R v So

Court of Criminal Appeal (NSW)|2004-10-07|Before: Studdert J, James J, Gregory J

CITATION : R v So [2004] NSWCCA 362 revised - 25/10/2004 HEARING DATE(S) : 7 October 2004 JUDGMENT DATE : 25 October 2004

JUDGMENT OF : McClellan AJA at 1; Studdert J at 2; James J at 43 DECISION : Leave to appeal granted; appeal dismissed.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act, s 44 Drug Misuse and Trafficking Act, ss 25, 33 R v Fakhreddine [2004] NSWCCA 354 CASES CITED : R v Morgan (1993) 70 A Crim R 368 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : Regina v Tony So FILE NUMBER(S) : CCA 2004/1912 CCAP COUNSEL : J. Girdham (Crown) P. Byrne SC/S. Buchen (Appellant) SOLICITORS : S. Kavanagh (Crown) Gregory J. Goold (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1265 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1912 CCAP

McCLELLAN AJA STUDDERT J JAMES J

Monday 25 October 2004 REGINA v TONY SO Judgment 1 McCLELLAN AJA: I agree with Studdert J. 2 STUDDERT J: The applicant, Tony So, seeks leave to appeal against sentences imposed upon him in the District Court by his Honour Judge Woods QC on 14 October 2003. Earlier, on 24 February 2003, the applicant had pleaded guilty to two counts in an indictment:

(i) The first charged him with the offence of supplying not less than the commercial quantity of heroin between 16 May 2000 and 20 October 2000;

(ii) The second charged him with supplying not less than the commercial quantity of cocaine during the same period. 3 On 14 October 2003 his Honour imposed concurrent sentences concerning the two counts in the indictment, each of thirteen years. The sentences were backdated to commence on 19 August 2002, thus giving credit for time in custody. The judge set a non parole period of ten years six months to expire on 18 February 2013. The judge took into account Form 1 matters to which I shall later refer when passing the sentence on the first count. 4 It was conceded by the applicant that the imposition of concurrent terms was appropriate having regard to the circumstance that the offences arose from the one ongoing enterprise. 5 The sentencing judge received a considerable body of evidence, both in relation to the objective features of the offences and the subjective features in the applicant's case. 6 The applicant does not seek to challenge any of the facts found by the sentencing judge, acknowledging that such facts were reasonably open to be found on the evidence presented. 7 In the circumstances it is appropriate to go to the remarks on sentence in order to summarise the relevant objective and subjective features in the applicant's case. 8 The applicant was one of two offenders sentenced on 14 October 2003 for involvement in drug supply offences, the other offender being a man named Wen Sheng Zhang. His Honour found Zhang had a less significant role than the applicant in the commission of the offences, and this is reflected in the lesser sentences imposed upon him. However, it is not contended that the applicant had any justifiable sense of grievance by reason of Zhang being dealt with more leniently, and his sentences do not form the basis of any ground of appeal by the applicant. 9 His Honour found that on 29 August 2000 police from the King Cross Drug Unit commenced an operation focussed on the activities of an organised drug syndicate that was selling heroin and cocaine in the Kings Cross, Darlinghurst, Surry Hills and Redfern areas. The applicant was found to be involved in that syndicate. Other participants included Zhang, whom the judge found had a less responsible managerial role in the operations of the syndicate than the applicant, and there were seven identified runners. The judge found that the applicant was the principal of what was, (and here I summarise what I perceive to be the effect of his Honour's findings), a sophisticated enterprise which distributed small quantities of heroin and cocaine to buyers. Extensive use of telephones was employed in the enterprise, and, indeed, the applicant's guilt was established in substantial part by telephone interceptions. His Honour was unable to find the total quantities of heroin and cocaine that were supplied, but he did find that over the five months period defined in the indictment the quantities of heroin and of cocaine supplied were each not less than the commercial quantities as defined by statute. 10 Each of the offences against s 25(2) of the Drug Misuse and Trafficking Act was in a category for which s 33(2) of that Act set a maximum term of imprisonment of twenty years. 11 The sentencing judge was also asked to take into account in his sentencing task four scheduled offences:

(ii) goods in custody, being a sum of $600 reasonably suspected of being stolen or otherwise unlawfully obtained;

(iii) a further count of goods in custody, being the possession of $780 reasonably suspected of being stolen or otherwise unlawfully obtained;

(iv) carrying a cutting weapon upon apprehension, namely an orange-coloured Stanley knife. 12 A number of grounds of appeal have been pursued before this Court:

(i) that there was error in fixing the relationship between the head sentence and the non parole period;

(ii) that the discount for the pleas of guilty was too little;

(iii) that the sentences were manifestly excessive;

(iv) that there was error in the failure to find special circumstances. 13 I deal with the various grounds of appeal seriatim.

