Regina v Ly [2006] NSWCCA 115
Regina v Gu [2006] NSWCCA 104
Hili v The Queen
Source
Original judgment source is linked above.
Catchwords
Regina v Ly [2006] NSWCCA 115
Regina v Gu [2006] NSWCCA 104
Hili v The Queen
Judgment (1 paragraphs)
[1]
sentence
HIS HONOUR: The accused prisoner Chi King Hong appears today for sentence in relation to two offences to which he pleaded guilty in the District Court on 23 September 2015. The first offence was an offence committed on 5 February 2014 at Bellevue Hill in the State of New South Wales of supplying a prohibited drug namely methylamphetamine.
The second offence, likewise an offence contrary to s 25(1) Drug Misuse and Trafficking Act 1985, was an offence of supplying the prohibited drug methylamphetamine in Zetland on 26 June 2014. Each offence carries a maximum penalty of 15 years imprisonment and/or a fine of 20,000 penalty units. There is no standard non-parole period. The offence committed on 5 February 2014 involved supply, formally, at least, in the sense that the prisoner had in his possession a quantity of methylamphetamine that weighed in total 17.64 grams. I will come back to the facts of that matter shortly.
In relation to that offence I am required to take into account a number of matters on a Form 1 which were offences committed at the same time of the prisoner's apprehension and arrest in respect of the principal offence. Those offences appearing on the Form 1 are five in number. They include the offence of possessing a small quantity of a prohibited drug described as 4-Bromo-2,5-dimethoxylphenethylamon, secondly dealing with the proceeds of crime, to wit, $2,830 in cash that was in his possession and in respect of which I will make a forfeiture order, thirdly, an offence of custody of a knife in a public place, fourthly, an offence of possessing a prescribed restricted substance (Sildenafil) and, fifthly, another offence of possessing a prescribed restricted substance (Tadalafil).
The second offence on the indictment involves no other offences to be taken into account. There are however other contextual issues of considerable importance relevant to the structuring of the offences and the ultimate sentences that are imposed. Firstly, the prisoner committed the first offence on the indictment and the offences on the Form 1, was in custody for three days then granted bail. He was at the time of the commission of those offences on bail in relation to a number of offences for which he was charged on 22 November 2013, initially dealt with in the Burwood Local Court on 11 August 2014 and subsequently in part at least dealt with on appeal to the District Court on 13 April 2015.
The offences that were dealt with at the Burwood Local Court in November 2013 were unlicensed driver, driving under the influence of alcohol or another drug and stating a false name or address at the time presumably of his apprehension, possessing a prohibited drug and possessing or attempting to possess a prescribed restricted substance. The learned Magistrate in respect of those offences granted the offender either good behaviour bonds and/or fixed fines, presumably also disqualifying the offender from holding a motor vehicle driver's licence for a period of time.
The offender appealed to the District Court against the imposition of the fines. He then being in custody in relation to the current matters. In relation to the more minor offences of the offences before her Honour in the District Court the fines and good behaviour bonds imposed were set aside and convictions were recorded pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. In respect of an offence of possess prohibited drug, the offender was convicted and sentenced to a term of imprisonment of one month commencing on 26 June 2014. In respect of the offence of driving under the influence of alcohol or other drug the offender was convicted by her Honour on the hearing of the appeal and sentenced to a term of three months' imprisonment commencing on 10 July 2014 expiring on 9 October 2014, a fixed term of imprisonment partially accumulative upon the lesser term.
I accept for the purposes of the analysis of this matter that the appellant, if he had not been in custody in relation to the current matters, would not have appealed to the District Court and that the sentences of imprisonment were in place of otherwise appropriate penalties imposed by the magistrate to address the reality of the offender being in custody in relation to the current matters. I will come back to the structuring of the sentence following upon that summary of the material available to the court at this particular point of time.
