R v Loh

COUNSEL : M G Allnutt (Crown) D J Dalton (Respondent) SOLICITORS : S E O'Connor Michael Croke & Co (Respondent) CATCHWORDS : CRIMINAL LAW - Crown appeal against sentence - supply of prohibited drug - principle of totality - principle of double jeopardy - subjective circumstances taken into consideration - sentence correctly discounted for guilty plea and co operation with police - insufficient weight given to respondent's reoffendeding whilst on parole - appeal allowed. Crimes Act 1914 (Commonwealth) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999; s 44 Criminal Appeal Act 1912; s 5D Drug Misuse and Trafficking Act 1985; s 10, 25 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 409 Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 R v Gould [1999] NSWCCA 177 CASES CITED: R v Kaiva, NSWCCA, 9 November 1998 R v Kalache (2000) 111 A Crim R 152 R v Marie (1983) 13 A Crim R 440 R v Moffitt (1990) 20 NSWLR 114 R v Morgan (1993) 70 A Crim R 368 R v Readman (1990) 47 A Crim R 181 R v Simpson [2001] NSWCCA 534 R v Thomson and Houlton (2000) 49 NSWLR 383 DECISION : Sentences below quashed and new sentences set. See para 46.

• 12 -IN THE COURT OF CRIMINAL APPEAL 60664/01

WOOD CJ at CL SULLY J DOWD J

Wednesday 6 February 2002 REGINA (COMMONWEALTH) v EDWIN LOH Judgment 1 WOOD CJ AT CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against sentences imposed upon the respondent by his Honour Judge Coorey in the District Court at Sydney on 3 August 2001. 2 The respondent had pleaded guilty to the relevant charges in the Local Court on 21 March 2001 and had been committed for sentence. By reason of a defect in the committal document, the matter proceeded before his Honour on an indictment, pleas being entered on 18 July 2001, and sentences thereafter imposed, in relation to each of four counts as follows:

Count 1: Supply a commercial quantity of the prohibited drug, methylamphetamine (500.9 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (hereafter referred to as The Drug Act ), - sentenced to imprisonment for six years with a non-parole period of four years, each to date from 9 January 2001, being the date of arrest. Count 2: Supply the prohibited drug 3:4 methylenedioxymethyl-amphetamine (hereafter referred to as MDMA or Ecstasy) (120.9 grams), contrary to s 25(1) of The Drug Act , - sentenced to a fixed term of three years, also to date from 9 January 2001 and to expire on 8 January 2004.

Count 3: Supply the prohibited drug MDMA (14.2 grams) contrary to s 25(1) of The Drug Act - sentenced to a fixed term of three years to date from 9 January 2001 and to expire on 8 January 2004.

Count 4: Deemed supply of a commercial quantity of the prohibited drug MDMA (149.2 grams) contrary to s 25(2) of The Drug Act - sentenced to a fixed term of four years, to date from 9 January 2001 and to expire on 8 January 2005. 3 A further charge of possession of 27.7 grams of cannabis leaf contrary to s 10(1) of The Drug Act, was taken into account on a schedule in relation to count 1. 4 At the time of the offence and sentences, the respondent was on parole for the Federal offences of knowingly being concerned in the importation of cocaine and of possession of that prohibited import. For these matters he had been sentenced, on 30 March 1992, to concurrent terms of imprisonment for twelve years, with a non-parole period of seven years, each to date from 9 September 1990. He had been released to parole upon the expiry of the non-parole period and, accordingly, was subject to supervision and to the possibility of revocation of his parole until it expired on 9 September 2002. 5 By reason of the operation of s 19AQ of the Crimes Act 1914 (Commonwealth) the passing of the sentences for the State offences, in respect of which he appeared before his Honour Judge Coorey, automatically meant that his parole was revoked from 3 August 2001, that being the date on which sentence was passed. 6 A warrant was issued by his Honour, purportedly under s 19AS of the Crimes Act, although it was not in the precise terms of the section, which stipulates that a court imposing a new sentence must issue a warrant authorising the person to be detained in prison, and to undergo imprisonment for the unserved part of the outstanding sentence. 7 The error which his Honour made in expressing the terms of that warrant was no doubt corrected when the warrant itself was drawn up, since it involved no more than a slip of the tongue in the manner in which the order was expressed. 8 It was the case that during his release on parole the respondent had also been convicted and fined in the Local Court, on 11 August 2000, for an offence of the supply of .5 of a gram of Ecstasy. The Attorney General's Department (Commonwealth) formally cautioned the respondent by letter dated 24 August 2000, after this conviction, that committing offences, particularly drug offences, constituted a breach of parole and may lead to its revocation. 9 The practical consequence for the respondent, arising out of the backdating of the new sentences to the date of arrest, was that:

(a) Between 9 January 2001 and 3 August 2001, that is a period of six months, three weeks and four days, he is to be taken as having been held in custody solely in relation to the new offences.

