R v Phay [2009] ACTSC 130

Supreme Court of the ACT|2009-09-10|Before: Rares J

Huat Phay (called the "offender" in these orders) is convicted of trafficking in a controlled drug other than cannabis, namely heroin, in the Australian Capital Territory on 14 April 2008 and is sentenced to 12 months imprisonment.

2. The sentence in order 1 is to be suspended and the offender released on condition that:

(a) he sign an undertaking to comply with the conditions of this order;

(c) the offender comply with the offender's good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005;

(d) he maintain contact with ACT Health Alcohol and Drug Program by attending on programs at such times as a counsellor may nominate for the purpose of relapse prevention for 1 year;

(e) he perform 100 hours of Community Service on or before 9 September 2010.

The offender is convicted of possessing a drug of dependence namely methylamphetamine in the Australian Capital Territory on 14 April 2008 and is sentenced to pay a fine of $250.

4. The fine in order 3 is ordered to be paid on or before 1 October 2009.

The offender is currently employed as a night shift taxi driver and it is not the intention of the Court that the obligation in order 2(e) (that the offender perform community service work) unreasonably interfere with his ability to undertake his employment.

1. The accused has pleaded guilty to two offences relating to his drug problem. The first offence was that on 14 April 2008, he trafficked in a controlled drug, namely, heroin, in contravention of s 603(7) of the Criminal Code 2002 (ACT). The second offence was that, on the same date, he possessed a drug of dependence, namely, methyl amphetamine, in contravention of s 169(1) of the Drugs of Dependence Act 1989 (ACT).

2. A year ago I made a deferred sentence order, see R v Huat Phay [2008] ACTSC 96. The accused has complied with all of the obligations imposed on him when I deferred his sentence. It is necessary for me to explain the conclusions to which I have come.

3. The accused is a Cambodian by birth. When the regime of Pol Pot assumed power in 1975 he was about six years old. With his parents, four sisters and elder brother, the family was moved from their city home to a prison farm. The accused saw his mother and three younger sisters die there. And he believes, having last seen them, when his father and elder sister were taken away from him and his brother that they too were killed there by the terrible regime that indulged in a massive crime against humanity in that period in Cambodia.

4. When Vietnam invaded Cambodia in about 1979, the accused and his brother fled to Thailand as refugees. His elder brother was about ten years older than he. Finally, both of them came to Australia as refugees in about 1983. The accused attended Years 9, 10 and 11 of high school and then left to undertake a course of tertiary education in bartendering for about 12 months. He worked for five years, mainly as a bartender, and then, with a friend, commenced a restaurant business. Soon after that happened, he entered into a relationship with a lady that lasted eight years. Four years after the restaurant began, the business experienced difficulties, and he left South Australia, spending two years in Sydney, and then going to Melbourne where he worked as a chef for four more years.

5. He and his girlfriend came to Canberra in 2003, but their relationship failed in 2004. He then began driving a taxi on night shifts until late 2006. The accused gave evidence that he was depressed by the break up of the relationship with his girlfriend and lonely. He began using drugs, firstly, ecstasy on weekends, and later in 2007 began using methyl amphetamine or ice on weekends with acquaintances who shared his drug habits. In early 2008, he began smoking heroin everyday. In order to support his habit, he commenced trafficking it by selling it to other people whom he knew to be users.

6. On 11 April 2008, police obtained a search warrant in respect of the accused under s 187 of the Drugs of Dependence Act. He was under surveillance on 14 April 2008 when he was telephoned by one of his customers, and they arranged a meeting at the Dickson Tradesmans Club car park. There the accused sold that customer 0.5 grams of heroin in a pink water balloon, for $150.

7. Shortly after that transaction, the police dealt with the customer and continued to maintain the accused under surveillance. He returned to his housing commission unit, checking his letterbox on a number of occasions. Later that afternoon, the accused again met with another of his customers, and supplied that customer with a pink balloon containing 0.439 grams of heroin. At the time of his arrest shortly after the transaction $150 was found under the accused's drivers' seat in his vehicle. Also in the car was another small, yellow balloon believed to contain heroin which the accused said was for his own personal use, together with $333 in his wallet, two mobile phones, his house keys, and a key to the padlock of his letterbox.

8. The accused was accompanied to his home by the arresting officers where they found 5.697 grams gross of heroin, with a purity ranging between 30.6% and 33.2%. This equated to 1.868 grams of pure heroin. Some of the heroin was found in the accused's locked letterbox, a number of empty water balloons were seen in his kitchen bin, and the police also found in his unit scales containing traces of heroin, together with some other empty balloons, and a glass pipe. Those matters form the foundation for the trafficking charge. The police also found at the accused's home a clip seal bag containing 0.097 of methyl amphetamine.

