At 404 the judge continued:
"However, when it comes to sentence, the question is … whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime] and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability."
17 Obviously, if the police agent had not made the request or made the purchase, the offence of supplying prohibited drugs to the police officer would not have been committed. Chan would have supplied someone else. The involvement of the police in the commission of the crime was not such as diminished Chan's culpability. In the present case Chan, the seller and supplier was happy to deal with new customers unconnected with the police.
18 Where it is suggested that the supplier was hesitant or diffident or reluctant or was persuaded to supply a greater quantity than he wished, the accused supplier should almost always give evidence. It is acknowledged that there may be the odd case where the police give evidence diminishing the accused's responsibility. Any question of encouragement by the police and that making a difference should appear in or from the evidence. Such matters should not be resolved on some speculative or informal basis or on assumptions.
19 The judge thought that there was a further reason why he should give Chan some discount from what might otherwise be the appropriate punishment for supplying, for a substantial amount of money, heroin in the quantities involved in this transaction. The judge held that the legislation relating to the supply of prohibited drugs is directed primarily not at preventing profits being made by suppliers but at trying to eliminate the dissemination of drugs in the community and that the object of undercover operations is to prevent such dissemination. Drugs supplied to an undercover police operative are not disseminated into the community.
20 It is not useful in the sentencing context of the present case to isolate or separate the element of the supplier's profit from the supply. If there be a case where the supply was not for the purpose of profit by the supplier that fact would have to be taken into account. The prevention of the dissemination of drugs into the community is intimately allied with the stern punishment of offenders. Without that, the prevention of supply and dissemination would be impossible of even partial achievement. Stern punishments are necessary, inter alia, because of the substantial profits to be made in supplying prohibited drugs. Suppliers take significant risks and seek to compensate themselves accordingly Underlying the whole drug supply industry and drug supply transactions and the reason they continue so strongly are the large profits to be made. New South Wales has legislation designed to ensure the offenders forfeit the profits which they have made from crime.
21 In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender.
22 The judge did not specify what discount he had in mind. Suffice it to say that I regard his general approach on the question of encouragement by undercover police operatives as incorrect in the circumstances of the present case.
23 The judge found that, in the absence of evidence from Chan himself, the court was limited to a finding that Chan was a recreational user of heroin in December 1995. By the end of 1996 Chan asserted that he was an addict. The judge accepted that by the end of 1996 Chan was a heavy user of heroin but that any connection between his drug usage and his involvement in the 1996 offences was marginal.
24 Chan attempted to explain the 1996 offences. He claimed that after his release on bail after being in custody for almost two months on the 1995 offences he was under considerable pressure to obtain money for his legal expenses. He told the probation officer that his foray back into heroin escalated to an addiction. These explanations did not take Chan very far.
25 Chan urged before the judge that his sentence on the 1996 offences should bear parity with that imposed on his wife. She had pleaded guilty to knowingly take part in the supply of not less than the commercial quantity of heroin. She was a co-offender with her husband, having assisted him in the Wiley Park flat to cut, mix, compress and prepare the heroin found on him. She was sentenced to a minimum term of two years three months with an additional term of one year and three months, a total of 3½ years.
26 The question of parity was discussed by the judge at some length. As to the Wiley Park offences of November 1996 the judge took the view that when the previous serious drug conviction of the wife and her consequent imprisonment was taken into account along with her plea of guilty at the committal proceedings and her lesser but nevertheless substantial involvement in the offence, Chan should be regarded as being at least equally culpable in relation to the first 1996 offence of supply. The judge balanced the factors in each instance in a broad way.
27 The judge recognised that the November-December 1996 offence of knowingly take part in the supply of 1231.2 grams of heroin was, standing alone, a very significant instance of criminality. He thought that the precise involvement of Chan was difficult to determine on the basis of the evidence available to the Crown but it was not marginal or peripheral and represented a substantial degree of culpability on his part. He appears to have been the recipient of many small packages of heroin from overseas and responsible for its distribution in Australia. Chan's wife was not charged with this offence.
28 The judge, after recording that the parity principles had been stressed by Chan, said that he did not regard those principles "as entirely governing the case".
29 As to the 1996 offences the judge said:
"On the second occasion … the method adopted, the degree of planning involved and the sheer volume of drugs involved over a period of time, suggest that this was what can properly be termed a major commercial enterprise."
30 The judge stated that the prisoner had to be sentenced in respect of two distinct rounds of offences, each being very serious. He also applied the principle of totality.
31 The judge took into account that Chan was a first offender, that he was born on 22 November 1955, that his wife was in gaol and not eligible for parole until May 1999, that he had three children apparently aged 19, 18 and 10 years by his first marriage, that his mother, who was over 70 years of age and said to be frail, had to look after these children and that he had another child aged 19 months to his third wife, his co-offender. This child was presumably with the mother, Chan's present wife. The judge gave some, but not much, weight to Chan's domestic circumstances, more particularly in relation to the question of special circumstances.
32 The judge noted that the appellant had not resisted the making of an assets forfeiture order and that this order involved the loss of a number of assets, the value of which was not specified but which included at least $100,000 in bank accounts, together with a 1993 model motor vehicle. He regarded this and his significant gaol terms as relevant on both public and private deterrence. The judge also thought that the loss of assets would provide an incentive for rehabilitation. Crime did not pay.
33 After imposing concurrent fixed term sentences of two years for the 1995 offences the judge as to the 1996 offences said:
"I propose the same overall sentence on those natters as was imposed on the prisoner's wife. I bear in mind … those features which would suggest the application of the parity principle as well as those which require an appropriate and relevant differential as between the two offenders. But it is significant that the sentences for the 1996 matters must be moulded on to the sentences for the 1995 matters. Again, the principle of totality has the practical effect of somewhat rounding down the appropriate overall sentence for the later offences."
The sentence imposed on the wife was no guide. She was not charged with the offence of knowingly take part in the supply of not less than a large commercial quantity of heroin.
34. The judge regarded the following as special circumstances in fixing the minimum and additional terms:
(a) the two months spent in custody - this relates to the 1995 offences.
(b) the sentences for the 1996 offences were cumulative on "quite substantial fixed term sentences for the 1995 offences"
(c) Chan's own use of heroin probably requiring further supervision than usual on his release from custody.
(d) The hardship to his family - this was stated not to be of major weight.
(e) The non-resistance to the assets forfeiture order.
35 The Crown contended that the judge had erred taking into account the hardship which Chan's family would suffer. R v C.T. Edwards (1996) 90 a Crim R and R v Day 1998) 100 A Crim R 275 at 279 established that before hardship to third parties can be taken into account it must be truly exceptional. Many full-time sentences impose hardship on third parties. The hardship in this case is not exceptional. Having regard to the age of the two older children it is less than in many other cases. Edwards and Day were cases where periodic detention was imposed rather than full-time custody where that was required. This Court in R v Byrne CCA 5 August 1998, unreported, followed Edwards and Day .
36 In Edwards at 515 Gleeson CJ said:
"… the practical consequences of an argument that a sentencing judge or magistrate should deal leniently with an offender because of the effect which punishment of the offender will have upon some third party are such that the courts have approached this subject with caution."