What does follow, however, from what I have outlined is that the offence committed on 5 February 2014, and the matters on the Form 1 were matters committed by the offender whilst on bail in relation to the various offences subsequently dealt with at the Burwood Local Court and on appeal to the District Court as I have outlined. It follows thus that the second offence on the indictment was committed whilst on bail in relation to a previous supply prohibited drug, which to my mind is a significant aggravation both at Common Law and particularly pursuant to s 21A (2) of the Act. The second offence on the indictment was also committed whilst on bail in relation to the other matters.
The facts from the agreed statement of facts are very simple. Police stopped a motor vehicle that was occupied by a man called Prasad who was driving the car and this prisoner. Prasad was a person known to police in relation to the possession and supply of prohibited drugs. They became suspicious of the two occupants of the car and ultimately, when the police searched the prisoner, they found in his pocket a folded tissue which contained two small bags of a crystalline substance weighing .81 grams of methylamphetamine and $850 in cash. They found a further $620 and $500 in cash in other pockets. The prisoner stated he had won the money gambling, a claim of which the police were somewhat cynical. Prasad apparently gave the prisoner up, if I might use that colloquialism, by saying that a brown backpack bag in the back of the car, or in the car, belonged to the prisoner. When that was searched, after the prisoner had agreed that it was his bag, police found a folded tissue similar to that found in the possession of the prisoner which contained 6.80 grams of methylamphetamine. Police also found the knife, three tablets, one brown, one blue and one orange representing the three possession charges of either of prohibited drugs or prescribed drugs reflected in the Form 1.
The police also found in the passenger's side door frame a tin containing resealable bags and several large crystal rocks of a crystalline substance all together weighing 10.03 grams of methylamphetamine. Thus, the total quantity of methylamphetamine found in either the tin or within the backpack or in the pocket of the prisoner was 17.64 grams. The cash money found totalling $2830 is money that is particularised as being in the possession of the prisoner in the sense that he was dealing with that property as suspected proceeds of crime. The prisoner was charged in relation to those various matters and as I said granted bail.
Police officers conducted a patrol of Zetland on 26 June 2014 and the prisoner was observed by the police in company with other people. The prisoner gave false details as to his name and his date of birth. Ultimately he confessed that his real name was Michael Hong and he told the police he had something illegal in his pocket and handed them a green E clips metal tin. The police found in the tin three clear resealable bags containing a crystalline substance together weighing 9.68 grams of methylamphetamine. A red cigarette packet that was found in the jacket pocket of the prisoner and that contained a small clear crystal bag which had inside of it 21.6 grams of methylamphetamine. The total amount of methylamphetamine found was 31.28 grams of methylamphetamine.
It can be seen just from the bald statement of facts there was a greater quantity of methylamphetamine in the possession of the prisoner on the second occasion. But it is certainly clear from the facts that whilst Count 2 in the indictment is to be found in the deeming provisions, by reason of the prisoner's possession of the drugs, the objective evidence available shows that by reference to the mobile phone of Prasad, email messages had been received by him relating to the supply of methylamphetamine, the Crown case being that the prisoner and Mr Prasad were involved in a joint criminal enterprise. I pause for one moment Mr Crown are there any details as to what happened to Mr Prasad?
CHEUNG: Yes what happened about Mr Prasad is that his matter is now completed with by the Local Court and Mr Prasad was found not guilty in respect of the two counts on the indictment, originally joint charged with Mr Hong. As to other s 166 matters all related back to the Local Court and all been dealt with and completed.
HIS HONOUR: I see. There no issue thus Mr Coroneos about parity arising in relation to Mr Prasad.
CORONEOS: No your Honour.
HIS HONOUR: But the facts do state that from the prosecution's perspective the prisoner was involved in a joint criminal enterprise with Mr Prasad. As I said earlier a significant aggravation affecting the appropriate sentence for Count 2, apart from the quantity, is the fact that the prisoner was on bail in relation to a previous supply of methylamphetamine.
