R v Le

House v The Queen (1936) 55 CLR 499 R v A [2004] NSWCCA 292 R v Brett [2004] NSWCCA 372 R v Johnstone [2004] NSWCCA 307 R v Kain [2004] NSWCCA 143 R v Oliver [2005] NSWCCA 6 R v Pham [2005] NSWCCA 94 CASES CITED: R v Khaled [2001] NSWCCA 169 R v Morgan (1993) 70 A Crim R 368 R v Radford [2002] NSWCCA 122 R v Smiroldo (2000) 112 A Crim R 47 R v Sutton [2004] NSWCCA 225 R v Thomson & Houlton (2000) 45 NSWLR 383 R v Whyte (2002) 55 NSWLR 252

P E Barrett (Crown) COUNSEL: M J Johnston

• 5 - IN THE COURT OF CRIMINAL APPEAL 2004/3298

WOOD CJ at CL GROVE J HOEBEN J

Tuesday 12 April 2004 Regina v Ahn Tuan LE Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of imprisonment of four years and eight months with a non parole period of two years and eight months, which was imposed following his plea of guilty to one count of supplying drugs on an ongoing basis (s 25A Drug Misuse and Trafficking Act 1985).

FACTS 2 The applicant was arrested following his sale of heroin to an undercover agent on 19 August 2003, 21 August 2003 and 26 August 2003. The quantities sold on the first two occasions were 4.9 grams with a purity of 34.5%, and on the third occasion 5 grams with a purity of 35%. The sum paid on each occasion was $1400. 3 The sales were not isolated transactions. The applicant, who had been the subject of ongoing electronic and physical surveillance, was found to have received, over a period of thirteen days, some 1415 calls on his mobile telephone service, 85% of which openly involved the purchase, sale and packaging of drugs. Police estimate that eighty customers, or thereabouts, dealt with him on a daily basis over this period. On two occasions he offered to sell larger quantities of drugs to the undercover officer, comprising one ounce of heroin for $6,500 and later, two ounces of that drug. 4 On 24 August police intercepted 64 incoming calls and 12 outgoing calls on his mobile phone service, all of which were related to drug transactions. On 25 August he was placed under physical surveillance and observed to attend various addresses, and to meet with a number of people in his motor vehicle, which meetings obviously involved drug sales. 5 At the time of his arrest on 27 August he was found to be in a possession of four ounces of the drug packaged in balloons. He was released on bail but when, following his rearrest on 28 August, his rented premises were searched, some $2335 in cash was found, along with materials used for drug packaging, drug paraphernalia and white powder residue containing heroin. 6 The applicant had no prior record but did have a drug habit. He was aged thirty years at the time of his arrest. He admitted his guilt when interviewed by police and entered the plea in the Local Court. The sentencing judge gave him a fifteen percent discount for his early plea and for the remorse and contrition disclosed by that circumstance and by his admissions to police. Special circumstances were found referable to the applicant's age, prior good record, and good prospects of rehabilitation if given adequate guidance and proper supervision.

GROUND 1 7 In assessing the value of the plea in the remarks on sentence, his Honour said: "I accept that he has shown remorse by his early plea of guilty, and I take also into account his remorse is demonstrated by his agreeing to be interviewed by the police and admitting his involvement in the offence. ... I form the view that the offender should have the benefit of a discount for his early plea of guilty and his contrition. His contrition was not expressed before me in the court, but it can be inferred: he certainly made it clear to the probation and parole officer that he regretted his actions. He also, by partaking in an interview and admitting his guilt and pleading guilty at the earliest opportunity, gave tangible evidence of his contrition. In the circumstances I consider a discount of fifteen percent for his plea of guilty and his facilitation of the administration of justice, together with his expressed contrition, is appropriate in this case".

8 The remarks on sentence set out above make no reference to the strength of the Crown case. However, in the course of submissions, his Honour said: "I intend to allow him fifteen percent for the plea of guilty. One can say that the case for the Crown is a strong one but he did when being interviewed by police admit his guilt from the earliest. He hasn't disputed the charge. I intend to allow him fifteen percent. I've read many cases where the Court of Criminal Appeal is critical of 20 percent being allowed in cases where there's a very strong case. In my view I should allow him fifteen percent".

