R v HUANG; R v LIN [2001] NSWCCA 76 | Case summary

1 STUDDERT J: I agree with Barr J. 2 BARR J: With the consent of the applicants and the Crown, these applications have been heard together. Huang Min and Lin Wen Shyang seek leave to appeal against sentences imposed upon them in the District Court. Mr Huang pleaded guilty to a charge that between 1 and 30 November 1998 he supplied a prohibited drug, namely heroin, on three separate occasions for financial or material award. He was sentenced by his Honour Judge Nield to imprisonment for eight years, incorporating a minimum term of six years. 3 Mr Lin pleaded guilty to the same charge and to a charge that on 19 November 1998 he supplied a prohibited, namely heroin. On the first count he was sentenced to imprisonment for eight years with a minimum term of five years six months and on the second to imprisonment for a fixed term of two years. The minimum term was accumulated upon the fixed term, with the result that the total sentence was one of ten years with a minimum term of seven years six months. 4 On 3 November 1998 an undercover police operative met Mr Huang and came to an agreement to buy from him an ounce of heroin for $6,200. In fulfilment of the agreement Huang obtained an ounce of heroin from Mr Lin, took it to the operative and handed it over on 5 November in exchange for the money. He paid Lin some or all of the money collected. On 9 November the operative negotiated the purchase of three ounces of heroin for $18,000. On 12 November that agreement was put into effect in much the same way and the money was dealt with in much the same way. 5 The final agreement was made on or about 16 November for the supply of twelve and a half ounces of heroin for $72,000. On 19 November Huang made over to the operative a block of heroin in exchange for $72,000. As before, he had obtained the heroin from Lin. 6 The heroin supplied was of very high purity. The quantity supplied on the first occasion weighed 27.9 grams and was 72% pure. The quantity on the second occasion was 83.5 grams and was 73.5% pure. The block weighed 346.9 grams and was 70% percent pure. 7 Huang was arrested immediately after he left the operative, having sold the block. He had on him the $72,000 which the operative had handed him. He was taken to the police station and interviewed on three occasions but said nothing incriminatory. 8 Lin was waiting for Huang and the money and the police arrested him. They searched his car and found a package containing about one ounce of heroin. 9 Lin was interviewed by police and admitted knowing Huang, participating with him in the supply of heroin and receiving money from the supply. He said that on that day he had picked up thirteen and a half ounces from his supplier in Campbell Street Sydney. It had been wrapped in newspaper. He had not unwrapped it but had taken it to Huang's house. Huang had taken it from him. Lin was shown the twelve and a half ounce block seized by the police from Huang but denied having seen it before and repeated that he had not seen inside the newspaper package. 10 He was shown the one ounce of heroin found in his car but said that he did not know that there was such an item in his car. He added that in the past Huang had telephoned him and had taken just such a package. 11 He said that he had supplied Huang on about three occasions. He received $400 per ounce but $1,500 from the twelve and a half ounce block. He also said that he had not paid any deposit to his supplier for the contents of the newspaper packet but was obliged to pay him $50,000. 12 His Honour compared the relative roles of Huang and Lin. Because Lin was the one who obtained heroin from another source, because he was found to be in possession of heroin which was not the subject of any agreement negotiated by Huang and because Huang had the greatest exposure, his Honour thought that Huang was the underling of Lin. His Honour went on to observe that, whatever might have been the exact role of each of them, both were active participants in the actual supply of a considerable quantity of heroin on three separate occasions and that that amounted to the commission of a very serious offence which demanded the imposition of an appropriate salutary penalty. 13 The offence of which Huang pleaded guilty and the principal offence of which Lin pleaded guilty were charged under s 25A Drug Misuse and Trafficking Act. That section was inserted in the Act in 1998 and the offence which it creates is sometimes called supplying prohibited drugs on an ongoing basis. The maximum penalty which it attracts is imprisonment for twenty years or a fine of 3,500 penalty units or both. The maximum penalty for a single act of supplying the indictable quantity of heroin not exceeding the commercial quantity is fifteen years' imprisonment or a fine of 2,000 penalty units or both. The maximum penalty for the supply of the commercial quantity of heroin, which is 250 grams, is twenty years' imprisonment or a fine of 3,500 penalty units or both. 14 On behalf of Mr Huang it was submitted first that his Honour had made insufficient allowance for the applicant's plea of guilty. It was submitted that his Honour's statement that the plea of guilty was no evidence of contrition shows that his Honour may have given less discount for the plea than he should have. Reference was made to Judicial Commission statistics of sentences imposed in the higher courts. Only nine percent of those who plead guilty to the supply of the commercial quantity of heroin receive sentences of eight years' imprisonment or more. It was put that it was difficult to believe that Mr HHuang's criminality fell into the worst nine percent. It was further submitted that the bulk of offenders who plead not guilty to the supply of the commercial quantity of heroin are sentenced to eight years or less. 15 It seems to me that the submissions overlook the important feature of the offence of which the applicant has been convicted, namely the repeated supply of the drug for financial gain. As his Honour pointed out, Huang was a middle aged man who entered the drug trade for financial gain. He was not an addict and there was no compulsion upon him to enter the trade. Against that background he made himself a repeated offender. 