With regard to the prisoner's criminal history he had no prior convictions at the time of his arrest in relation to the first of the matters with which I am concerned. I bear in mind, of course, although he was not convicted at that time he had been charged with the five offences I earlier outlined. The charges were brought against him on 22 November 2013, to which he eventually pleaded guilty as I understand it. Thus, he was an unconvicted offender at the time of the commission of Count 1. At the time of the commission of Count 2 although he had not been convicted or sentenced in relation to the first supply in time, it is clear from the available to me that not only was he on bail in relation to the previous offence but by his own plea of guilty the court, where I now preside, he committed Count 2 after having committed Count 1 although I again acknowledge there was no conviction recorded at that time.
Just referring to the detail of the matters within the record, for the purposes of considering Count 1 by reference to s 21A(3) of the Act, it is clear that a mitigating factor arises in the sentencing for Count 1 that he did not have any significant record of previous convictions. He had no actual convictions recorded, as I said, but he was an unconvicted offender.
In relation to Count 2 again he had no convictions at the time of the commission of that offence. But he was an unconvicted offender both in relation to the matters dealt with in the Local Court and the previous supply. It follows even determining in his favour in a strictly legal fashion that the offender was a person without any record at the time of the commission of the offences that in respect of Count 1 and Count 2, it could not be concluded that he was a person of "good character". Although to be fair to him the finding in that regard is stronger in relation to Count 2 bearing in mind as I said he was already on bail then for the first supply which he has admitted by his pleas of guilty in this court.
I have a pre-sentence report from Community Corrections. It has many mixed messages. The prisoner has made a claim to Community Corrections of being himself a drug user at the time of the commission of the offences however the Community Corrections report noted that the prisoner claimed that he was supplying drugs to pay for his own drug habit due to his employer not paying his wages. Yet he had previously provided information to the Service that he not use drugs for the last five years prior to custody. In the context of what I understand of the background of the prisoner noting that particular conflict, but noting the manner in which the prisoner was carrying the drugs particularly in respect of Count 1 I am prepared to accept there is available the inference to be drawn that he was a drug user at the relevant time, the extent of his dependence upon drugs however is something about which I cannot reach any concluded view.
He is the youngest of four children of his parent's marriage. He was born in Malaysia. He was raised primarily by his grandmother and eldest sibling, his mother having migrated to Australia in 2004 leaving her children behind in the care of her grandmother. By the time the prisoner was aged 13 noting that he was born, according to the history available to me, on 24 December 1984, the mother had established herself sufficiently and brought out her youngest son to Australia. The prisoner said he was a permanent resident.
The Department of Immigration and Border Protection in due course will no doubt look closely at his case, but at this stage of the proceedings it's not sought to suggest nor can I take into account any ministerial of administrative action taken by the Commonwealth authorities at some future time. The prisoner has no children and he has stated that his behaviour in relation to the current matters was not reflective of his upbringing in Australia. He completed Year 9 at school. He has had lengthy periods of unemployment and casual work. He claimed that he had been employed by a renovation company for approximately four years before he came into custody and that he would wish to return to that employment on his release from custody. The employment however has not been confirmed, as his employer is not aware that he is in custody.
His history of drug usage is described by Community Corrections as "potted". His particular criminogenic needs are identified as being concerned with his associations or companions and his use of drug and alcohol. He has the support of his mother who still lives in Sydney and the Community Corrections Service states that he was raised in a family with strong work values. He would benefit from a period of supervision.
The subjective material, it must be said, available in relation to this prisoner is somewhat sparse. Although, in fairness to him having regard to his age as I understand it, it is significant in my view that his offending only started shortly before the commission of the first and the serious charges with which I am concerned. It shows to my mind, if I involve myself in a little bit of "amateur psychology", that strengthened in my resolve by my experience as a sentencing judge and before that as a lawyer, that the prisoner does not have inbuilt or ingrained anti-social traits or a background that reflects some form of conduct disorder that suggests that he is a danger to the community.