Ground 1 14 The non parole period of ten years six months is more than seventy-five percent of the head sentences. Had the non parole period been set at seventy-five percent, then it would have been nine years nine months. 15 Complaint is made that there was error in setting the non parole period and that the judge did not invite counsel to address him before arriving at a non parole period that amounted to something of the order of eighty percent of the head sentences. 16 Section 44 of the Crimes (Sentencing Procedure) Act 1999 applied here in its earlier form. Hence, the relevant provision was in these terms: "44. (1) When sentencing an offender to imprisonment for an offence a court is required: (a) firstly to set the term of the sentence; and (b) secondly to set a non parole period for the sentence… (2) The non parole period must be not less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision…" 17 Section 44 did not impose a requirement that the non parole period must not exceed three-quarters of the term of the sentence. The only restriction which s 44(2) imposed was upon setting a non parole period of less than three-quarters of the term in the absence of special circumstances. 18 The transcript records that each counsel was given ample opportunity to make submissions on sentence and doubtless those submissions were made by counsel for the applicant recognising the language of s 44. Indeed, the sentencing judge was asked to set a non parole period being less than three quarters of the head sentence. 19 It is clear from his Honour's sentencing remarks that his Honour regarded ten years six months as the appropriate minimum sentence to be served. He said so in as many words (ROS 21). In my opinion, it was within his Honour's discretion to so conclude and the sentence as structured involved no contravention of s 44. This ground fails.

Ground 2 20 It was next submitted that the discount for the pleas of guilty was too little. 21 His Honour indicated in his remarks on sentence that had it not been for the pleas of guilty he would have imposed a sentence of fifteen years imprisonment. The reduction of the actual head sentences by two years represented a discount of less than fifteen percent, namely 13.3%. 22 His Honour expressly recognised that the pleas of guilty were not early but that they had the effect of avoiding a complicated and lengthy trial. He said as much in the course of hearing argument on the day prior to the imposition of the sentences, observing (T 31, 13 October): "It's been a long and complex sentence so it would have been an even longer, more complex trial." 23 The applicant pleaded guilty one week after Zhang had done so and only shortly before the trial was due to commence. Indeed, the matter had been listed for trial earlier, but adjourned on the applicant's application because of a change in his legal representation. This was not a case in which an earlier plea could not have been proffered. His Honour said at T 13: "It has not been suggested before me that the pleas in this case were the result of any amendment of the indictment which made it impossible for either of the offenders to bring their minds (or their legally advised minds) to bear on the question of whether or not the pleas should be one of guilty or not guilty." 24 Plainly there is a range within which the discount appropriate for a particular case is to be found in the exercise of the discretion of the sentencing judge. This range was stated by Spigelman CJ in R v Thomson & Houlton (2000) 49 NSWLR 383 at para 152 to be from ten to twenty-five percent. A discount of twenty-five percent is generally given for a plea offered at the earliest opportunity and such a discount would have been much too generous here, having regard to the timing of the applicant's plea. 25 In my opinion it was entirely appropriate for the judge in the exercise of his discretion to fix a discount factor of 13.3%. That made due allowance for the utilitarian value of the plea.