16 It seems to me that his criminality was thus significantly greater than that of one who might have supplied the drug on only a single occasion. For that reason alone the Judicial Commission statistics are of limited assistance. 17 Then it was submitted that the fact that the case against the applicant was overwhelming should have produced a higher discount for his plea of guilty. The argument was that if hopeless cases are offered the biggest discounts for pleas of guilty public time and money in the defence of the indefensible will be saved. 18 Although an accused person who pleads guilty is entitled to an appropriate discount for utilitarian purposes there seems no reason why that discount should vary according to the strength of the Crown case. On the other hand, where the Crown evidence is strong the accused who pleads guilty may receive a greater discount, depending upon whether the sentencing judge regards that circumstance as evidence of contrition: DPP v El-Karhani (1990) 21 NSWLR 370. 19 In the present case his Honour pronounced himself satisfied, upon good grounds, that the applicant was not contrite. That finding was not attacked. 20 In his second ground the applicant asserted that the sentence was shown, by comparison with Judicial Commission statistics for sentences imposed upon offenders who had pleaded guilty to the identical offence, was excessive. 21 S 25A was introduced only recently and, as the Minister said in his second reading speech to the Parliament, is intended to target dealers in drugs who have organised their affairs so as to limit the full effect of the existing penal sections of the Drug Misuse and Trafficking Act. 22 It seems to me that the Court ought to take notice of the stated intention of the Parliament in this matter. 23 The statistics show that between August 1998 and March 2000 some forty cases resulted in terms of imprisonment. Only three percent of them received full terms of as high as eight years. 24 As the Court has observed on a number of occasions, the use of Judicial Commission sentencing statistics for the purpose of demonstrating error must be approached with considerable caution. S 25A is by its nature apt to be used for offenders who repeatedly sell small quantities of drugs at street level. One of the cases relied upon by the applicant, R v Smiroldo (2000) 112 A Crim R 47, is such a case. It is not possible by reference to the statistical figures to know whether any cases of the magnitude of the present one are included. The number of cases dealt with is statistically small in any event. 25 It seems to me that in all the circumstances, and especially by reference to statistics for sentences imposed upon offenders convicted of single supplies of heroin, the sentence imposed by his Honour was well within his proper range of sentencing discretion. Accordingly I would grant leave to appeal but would dismiss the appeal. 26 On behalf of Mr Lin it was submitted first that his Honour erred in concluding that the plea of guilty was no evidence of contrition. It was submitted that although the applicant did not give evidence before his Honour a letter was written by Ms Anna Huang, stating that she had spoken to him in gaol about his crime and that he had expressed great sorrow to her and concern for the way he had left his family. He had told her that no amount of money was worth what he did and that he would never do it again. Even if he were very, very poor he would not do such a thing ever again. 27 Attention was drawn as well to a statement made by the applicant to the police in his formal interview in the following terms - If you wants me to do anything to help the police, I will try my best. 28 It was submitted that those facts would normally imply that the offender was contrite. There would need to be some unusual factor to allow a sentencing judge in those circumstances to reach a contrary view. His Honour did not explain his reasoning. 29 In my view there was no need for his Honour to explain his reasoning, which must have been based upon the attitude the applicant was taking at the time of sentence. Sentence was passed on 2 November 1999 and in preparation the applicant had taken part in an interview with a Probation and Parole officer at Silverwater Prison Complex so that a pre-sentence report could be furnished. The relevant parts of the report prepared by the officer are as follows - ATTITUDE TO OFFENCE Mr Lin denies any knowledge of illegal activities or drug trafficking. He said that he had an arrangement whereby he would be contacted by phone and that he would give a lift to a friend who he had known for approximately four months. He further added that he did begin to realise that there was something amiss as he was being paid between $200 and $300 for his transportation. 30 It was submitted that this was not evidence that the applicant was denying having committed the offence with which he had been charged. I do not accept that submission. In view of the facts that only $50,000 of the $72,000 had to be returned to the supplier and that even in his interview with the police Lin admitted to being paid between $200 and $300 for transportation, the account he gave to the probation officer must have been false. At the time of Huang's arrest he had on him the sum of $72,000. Lin was obliged to pay his supplier $50,000, implying that he and Huang had $22,000 to share. In my opinion, in the absence of any evidence from the applicant, a finding of contrition would have been unreasonable in view of that evidence. 31 The next submission was that the discount allowed for the plea of guilty must have been insufficient in view of the ultimate sentences imposed. His Honour gave sentence before R v Thomson & Anor (2000) 49 NSWLR 383, and so did not specify the discount allowed for the plea. It was submitted that the ordinary range of discount applicable, even if the plea were not regarded as evidence of contrition, would for utilitarian purposes vary between ten and twenty-five percent. In the circumstances, and given the final effective sentence of ten years, either the plea was undervalued or the starting point for discounting was too high. 32 I do not think that this ground of appeal has been made good. Although the case against the applicant was not as strong as that against Huang it was, as his Honour found, a strong one. It could easily be proved by evidence of his and Huang's respective movements, of the heroin found in his car and of what he said to the police. The applicant was a man who had coolly and systematically dealt in heroin, regarded by the courts as the most serious of drugs generally dealt in for commerce, and was in the process of making substantial profits. His denial of knowledge of the heroin in his car and the story he told the probation officer showed that he was not prepared to be frank about the part he played and therefore that he was not contrite. In the circumstances the discount allowed for his plea could only have reflected its utilitarian value and may have been towards the bottom of the available range. 