His counsel has also provided me with sentencing statistics from the Judicial Commission statistical reservoir. It does not break down the categories of offenders. It deals with all offenders convicted pursuant to s 25 of the Act in respect of the period from July 2008 to June 2015, and it shows, consistent with authority to which I will refer in a moment, that 53 per cent of people convicted are sentenced to terms of imprisonment, a range of terms of imprisonment for a particular offence vary between six months and five years. The information in relation to the non-parole period is of little assistance. It does provide some general indication of range of sentencing. That is a matter dealt with in the submissions of counsel for the prisoner which I will come to in a moment.
It follows from what I have outlined firstly that the prisoner is entitled to a discount for the utilitarian benefit of the plea of guilty. Both orally and in writing counsel for the prisoner has set out something of the history. It is clear the prisoner was committed for trial in relation to the principal offences. It is clear that he pleaded guilty a day or two after the matter had been listed for trial. I accept he is very learned and experienced counsel having received the brief shortly before the trial, endeavoured to negotiate the matter with the Crown in a proper fashion, but ultimately by reference to the guideline judgment of Thomson and Houlton the discount to be given in respect of each plea of guilty for the utilitarian benefit of the pleas of guilty should be 10 per cent.
Furthermore, it is quite clear that this is a case where full-time custody must be imposed in respect of both offences. It is a case where it could be concluded, in my view, by reference to the overall facts and by reference even to the first occasion looked at in isolation, that the prisoner could be seen to be substantially involved in the supply of prohibited drugs. It has not been argued that there are "exceptional circumstances" such as was discussion in the recent decision of the Court of Criminal of Polley v R [2015] NSWCCA 247. Sentencing judges and lawyers alike are well aware of the line of authority, including Clark from Justice Hunt in 1990, Carrion in 2000, judgments of McClelland CJ at Common Law in Gip and Gu in 2006 and the decision of Justice Adams summarising many of these authorities, Fayd'herbe v R, from 2007.
I could not conclude that there had been "profitable commercial exploitation", but clearly the prisoner committed the offences with a view to financial advantage. Admittedly within the scheme of things the quantities of the drugs involved were modest although certainly not of the least level of quantity contemplated by s 25 of the Drug Misuse and Trafficking Act in relation to offences relating to methylamphetamine. I appreciate quantity is not of itself a determinant necessarily of the appropriate penalty within the range of offending covered by a particular provision.
With regard to the discussion about trafficking, or being substantially involved in supplying, ultimately in the way in which the case has been conducted and the concessions made by counsel for Mr Coroneos I do not have to undertake a detailed exposition on that matter. It is clear that both offences require full-time custody for the abovementioned reason by reference to authority in the Court of Criminal Appeal. But also there is the practical fact that the prisoner has now been in custody for over 18 months. Almost completely awaiting sentence in relation to the current matters. No practical alternative to full-time custody arises. In that regard I note the terms of s 5 of the Act. I also note the terms of s 3A of the Act. There is a need for adequate punishment, a need for an element of general and personal deterrence. I need to make the prisoner accountable for his conduct and denounce his conduct. I also need to promote his rehabilitation.
With regard to the issue of the relevance of his "addiction" I am prepared to conclude that he was a drug user, but to the extent to which he is addicted or was addicted at the relevant time I am unable to reach a conclusion one way or the other noting the observations in the Community Corrections pre-sentence report. With regard to s 21A of the Act I have already noted the breach of conditional liberty in different respects. In one respect common to both offences as an aggravating factor.
The prisoner does not have a relevant record of previous convictions to take into account as an aggravating factor. I have referred to the mitigating character of his criminal history such as it is. I am not prepared to conclude that he was relevantly a person of prior good character particularly in relation to Count 2. I am prepared to accept however that the term of imprisonment may serve as a salutary experience. I am prepared to conclude in the context of a dearth of prior findings of guilt before late 2013 that he is unlikely to re-offend and he does have some good prospects of rehabilitation. His plea of guilty is a mitigating factor. I accept his plea of guilty is an expression of remorse by him, I note a degree of co-operation with the arresting police admittedly he had no choice in the circumstances.