(b) Between 3 August 2001 and 9 September 2002, that is one year, five weeks and two days, he will be serving the balance of parole for the Federal offences concurrently with the sentences for the new offences, and

(c) Between 9 September 2002 and 8 January 2007, although subject to earlier release on parole, for which he is eligible from 9 January 2005, he will again be held in custody solely by reference to the new offences.

THE FACTS 10 The respondent was arrested in the course of a police operation which had him under surveillance on 9 January 2001. At around 8 o'clock on that morning he was seen to hand from his motor vehicle a package to another man, referred to as Mr W, who approached him on a bicycle. When that person was arrested he was found to be in possession of 500 tablets of MDMA or Ecstasy. This became the subject of count 2. 11 At around 11.45 am the respondent was seen to enter a flat at Randwick, from which he emerged a short time later carrying a white shopping bag. At about 3.45 pm he was observed driving into a car park at Leichhardt. He left his vehicle and met a Mr Nicodin, who accompanied him back to his car. 12 Mr Nicodin was then seen to leave that vehicle carrying a white envelope. He was stopped by police. The envelope was searched and found to contain the methylamphetamine, the subject of count 1. 13 The respondent was also stopped and searched as he was driving towards the car park exit. The white shopping bag was found to contain $90,100 in cash. A further $3655.40 was found in his pants pocket. A plastic bag containing 52 tablets of Ecstasy was found in the driver's side pocket of the respondent's motor vehicle. These tablets were the subject of count 3. 14 A search warrant was later executed on the respondent's unit. He had been informed that this was to take place, and as a consequence he informed police that there was cannabis and MDMA in the premises. He indicated their location. 15 In the course of the search the police located 550 Ecstasy tablets, which became the subject of count 4, and the small quantity of cannabis leaf, which was included in the schedule. 16 Mr W was sentenced on a single charge of supply a prohibited drug (deemed) to imprisonment for four years with a non-parole period of eighteen months. Mr Nicodin still awaits trial. 17 By reason of the significantly different activities in which the respondent and these other persons were involved, their cases provide no assistance, to my mind, by way of parity. 18 The estimated street value of the drugs the subject of the various charges was noted by his Honour as follows: Count 1 $ 50,000 Count 2 $ 20,000 Count 3 $ 2,080 Count 4 $ 22,000 TOTAL $ 94,080

SUBJECTIVE CIRCUMSTANCES 19 In sentencing the respondent, his Honour took into account evidence from Janette Fleming, as well as a report from Mr Robertson who belonged to an organisation referred to as The Dependency Counselling and Report Service. 20 In summary, Miss Fleming said the respondent had assisted her son while he was an inmate at Cessnock Gaol and that he had been a visitor to their home while on work release, during which time he had provided additional help. She expressed an interest in now assisting him. 21 The report from Mr Robertson was received without objection from the Crown. For that reason, I consider we should also have regard to it, although I have very serious doubts concerning its admissibility. While the author claimed qualifications by a Post Graduate Diploma in Clinical Drug Dependency from some unidentified institution, and also claimed experience in working with several non-Government organisations in relation to drug use and dependency, the report went well beyond this into areas properly falling within the fields of psychology and/or psychiatry, for which no qualifications were shown to exist on the material before his Honour. 22 Care needs to be taken in the reception of material of this kind: See my observations in R v Moore NSWCCA 23 April 1998 relating to the use of reports from criminologists offered in aid of sentencing, lest such reports become a vehicle for placing before the Court material outside the author's area of expertise, or which would otherwise be of a hearsay kind concerning an offender's personal circumstances. 23 The latter kind of material should properly be led from the offender or from a qualified person, such as a psychologist or officers of the Probation and Parole Service, or of Juvenile Justice, who routinely prepare background or pre-sentence reports which are of considerable value and assistance to the Court. Otherwise, the vehicle of a report should not be used so as to take advantage of the technical rules of evidence which permit the reception of hearsay evidence. It is essential that persons who prepare reports for use in Court be properly qualified and that they confine their observations and comments to their area of specialty. 24 Notwithstanding those observations, I will note that in the course of his report Mr Robertson offered, inter alia, the somewhat tentative opinion that the use of substances by the respondent: "... might have created some deluded and grandiose thinking which could have contributed to his decision to become involved in this activity; that 'this introduction to stimulant substances was a mechanism to deal with his inability to assert himself, his isolation and his perception of himself', and that 'he seemed easily led and had an over-developed sense of responsibility to please people. Thus his lack of assertiveness." 25 It is to those paragraphs in his report - which no doubt were the reason for its tender - that my reservations attach. However, for the reasons mentioned, on this occasion I will assume that the material was properly to be taken into account. 26 Otherwise, it was shown that the respondent was aged forty-seven years, that he was in a stable relationship with a woman with whom he has a young son, that he had come to Australia from Singapore in 1973 in order to seek a better life, that he had a history of drug use (cocaine and Ecstasy) extending over the three years following his earlier release on parole, and that he had a strong relationship with a supporting family. 27 Mr Robertson's report suggested he had a lot of shame in relation to his drug use and the current matters. He also understood that the respondent had worked consistently in this country in the hospitality and restaurant industry and had undertaken various TAFE courses.