33 Then it was submitted that his Honour erred by failing to take into account the offer to which I have already referred to assistance to the authorities. Having received a submission from counsel about the offer, his Honour remarked that he could find nothing in the evidence about such an offer or as to any value given to such an offer. His Honour had overlooked the answer I have referred to. 34 It was submitted that it was likely that, given that the police did not take up the offer, it was not regarded by them as worth very much. I think that that must be so, and it may not be irrelevant to observe that the attitude of the applicant during the interview, co-operative and straightforward, changed thereafter so that by the time he was interviewed by the Probation and Parole officer he was denying having committed the offences. 35 Reliance was made on a statement of Abadee J in Barrientos v Regina [1999] NSWCCA 1 to the effect that the establishment of an actual benefit to the authorities is not essential in all cases as a condition for the making of an allowance. I do not regard his Honour's remarks as having any particular application to the facts of this case. Neither did his Honour say that an allowance must be made where there is a bare offer to assist. In my view it would have been wrong to make any allowance for the offer which was bare and, in all the circumstances of no value. 36 Then it was submitted that his Honour erred in disregarding the applicant's good character and reputation. In fact the submission puts a strained interpretation on what his Honour said. Having found that the applicant was a man of good character and reputation his Honour went on to say - However, good character and reputation does not seem particular relevant when prisoners of hitherto good character and reputation commit so serious an offence as supplying such a large quantity of heroin over three separate occasions within thirty consecutive days. 37 It was submitted that what his Honour said was tantamount to saying that good character and reputation were not relevant and that it should therefore be presumed that his Honour disregarded those factors when fixing the sentence. 38 In my opinion the submission has not been made good. His Honour simply did not say what he is asserted to have said. His Honour regarded prior good character and reputation as of relevance but not of particular relevance. To my mind that means not of great relevance. In my opinion his Honour was correct in coming to that view. 39 The last two grounds may be dealt with together. They were that his Honour erred in accumulating the sentences and that the sentences were manifestly excessive. 40 It was submitted that there was no evidence that the applicant was generally involved in a drug business and that the three transactions which constituted the major offence were the full extent of the evidence concerning his criminal activity in drugs. 41 This raises the question of the possession by the applicant for supply of the one ounce of heroin found in his car. It was suggested that he might have been returning that quantity of heroin to the supplier as an amount not requested by the intended purchaser, the undercover agent. That would mean that the one ounce was all part of the third transaction and that no further criminality was involved in the possession of it. 42 The undercover officer and Huang were overheard speaking on the telephone on the evening of 16 November 1998 and their conversation was recorded. The undercover officer spoke of a 350 gram block of heroin and the two discussed unit prices. Eventually the undercover officer said to Huang - … and so you're gonna give me 12.5 ounces for 72 .. okay 43 Huang replied - Yeah … 44 It seems to me in view of the undercover officer's precise order and his having handed Huang $72,000 that the one ounce of heroin in the applicant's car could have had nothing to do with any supply on that occasion through Huang to the undercover officer. His Honour was entitled to regard the possession of the one ounce with intent to supply it as an offence unconnected with the undercover officer. I do not think that his Honour was therefore required to make the sentence for that offence concurrent with that imposed for the principal offence. I do not think that his Honour's accumulation of the sentences was outside the range of his discretion. 45 Looked at as a whole, the resulting ten year term with a minimum term of seven years six months appropriate reflected the criminality of the applicant. That is so whether the offences are regarded standing alone or by comparison of the total effective sentence with that imposed upon Huang. 46 Like Huang, the applicant relies on Judicial Commission statistics for the supply of the commercial quantity of heroin. As I have already observed, such statistics may be of value but they must be applied with considerable caution, particularly in view of the fact that the offence under s 25A is apt to deal with offenders who frequently supply small amounts of heroin. Such suppliers face a maximum penalty of twenty years' imprisonment notwithstanding the total amount supplied and the reason for that is that the offence incorporates the further elements of repeated supply and commercial intent. Such a supplier who supplies in commercial quantity, therefore, must be seen to commit an offence high in the range of seriousness contemplated by the section. Existence of the elements I have mentioned means in effect that, weight for weight, offenders under s 25A ought to tend to receive substantially greater sentences than those charged, at least for single offences, under s 25. 47 I would grant leave to appeal but would dismiss the appeal. **********

R v HUANG; R v LIN

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