With regard to the sentencing of the offender clearly I embrace as I must the need to approach the sentencing of the prisoner in accordance with the general principles laid down by the High Court of Australia in Markarian from 2005 and the following judgment of the High Court, admittedly largely concerned with standard non-parole periods which do not arise here, reflecting upon Markarian principles in Muldrock from 2011.
Whether the prisoner is at the crossroads or not, in the sense discussed by Osenkowski, (1982) 5 ACrimR 394, a judgment from South Australia, I am unable to say. But I certainly accept, as Chief Justice Spigelman accepted in the guideline judgment of Henry, the observation of Acting Chief Justice Mahoney in Lattouf about individualised justice. The former learned judge of the Court of Appeal, then Acting Chief Justice, observed,
"General principles must of their nature be adjusted to the individual case if justice is to be achieved. Paramount amongst these is the achievement of justice in the individual case. If a sentencing process does not achieve justice it should be put aside. If justice is not individual it is nothing".
I have taken into account the statistics so far as they assist me. Of course one problem with statistics is that the various factual features of a particular sentencing exercise can never be revealed by the contents of Judicial Commission statistics, as useful as they are in showing a range of sentencing over a period of time in the higher courts. Spigelman CJ in Bloomfield from 1998, speaking from the perspective of an appellate court reflected upon some of the deficiencies of statistics in the decision of Bloomfield cited in the written submissions of counsel for the prisoner. Some of those observations of course have relevance to first instance sentencing. I am mindful of what has been said about statistics in a decision such a Hili v The Queen, a decision of the High Court in 2010 and also of course in other judgments, some of which are cited in the written submissions of counsel for the prisoner.
The prisoner's learned counsel has submitted that I should make a finding of special circumstances pursuant to s 44 of the Act. I accept that that is so for a range of reasons. Firstly, having regard to totality principles and particularly the principles for example summarised by the majority of the High Court in the decision of Pearce (1998) 194 CLR 610 [45], discussed further in many judgments of the Court of Criminal Appeal but particularly the decision of Hammoud, it is clear that I must partially accumulate the sentence for Count 2 upon Count 1. I am mindful in relation to Count 1, I am required to take into account matters on a Form 1. I do so firstly in accordance with the general principles that were outlined by the Court of Criminal Appeal in the guideline judgment relating to Form 1 matters, (Attorney-General's Application No. 1 of 2002, (2002) 56 NSWLR 147). The court therein setting down a guideline in relation to taking into account matters on a Form 1 indicated that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution.
The Court observed that "the entire point of the process" is to impose a longer sentence or to alter the nature of the sentence that would have been imposed in the principal offence stood alone. Of course all of these matters are matters of degree. The additional penalty can be substantial. It may be small. It depends upon the character of the offences on the Form 1 and their relationship to the principal offence. Here the matters on the Form 1 do not substantially increase the criminality required to be considered in fixing a sentence for the Form 1 matter. Of course, I am not required, as the Court made clear in the guideline judgment, to fix a discrete recognition of the taking into account of matters on a Form 1 provided to the Court. I generally refer to the judgment in that matter at [18] - [44]. There of course have been other judgments discussed in sometimes final detail, sometimes with a different emphasis, the taking into account matters on a Form 1.
That having been said of course I have ultimately concluded in the context of reflecting totality of criminality, the partial accumulation of the sentence for Count 2 on Count 1, the fact that the commission of the offence in Count 2 I should say being an offence committed whilst on bail in relation to the principal offence reflected in Count 1, requires a greater sentence to be imposed in respect of the offence reflected in Count 2 than that to be imposed in respect of the offence reflected in Count 1. Notwithstanding the fact that the Form 1 matters are required to be taken into account in respect of Count 1.