9. The accused was bailed to appear in the Magistrates Court on 12 May 2008. After his arrest, he stopped using heroin completely. He sought counselling to stop his craving. He admitted to the facts that I have set out above, and acknowledged that his behaviour had caused harm to other people. Since having been arrested and charged, the accused changed his group of friends or acquaintances involved in the drug scene and moved his life forward in what can only be seen as a positive manner.

10. After an initial plea of not guilty on 26 May 2008, the accused pleaded guilty following receipt of the Crown brief when next before the Magistrates Court on 17 July 2008. He appeared before me for sentence on 11 September 2008. He has no prior criminal history. On the previous hearing, I heard unchallenged evidence from the accused, setting out largely the history that I have just given. In addition, at that time, the pre-sentence report noted that he was unemployed, in receipt of Newstart payments and was not assessed as being suitable for either community service or periodic detention because of his dependence on controlled drugs. The pre-sentence report said, and I accept, that the accused had accepted complete responsibility for his offending behaviour, and had acknowledged his commission of a serious criminal offence causing harm to others through his actions. The pre-sentence report noted that he appeared to be remorseful for his offending behaviour, and having seen and heard from him in the witness box, I fully accept that he is. At that time he was seen to be a person with a low to moderate risk of re-offending, but he had by then commenced community-based counselling to address his behaviour, and was found eligible for a treatment order. A 12 month treatment order was recommended by the treatment assessment panel in its report. In his initial assessment on 3 September 2008, his alcohol and drug program counsellor noted that, that the accused was honest and open in his presentation, a matter which I also observed to be a feature of his behaviour in giving evidence.

11. The accused wrote a letter addressed to the court for the last hearing, which I accept as true. He said he was ashamed and took full responsibility for what he had done. He outlined his family history, his own personal history, his change of friends and lifestyle. He wrote that he had not been able to return to the workforce before that hearing because one of his bail conditions prevented him from driving a vehicle. He said that he was very sorry for what he had done, and recognised the pain and worry that he had caused to those that cared about him. He said he wanted to have a fresh start in life and that he believed he would not re-offend.

12. One of his friends, who is also present in court, Sang Nguyen, wrote a reference for him. The Crown did not suggest that it was necessary that he give evidence to verify it. I accept the evidence in the reference which confirmed the appearance of depression and loneliness that the accused gave at the time he was involved with heroin.

13. In passing a deferred sentence on the accused last year, I told the accused that I was then considering imposing a sentence of full-time imprisonment for 12 months, but considered that, based on the reports in evidence and his own testimony, I should give him a chance to demonstrate that he could turn the corner and, over the following year, try to make something better of his life.

14. I am satisfied that he has achieved that objective. The ACT Corrective Services has provided a pre-sentence report of 4 September 2009 for today's hearing. It noted that on five occasions since last year the accused has been sent for urinalysis and no illicit substances were detected. It noted that these results supported his claim of abstinence. I accept that he has abstained during the last 12 months from any indulgence in drug-taking.

15. The pre-sentence report also noted that the accused had diligently complied with the treatment order that I imposed, that he gained employment in October 2008 which continues to the current day, as a taxi driver, as verified by reference to his current employers' records.

16. He has now developed plans to open a small restaurant business next year. He told his probation officer that he now earns about $900 per week after tax, and is able to save $450 after expenses, accumulating savings in the last year of about $7,000 and has a car worth $2,000. His other car, seized at the time of his arrest, was worth $8,000 and is likely to be the subject of a forfeiture order. He does not appear to have any debt.

17. His probation officer said that in the last 12 months the accused had done everything asked of him by both the probation and parole service and the drugs of dependence assessment panel. It noted his commendable achievement of being able to find and keep full-time employment during that period, saving and forming plans to begin his new business, and keeping himself clear of the drugs that had brought him to this unhappy position in which he is today.

18. It was the probation officer's assessment that no real benefit would be achieved by any further supervision as the accused appeared to have moved on with his life since being charged, although the officer suggested that it may be prudent for the accused to retain contact with those responsible for treating him to prevent relapses. He was now assessed at a low risk of re-offending and as a person suitable both for community service work and periodic detention.

19. On 8 September 2009, the Diversion Alcohol and Drug Program noted that the accused had completed his treatment order and had achieved several positive outcomes. He had attended counselling appointments with Ms Clifford on a very regular basis and he had responded positively to the counselling process. He had remained abstinent from drug use, worked hard on his relapse prevention strategies and was aware of potential triggers and high risk areas that could cause him to relapse to drug use.