THE SENTENCES 28 In sentencing the respondent his Honour accepted the submission advanced, which was conceded by the Crown at trial, that the sentences imposed should be served concurrently with one another. This was because the offences were considered to be part of a continuing and interconnected episode centred on the day of arrest. One may have some reservations in relation to that approach, having regard in particular to the movements of the respondent on that day, and the finding of drugs at his home, along with the possession by him of considerable sums in cash. However, it is not a matter which I consider should now attract our attention, having regard to the Crown's concession. That is, of course, subject to the need to ensure that the sentencing order, as a whole, did reflect the total criminality involved and was framed in accordance with the principles established in Pearce v The Queen (1998) 194 CLR 610. 29 In accordance with s 44 of the Crimes (Sentencing Procedure) Act 1999 (hereafter referred to as The Sentencing Act) his Honour found special circumstances to exist referable, it would appear, to the respondent's motivation to rehabilitate himself. That would seem to have been related to the fact he had a young son, and to Miss Fleming's offer of assistance, to him. Additionally, it appears to have depended upon an observation in Mr Robertson's report that he was seen to be using his time in custody positively and constructively, a matter which he said was attributable to his vision of a developing relationship with his son and partner. 30 I would add that Mr Robertson's observations in this regard appear to have been based on a short conference on a single occasion lasting for two hours. 31 His Honour made no express reference in the reasons for sentence to the utilitarian value of the pleas, which obviously were pleas offered at the earliest moment, as he should have done in accordance with s 22 of the Sentencing Act. Nor did he make mention of the respondent's co-operation with the police in informing them where they might find the Ecstasy and cannabis at his home. It may, however, be assumed from the sentences that these matters were not overlooked, particularly as they were emphasised during the submissions on sentence.

THE APPEAL 32 The Crown submitted the sentences were manifestly inadequate, and suggested that this has occurred as a result of his Honour giving too much significance to the respondent's prospects of rehabilitation, while failing to reflect by way of deterrence and punishment the fact that he was trafficking in drugs for financial gain and had re-offended while on parole for serious drug offences. It was further submitted that his Honour erred in finding special circumstances which led to him fixing a non-parole period for count 1 which was two-thirds of the head sentence. 33 It is well established that this Court should not interfere with a sentence on a Crown appeal merely because it is of a view that it is less than that which the Court would have itself imposed. See House v The King (1936) 55 CLR 409 at 504 and see also Dinsdale v The Queen (2000) 202 CLR 321. 34 An appellate court may only interfere if it is shown that the sentencing judge fell into a material error of law or fact, a test which may be met where the sentence is so far outside a legitimate range of sentencing discretion that error must be assumed, even though it is not otherwise apparent on the face of the reasons for sentence. See The Queen v Wong 76 ALJR 79 at 90, per Gaudron, Gummow and Hayne JJ. 35 In the present case the respondent was clearly entitled to a discount towards the top of the range suggested in R v Thomson and Houlton (2000) 49 NSWLR 383, having regard to the utilitarian value of that plea and his co-operation with police. 36 Of greater significance, however, in this case is the circumstance that the current offences were committed while the respondent was on parole for very serious drug offences which had seen him spend seven years in gaol and only shortly after he had received a formal warning as to the consequences of re-offending. His betrayal of parole was a matter which had to be regarded very seriously, for the reasons discussed in R v Daridis NSWCCA 18 December 1986, R v Plocharsky NSWCCA 14 September 1988 and R v Readman (1990) 47 A Crim R 181. 37 As Badgery-Parker J observed in R v Moffitt (1990) 20 NSWLR 114 at 128, the offender in such circumstances should: "... not only suffer the revocation of his parole with the consequent need to serve out the balance of the head sentence but should also suffer a significant punishment for later offences to mark the gravity of his conduct in thus abusing his parole."