Thus, as I have said, there will be a partial accumulation to the extent of 12 months in the imposition of the sentence for Count 2 partially upon the sentence for Count 1. There is also a need in my view to adjust the relationship with a non-parole period to the balance of the sentence to provide the prisoner with an extended period of supervision. He will need professional assistance to adjust to community living on his release from custody. I bear in mind, as his counsel reminded me in his oral submissions, this is the first occasion the prisoner has served a term of imprisonment.
The prisoner needs assistance in my view to find employment and he will need assistance in relation to contributing factors to his offending including his use of prohibited and restricted substances.
His counsel put submissions about what the appropriate penalty should be. I have taken those matters into account as well as the brief but helpful assistance of the learned Crown Prosecutor.
Do you mind just standing up please Mr Hong. In relation to Count 1 on the indictment taking into account the matters on the Form 1 you are convicted. You are sentenced to a term of imprisonment without a non-parole period of one year nine months. That will date from 23 June 2014. It will expire on 22 March 2016. I make it clear I have commenced the sentence to take into account all the time you have spent in custody notwithstanding the periods of imprisonment imposed by my learned colleague in relation to the appeal, having regard to the circumstances in which those terms of imprisonment came to be imposed.
In relation to Count 2 you are also convicted. You are sentenced to a term of imprisonment by way of non-parole period of ten months commencing from 23 June 2015, that is one year, into the sentence in relation to Count 1. That ten months non-parole period expire on 22 April 2016. In relation to that sentence I fix a balance of sentence of one year five months. That will expire on 22 September 2017. Your eligibility for release to parole will be determined by the Parole Authority. Just take a seat. I don't propose to fix any conditions for parole that will be a matter for the Parole Authority. The earliest that you will be eligible for release to parole will be 22 April 2016.
Now Mr Crown are there any matters from you?
CHEUNG: Nothing your Honour.
HIS HONOUR: What about you Mr Coroneos.
CORONEOS: No thank you your Honour.
HIS HONOUR: Do you understand the sentence. The effective non-parole period is one year ten months. Your client is eligible for release to parole on the 22nd of next month. He will have a balance of sentence of one year five months. Do you understand Mr Hong?
OFFENDER: Yes your Honour.
HIS HONOUR: When you're on parole - just sit down just for a moment let me explain something to you, if you commit offences whilst on parole, or alternatively if you breach your parole by not complying with the conditions fixed by the parole authority such as following reasonable directions of community corrections officers, the Parole Authority can revoke your parole, they'll issue a warrant for your arrest, you'll go back into custody. Do you understand, it doesn't come back to me.
OFFENDER: Yes your Honour.
HIS HONOUR: It's dealt with by the Parole Authority and the Corrective Services Commissioner. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: Thank you. As to whether you remain in the country of course that will be a matter for other people to decide, it's not at this point a relevant matter for me to take into account. I have fixed a non-parole period in the expectation that you'll be released to parole as I would for a prisoner who has come from overseas and committed a crime such as importing drugs into Australia knowing full well that he or she will be deported as soon as the sentence expires. Do you want to speak to your counsel just for a moment?
CORONEOS: Yes your Honour one moment. Thank you your Honour.
HIS HONOUR: And I make forfeiture orders in accordance with the short minutes of order provided by the Crown which have been signed and sealed.
CHEUNG: Thank you your Honour.
HIS HONOUR: Do you have a copy of those now Mr Coroneos?
CORONEOS: Thank you your Honour I do.
HIS HONOUR: Thank you very much for your assistance today Mr Coroneos. Thank you to you and your instructing solicitor for the helpful written submissions. You are excused Mr Hong thank you.
CORONEOS: I'll just check the dates.
HIS HONOUR: It's entered in JusticeLink Mr Coroneos. It's not captive to the recording of the officers, it's repeated in JusticeLink.
CORONEOS: No your Honour I appreciate that. It's always helpful to have the correct information.
HIS HONOUR: Thank you gentlemen very much for your assistance. Have a good afternoon.
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Decision last updated: 22 February 2017