9 It is submitted that appellable error is shown in this passage insofar as it suggests that his Honour took into account the strength of the Crown case when assessing the utilitarian value of the plea, contrary to the decisions of this court in R v Thomson & Houlton (2000) 45 NSWLR 383 at [137], R v Sutton [2004] NSWCCA 225 at [12], R v Brett [2004] NSWCCA 372 and R v Oliver [2005] NSWCCA 6. 10 It is by no means clear whether his Honour addressed the remarks in question to the utilitarian value of the plea or to the aspect of contrition. In any event, this court has had occasion in several recent decisions to emphasise that exchanges during the course of submissions do not form part of the reasons, and that it is not safe to assume that some observation passed by a judge, at that stage of the proceedings, represents a considered or final view as to the basis upon which a sentence is passed: see, for example, R v Kain [2004] NSWCCA 143 at [56], R v A [2004] NSWCCA 292 and R v Pham [2005] NSWCCA 94. The first leg of this submission is not made good. 11 It is next submitted that, given the early timing of the plea, its utilitarian value and the finding of contrition, a larger discount than fifteen percent should have been given. 12 In a case where the discount of only fifteen percent is given where the plea has been entered in the Local Court, it would normally be expected that clear and cogent reasons for so doing would be given, having regard to the judgment in Thomson & Houlton and to the warnings of this court, for example, in R v Johnstone [2004] NSWCCA 307. 13 The fact that a discount is pitched in the lower half of the range referred to in Thomson & Houlton, however, does not of itself guarantee success in an appeal against sentence. The question for this Court is whether some sentence other than that imposed was warranted in law and should have been passed: Criminal Appeal Act 1912, s 6(3). This is the question to which the second ground of appeal was directed.

14 The applicant advanced this submission by reference to the findings that "he was engaged in a regular supply of small quantities of heroin at the bottom end of the scale" and that he had "good prospects of rehabilitation". Additionally, it was submitted that the sentence falls towards the top of the range as disclosed by the Judicial Commission's statistics for all offenders. 15 It is to be observed that sentencing is not driven by these statistics. Although they do provide useful information as to the range, they mask the wide variety of objective and subjective circumstances found in the individual cases, which make up the statistical population, which also encompass a variety of drugs. 16 Of greater relevance for sentencing in this case is the fact that the maximum prescribed penalty is imprisonment for twenty years, an indication of the seriousness with which it is regarded by the legislature. In my view, the objective criminality here involved was very considerable. The drug involved was heroin; the amounts involved were not inconsiderable; the sales were clearly not isolated incidents but were part of a regular ongoing and planned criminal activity conducted by the applicant for financial reward and not simply to feed a habit. 17 As was pointed out in R v Khaled [2001] NSWCCA 169 at [19], there is a need for a sentence in relation to this offence to carry with it a strong message of general deterrence; see also R v Smiroldo (2000) 112 A Crim R 47. 18 It was asserted that error was disclosed by the fact that the applicant's subjective circumstances were more favourable than those in R v Radford [2002] NSWCCA 122. However, as was pointed in R v Morgan (1993) 70 A Crim R 368 and R v Whyte (2002) 55 NSWLR 252 at [176] to [177], comparison between individual cases provides little by way of a basis for appellate review. 19 In order to succeed in this appeal the applicant needs to show that the sentence was so manifestly disproportionate to the objective and subjective circumstances that it can be said that a substantial "wrong" has occurred: House v The Queen (1936) 55 CLR 499. 20 I am not persuaded, in circumstances where the appellant's objective criminality was significant, and where a finding of special circumstances was made, which led to a very considerable adjustment in the ratio between the non parole period and the balance of the term, that any lesser sentence than that imposed was warranted in law and should have been passed. 21 I would grant leave to appeal but I would dismiss the appeal.

22 GROVE J: I agree. 23 HOEBEN J: I agree. 24 WOOD CJ at CL: The order of the court will be as I proposed. **********

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