff. He began gambling heavily in the hope that he could recoup his losses. Instead, his debts increased. As a result of his gambling his wife left him and he retained custody of his son. He said that he became addicted to alcohol, marijuana and ecstasy. After the failure of the restaurant business, the appellant worked for a loan shark and bookmaker. He stole money from his employer to pay his outstanding debts. The theft was discovered and the appellant and his family were threatened as a result.

The appellant told the psychiatrist that he agreed to traffic in drugs because of fear for his family's safety and in order to repay his debts. In a record of interview conducted by the police, the appellant said that the money found in his possession was brought by him to Australia for the purpose of gambling. In the course of the plea the appellant's counsel asserted that the appellant possessed the heroin only for the purpose of handing it over to a third party at a time and a place to be notified.

The sentencing judge warned the appellant's counsel that he might not accept the appellant's account given in the hearsay manner I have described of the circumstances in which the appellant became involved in the commission of the crime, his custodial possession of the heroin and his explanation of the money found in his possession. Notwithstanding the warning, the appellant did not give evidence, and no person gave evidence on his behalf.

"In all the circumstances I am not satisfied of the correctness of your assertion, or assertions, of those factual matters. The quantity of money found in your back pack is quite inconsistent with your assertion that you held the heroin in a custodial sense only, and I reject your story to the police that you had most of that money from an earlier gambling trip to Australia. Further, any such possession of such a large sum of money by you in Singapore is, in my view, quite inconsistent with your story to Dr Dore [the psychiatrist] of your indebtedness in Singapore and the threats made to you. Indeed, such details which you told Dr Dore of your life in Singapore appears, at the least, to be inconsistent with your assertion to police of an earlier gambling trip to Australia."

The scale of the criminal activity in which the appellant was engaged was very substantial. The quantity of heroin found in the apartment was ten-and-a-half times the amount specified by the Act as a commercial quantity. The offence of trafficking in not less than a commercial quantity of heroin carries a maximum sentence of 25 years' imprisonment. The penalty is a reflection of the misery and death which is inflicted on the population of this country and particularly its youth by the scourge of heroin and the crime in which addicts engage in order to finance their addiction.

Against the seriousness of the crime there was very little advanced in the course of the plea to show that the personal circumstances of the appellant should reduce the sentence that was otherwise appropriate to the offence. The sentencing judge referred to factors which were in the appellant's favour: the fact that he would serve imprisonment in an alien environment without the support of friends or relatives; and that his seven-year-old son was left with the appellant's parents in Singapore. In my view those factors did not render the sentence beyond the range available to the sentencing judge. I do not accept counsel's submission that the sentencing judge failed to treat the fact that the appellant had custody of his son as a mitigating factor.

Another significant factor mentioned by the judge was the appellant's early plea of guilty, which merited a discount even if it was made in reaction to a strong Crown case. It is in my view desirable that sentencing judges should make it clear to persons who have pleaded guilty that they are receiving a discount as a consequence. I do not consider, however, that a failure to refer to a discount means that it was not given. The very experienced judge in this case referred to the plea of guilty, and I do not think that the length of the sentence which he imposed enables an inference to be drawn that the plea was not given appropriate weight. This Court has not adopted the approach of the Court of Criminal Appeal in New South Wales expressed in R. v. Thomson[1].

In the light of the inconsistent statements made at different times by the appellant and his failure to give evidence, I consider that the sentencing judge was entitled to draw the inferences he did as to the money found in the appellant's possession and the capacity in which he held the heroin. I am also of the opinion that his Honour correctly refrained from drawing any conclusion as to the appellant's prospects of successful rehabilitation. There was simply insufficient evidence upon which to base any conclusion.

In the course of the plea the appellant's counsel submitted that the money found on the appellant's person and in the apartment should not be assumed to be the proceeds of earlier drug trafficking, thereby increasing the overall scale of the trafficking beyond dealing with the quantity of heroin in the apartment. It appears from the sentencing remarks which I have quoted that the judge did not use the money as an aggravating factor, but rather as throwing light upon the various explanations advanced by the appellant at different times.

In my opinion the sentence is not manifestly excessive. I do not regard R. v. Berisha[2] as constituting a benchmark for this case. The quantity of heroin in that case was markedly less and the personal circumstances of Berisha were very different. Further, I do not think that the appellant has demonstrated that the sentencing judge fell into any of the errors alleged in the notice of appeal.

I agree. Whether a sentence is manifestly excessive depends upon the facts upon which it is based. In this case the amount of pure heroin in possession for trafficking was more than ten times the commercial limit. The case of Berisha, it should be noted, is most notable for its disquisition upon the ravages that heroin creates in our society and its warning that trafficking in such a poisonous substance will be visited with condign punishment. The amount of heroin involved in that case was so much less than the amount trafficked here that it is futile to suggest that the sentence there imposed sets a benchmark or anything like it for the size of the trafficking revealed in this case.

Like Buchanan, J.A., I can see no error in the sentencing discretion exercised by his Honour, and, even if I could, I would not have imposed any sentence other than the one imposed by his Honour.

I agree. As to R. v. Berisha and Others[3], counsel for the appellant relied upon it as providing a contemporary benchmark for a sentence for trafficking in heroin. I should like to say for myself that it should not be assumed that, even if everything else were equal, what was an appropriate sentence for trafficking in heroin in early 1998, as was Berisha's case, necessarily designated the sentence as appropriate for trafficking in heroin 15 months later, which was this case.

The formal order of the Court will be that the appeal against sentence is dismissed.

[1] (2000) 49 N.S.W.L.R.283 at 393-5 per Spigelman,C.J.; See R. v. Brooks [2000] VSCA 18 at [13] per Callaway,J.A.

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