38 The present case was one where the further offences, particularly in the light of the unequivocal caution, to my mind, indicated a continuing attitude of disobedience of the law warranting a condign sentence on the basis of punishment, retribution and deterrence, for the reasons discussed in R v Kalache (2000) 111 A Crim R 152. 39 Both MDMA and methylamphetamine are mid-range drugs and the respondent was trafficking in them for profit, a factor which is a significant element in weighing his objective criminality. See R v Marie (1983) 13 A Crim R 440. 40 It was no excuse that his motive was to get a "head start" because of his need to provide an adequate lifestyle for his partner and the impending birth of his child, as he reported to Mr Robertson. His Honour appears to me not to have given sufficient consideration to these factors, or to the principle that, when matters are taken into account on a schedule, it remains necessary to reflect their existence in the penalty imposed for the charged offences. See R v Morgan (1993) 70 A Crim R 368 and R v Gould [1999] NSWCCA 177. 41 While it is true that the further offences have had the effect of causing the respondent's return to prison to serve out the balance of his parole, and while he is not to be additionally punished for the earlier offences (R v Kaiva, NSWCCA, 9 November 1998), the present case remains one where the fact of him reoffending on parole needed to be taken into account in relation to totality: R v Hajjo NSWCCA 31 August 1992. 42 In all these circumstances, little of assistance is gained from reference to sentencing statistics or other sentencing decisions for offences of supply of methylamphetamine or of MDMA. Inevitably, there is a wide range of objective and subjective circumstances encountered in other cases, which can be masked by a bare reference to a collection of statistics, or by a reference to individual cases which do not share the critical feature of re-offending while on conditional liberty, following the imposition of sentences for serious drug offences. 43 By reason of these considerations, I have reached the conclusion that the sentences passed were manifestly inadequate and did not reflect the punitive, deterrent and other considerations which should have been taken into account. In my view, his Honour failed to give sufficient weight to the fact that the respondent was trafficking in a significant way for personal and financial gain, and while on parole. 44 I have given careful consideration to the question of double jeopardy and to the discretion which attaches to Crown appeals, as established in Griffiths v The Queen (1977) 137 CLR 293, R v Allpass (1993) 72 A Crim R 561 and Everett v The Queen (1994) 181 CLR 295. 45 I am unpersuaded that the respondent's prospects of rehabilitation or any other identifiable factor should cause the Court in the exercise of its discretion to decline to intervene. However, it remains true that if the Court elects to re-sentence, then the sentence imposed should normally be one towards the lower end of the range of sentences which could properly have been passed at first instance: see Dinsdale v The Queen, at para 62 per Kirby J. 46 I would accordingly propose that the sentences below be quashed and that in lieu thereof the respondent be sentenced as follows: Count 1 Taking into account the offence on the schedule, imprisonment for seven and a half years to commence from 9 January 2001 and to expire on 8 July 2008. I would fix a non-parole period of five years, similarly to commence from 9 January 2001 and to expire on 8 January 2006. Counts 2 and 3 Imprisonment in respect of each count for a fixed term of four years, similarly to commence from 9 January 2001 and to expire on 8 January 2005. Count 4 Imprisonment for six years to commence on 9 January 2001. I would fix a non-parole period in respect of this count of four years, similarly to commence from 9 January 2001 and to expire on 8 January 2005. 47 Upon that basis the earliest date upon which the respondent would be eligible for release on parole would be 9 January 2006. 48 In view of the concession made below and in exercise of discretion, I would direct the sentences be served concurrently rather than partially cumulatively upon each other. 49 By reason of the way in which the sentences should, in my view, be structured, I would decline to fix a non-parole period in respect of the sentences in respect of counts 2 and 3. 50 I would not disturb the finding of special circumstances made below. Consistently with the decision in this Court in R v Simpson [2001] NSWCCA 534, it was proper to have regard to the respondent's prospects of rehabilitation, and to his need for ongoing supervision in relation to his history of drug use, and also so as to foster his lawful return to the community after a second significant period of imprisonment. 51 It is in those circumstances appropriate, in my view, to retain the proportion between the non-parole period and head sentence which his Honour had determined. 52 SULLY J: I agree with the entirety of what has been said by the Chief Judge and with the orders his Honour proposes. 53 DOWD J: I also agree. 54 WOOD CJ AT CL: The orders of the Court will therefore be as I have proposed.

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