20. He reported ceasing contact with his previous bad associates, had obtained his employment and had entered into a stable relationship with stable accommodation. It concluded that he had demonstrated a commitment to compliance with the recommendations of the treatment order, demonstrated insight in to his alcohol and drug use issues, and had engaged very well with all aspects of his obligation to comply with the treatment order. He had been regular, punctual, and a very pleasant person to deal with and appeared to be committed to maintaining his current lifestyle and recovery, and building a positive future.

21. These aspects are a credit to the accused. They show that he has grasped the need to change and achieved a remarkable turnaround in a life that could have gone very much worse than it did.

22. The offending, in respect of the more serious charge of trafficking, is an offence that society rightly regards as being very destructive of lives, not only of the people who acquire drugs from traffickers, but those of their families and friends around them. The accused engaged in the trafficking in order to support his own habit. Some of the heroin found at his home was for his own use, although I have no doubt that some of it was for further trafficking opportunities. This aspect of the offending has given me the most difficult part of my task in determining an appropriate sentence.

23. The accused has engaged in a very impressive and highly commendable rehabilitation of himself, largely through his own efforts and has I think turned his own life around. It is no small achievement, and he should be proud of what he has done, particularly in light of his own acceptance of the shame for his earlier misconduct. He now has the chance to become a useful citizen of this society which he is currently demonstrating he will be in the future. For that reason, it seems to me to be appropriate that I should require him to perform a reasonable, but in my opinion not excessive, amount of community service so that he can be seen to have had an appropriate level of punishment imposed on him, and to be able to use that punishment for good in a way that sending him to prison would be unable to achieve. He has achieved his own rehabilitation through his own efforts.

24. In accordance with Part 4.1 of the Crimes (Sentencing) Act 2005 (ACT), in formulating the sentences I am about to impose, I have had regard to each of the matters relevant under section 33, and have also had regard, pursuant to section 35, to the reasonably prompt plea of guilty that the accused has made, carrying with it, as his evidence demonstrated, his own acknowledgment of his culpability and responsibility for his offending. I have also had regard to the utility of that plea and taken it into account in formulating the overall sentence which I will impose.

25. I am of opinion that the requirement in s 37 that a sentencer identify a particular level of penalty that would have been imposed, but for a plea of guilty, is an exercise that is fraught with an invitation to commit a sentencing error. Sentencing, as the High Court has demonstrated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371 [27], 373-375 [37]-[39] per Gleeson CJ, Gummow, Hayne and Callinan JJ is usually arrived at after a transparent process of instinctive synthesis of all relevant factors: see too Pearce v The Queen (1998) 194 CLR 610 at 622 [39] per McHugh, Hayne and Callinan JJ; and Lukatela v Birch [2008] ACTSC 99; (2008) 164 ACTR 24, 37-38 at [75]-[77] per myself. In this particular case, the willingness of the accused to plead guilty is only part of the conduct to which I must have regard to in forming an overall assessment of the penalty that should be imposed.

26. Here, his plea of guilty has demonstrated what I perceive to be his essentially human, but good, character in being able to reform himself and his own behaviour. The plea is an incident of that character. However, it must be considered together with all of the other qualities in his reformatory conduct that I have noted. It is wholly artificial and quite unsatisfactory for s 37 to require a sentencer to single out and somehow segregate from all of the accused's conduct the impact in the sentencing process of one particular element, namely the plea of guilty. Nonetheless I suppose that had the accused not pleaded guilty in the circumstances in which he did and at the time at which he did, I would have imposed a sentence of imprisonment that was not suspended at all for 12 months full-time custody.

(1) Huat Phay (called the "offender" in these orders) is convicted of trafficking in a controlled drug other than cannabis, namely heroin, in the Australian Capital Territory on 14 April 2008 and is sentenced to 12 months imprisonment.

(2) The sentence in order 1 is to be suspended and the offender released on condition that:

(a) he sign an undertaking to comply with the conditions of this order;

(b) he be of good behaviour for a period of 3 years from today;

(c) the offender comply with the offender's good behaviour obligations, including the core conditions of the order, under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005;

(d) he maintain contact with ACT Health Alcohol and Drug Program by attending on programs at such times as a counsellor may nominate for the purpose of relapse prevention for 1 year;

(e) he perform 100 hours of Community Service on or before 9 September 2010.

(3) The offender is convicted of possessing a drug of dependence namely methylamphetamine in the Australian Capital Territory on 14 April 2008 and is sentenced to pay a fine of $250.

(4) The fine in order 3 is ordered to be paid on or before 1 October 2009.

(5) The offender is currently employed as a night shift taxi driver and it is not the intention of the Court that the obligation in order 2(e) (that the offender perform community service work) unreasonably interfere with his ability to undertake his employment.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Rares

Solicitor for the Crown: Director of the Public Prosecution for the ACT

(Sentence Administration) Act 2005

(Sentencing) Act 2005

(Sentence Administration) Act 2005

(Sentencing) Act 2005

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