Ground 3 26 Thirdly, it was submitted that the sentences imposed were manifestly excessive. This submission was supported by reference to statistics which it was suggested indicated that these sentences were outside the permissible range. 27 Caution has to be exercised in the use of the statistics provided by the Judicial Commission. The statistics here produced do not indicate for instance the amount of the drug involved in the cases used, whether the matter went on appeal as a Crown appeal, and what discounts were allowed for pleas, or indeed for assistance to authorities. Moreover, it has to be recognised that an appropriate sentence can only be reached following a careful assessment of all the features of the particular case. 28 In written submissions reference was made to sentences imposed in other cases. Counsel did not refer to those authorities in argument before the Court, and here again it has to be recognised that what is a proper sentence in one case does not determine what sentence a judge should impose in another case. 29 The Crown was correct in submitting that appellate intervention is not justifiable simply because an applicant can show that other offenders in other cases received lesser punishment. Attention has been drawn to the dicta of Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371: "It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who was not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence…" 30 It was also submitted that the majority of the transactions as found by his Honour involved small quantities and his Honour also found (ROS 6) that there was probably some senior person over the applicant. Nevertheless his Honour did find that the applicant's role was that of a "principal organiser", who was "actively and extensively involved in arranging over the telephone and by direct contact that street runners should go out into the street and sell quantities of heroin and cocaine," and that this occurred over a significant period of time (ROS 6). 31 It is relevant to heed the maximum penalty set by the legislature, namely a term of imprisonment of twenty years. This is one of the indicators available to a sentencing judge, at least as a starting point. The applicant was here involved in sophisticated criminal activity as above described and was involved in it for a period of five months. There were no less than seven identified street runners acting under his control. The individual deals to the individual customers may have been relatively small, but the quantities of narcotics were not less than commercial quantities, and this applied both to the cocaine and to the heroin. 32 It is not to be overlooked that s 33(2) sets the maximum term of imprisonment at twenty years for commercial quantities but s 33(3) sets the maximum penalty as imprisonment for life in cases involving large commercial quantities. Section 33(3) has no direct application here, but the range of penalties set in ss 33(2) and 33(3) is demonstrative of the gravity of dealing in drugs, whether the quantities be large commercial quantities or commercial quantities. 33 The criminal activity in which this applicant was engaged was extremely serious and extensive. It was activity engaged in simply for financial gain and it warranted stern punishment. I am not persuaded that in taking a starting point of seventy-five percent of the maximum available penalty set by the legislature, before factoring in a discount for the guilty pleas, the judge fell into error. 34 A submission to similar effect was recently rejected by the Court of Criminal Appeal in R v Fakhreddine [2004] NSWCCA 354. 35 In Fakhreddine an appeal against a sentence of imprisonment for twelve years with a non parole period of eight years was dismissed. The appellant in that matter had pleaded guilty to supplying a commercial quantity of heroin, and was found by the sentencing judge to be a "manager and controller" of a syndicate engaging runners to supply on the streets. The quantity of heroin was 421.3 grams. The sentencing judge took a starting point of sixteen years imprisonment, before allowing a discount of twenty-five percent for the appellant's guilty plea. On appeal no error was found in the starting point of sixteen years, which was found to be "within the range of the sound exercise of discretion" (see the judgment of Grove J at para 16). 36 Of course, as was stressed in Morgan (supra), the objective gravity of the particular offence and the subjective circumstances of the particular offender have to be carefully considered, but having considered these features in this case, I am not persuaded that error has been shown. In my opinion, the sentences were open to the sentencing judge to impose in the sound exercise of his sentencing discretion.

Ground 4 37 It was submitted finally that the judge was in error in declining to find special circumstances. This ground is, of course, linked to Ground 1 already considered. 38 In Simpson (2001) 53 NSWLR 704 the Chief Justice observed at para 60 that: "It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'." 39 However, the issue to be considered is whether in the particular circumstances of a given case, the normal statutory ratio should be varied. 40 Here it was submitted that his Honour ought to have found special circumstances because of the applicant's prior good character, his relative youth, and his excellent prospects of rehabilitation. Doubtless there have been cases where there have been such circumstances in their setting which warranted a finding of special circumstances so as to influence the ratio of non parole period to head sentence, but whether or not special circumstances were found was a matter involving the exercise of a discretion. The judge did not here overlook the issue of special circumstances; what he said was this : "I do not find special circumstances justifying any variation between the usual head sentence/non parole period relationship. On the contrary, I regard ten years and six months as the appropriate minimum sentence to be served and I do not regard a very extensive period of supervision as being significant." (ROS 21-22) 41 The judge expressly found that he considered it unlikely that the applicant would re-offend. The sentence as structured gave opportunity for two years six months supervision following the expiration of the non parole period. That was a lengthy period available for supervision and it was open to the judge to find that it was more than adequate to address the consideration of the applicant's rehabilitation, particularly when he did not consider the applicant was going to re-offend. Moreover, the judge was entitled, as he did, to conclude that no less a period of ten years six months should be set as a non parole period. In my view error has not been demonstrated on this issue of failure to find special circumstances. 42 For the above reasons, I propose that leave to appeal be granted but that the appeal be dismissed. 43 JAMES J: I also agree. **********

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