REGINA v. CHONG [2003] NSWCCA 274

MONDAY 29 SEPTEMBER 2003 REGINA v. HARRY PIT SOEN CHONG Judgment 1 HIDDEN, J: I agree with Greg James, J. 2 GREG JAMES, J: This is an application for leave to appeal against a sentence imposed by his Honour Judge Maguire in the District Court of New South Wales on 23 January 2003 in respect of an offence under s.25(1) of the Drug (Misuse & Trafficking) Act 1985 of supply prohibited drug, to wit, ecstasy, committed by the applicant on 16 August 2002. 3 The offence was punishable by a maximum penalty of 15 years imprisonment and/or a fine of $200,000. 4 The applicant had adhered before his Honour on 23 January 2003 to the plea of guilty he had entered before a magistrate on 16 August 2002 pursuant to s.51A of the Justice Act 1902. 5 The applicant came forward at the time of sentence aged 56 years, having been born on 8 October 1946. He had been fined on 16 July 2002 at the Downing Centre Local Court $300 for possessing a prohibited drug and on 18 February 2003 had been fined $50 at the Central Local Court for using a vehicle which did not comply with the standard. 6 The learned trial judge imposed upon him a sentence of imprisonment for three years to date from the imposition of that sentence on 23 January 2003 with a non-parole period of two years to commence the same date. 7 The applicant had been on bail from the day following his arrest, but had been subject to stringent conditions requiring reporting three times per week and to continue to reside at his home premises. 8 His Honour referred to the statement of facts in his remarks on sentence. I take the following statement from his Honour's reference to those matters:- "At 1.20 am on Thursday 16 August 2002, police observed the defendant leaving the premises at 110 Cathedral Street, Woolloomooloo with two other male persons. The defendant, in the company of these two males, entered into vehicle KOS-00N, a black coloured Nissan Skyline sedan, which was parked and unattended upon the southern kerb of Cathedral Street approximately 10 metres east of the intersection of Riley Street, Woolloomooloo. Upon reaching the intersection of William Lane, police stopped the defendant and subjected him to a roadside breath test, which proved negative. He then produced his New South Wales driver's licence number 3493 LX and as a consequence, a routine check was made upon the defendant's vehicle and his licence. Certain information was received from police radio. As a result, the defendant and his two male passengers were removed from the vehicle and searched. When the defendant's person was searched, police located an amount of Australian currency in the left hand pocket of his cargo trousers. This amount of cash totalled $4,050 (81 x $50). A further amount of Australian currency was located within the defendant's wallet. This amount of cash totalled $790 (4 x $100, 5 x $50, 6 x $20, 1 x $10, 2 x $5). The defendant was then cautioned regarding the money. He informed police the cash was winning proceeds on poker machines at the Star City Casino. The police then searched the defendant's vehicle. Located in the front off-side driver's floor mat was four plastic resealable bags containing a total of 92 tablets of varying colours. The defendant was cautioned in relation to the tablets to which the defendant then identified the tablets as being ecstasy. The tablets were then photographed in situ. The defendant was arrested and conveyed to the Kings Cross Police Station and placed into the holding cell. He was then given a s.10A which was explained to him. At 2.20 am the defendant was removed from the holding cell and witnesses the weighing of the tablets (27.80 grams). The drugs were placed in drug bag number B199196. The defendant was given the opportunity to complete a handwritten statement or participate in an electronic interview. At 4.12 am the defendant was subjected to an electronic interview to which he made certain admissions. The defendant admitted using ecstasy for the past 12 months. The defendant advised the police he'd purchased 'two thousand something' dollars worth of ecstasy tablets from an Indonesian male known only as Abdul in the disco section of the Star City Casino. The defendant advised police the cost of each tablet was worth '$25 each' for 'around about 80 tablets'. When questioned regarding the Australian currency, the defendant stated 'I won $10,400 the night before' (15/8/02), on the poker machines and then 'some more at the casino tonight' (16/8/02). When asked the purpose of his buying the ecstasy tablets, the defendant informed police 'You don't usually hear the music at the disco' and to share with his friends in the Double Bay region. At 4.35 am the electronic interview was terminated and adopted by Sergeant Purvis." 9 His Honour concluded that the applicant's early plea of guilty should attract substantial consideration for its utilitarian value, but did not quantify that consideration. His Honour noted that the offender was caught with the drugs in his possession but made immediate admissions. He referred to a probation report tendered in evidence disclosing that the prisoner was then a single man aged 54 who had, except for the matters to which I have referred, a clear criminal history. He had been maintaining good relations with his ex-wife and his two daughters, but had become a persistent gambler, frequenting Star City Casino were he had, on occasions, gambled his entire weekly income. His Honour referred to the conclusion of the Probation and Parole Officer that the applicant was addicted to gambling, but noted that the appellant had been substantially employed over many years.

10 On his arrest, the applicant had been found in possession of a considerable amount of money. Records produced from the Star City Casino in answer to subpoena confirmed that his account that he had obtained the money from winnings at the Casino was consistent with the Casino's records. As to that, however, his Honour said this:- "However, these records do not disclose how much money was invested, and accordingly it is impossible to calculate whether the prisoner was a net winner. There is a truly remarkable coincidence between the frequency of those involved with drugs who also have in their possession large sums of money, the proceeds of successful gambling activities. I do not make any finding as to this aspect, I simply note that those who are involved with drugs seem to be lucky gamblers." 11 At this portion of his remarks on sentence, his Honour does not relate his observations to the particular case of this applicant, although his Honour goes on later to say that he was sceptical of the prisoner's account as given in the record of interview and would not automatically accept what he told the police was a reliable account. His Honour then adverted to the fact that the applicant did not give evidence and concluded:- "However, I am entirely unconvinced as to the accuracy of all that he told the police." 12 His Honour then referred to the applicant's account that he had purchased the ecstasy tablets from funds supplied by friends who were to use the drug at a party and expressed the view that the applicant had been at pains to minimise his own drug use in what he told the police. His Honour said in this regard:- "I am not prepared to accept that the prisoner simply purchased the ecstasy tablets for some $2,000 with a view to simply handing them over to friends at a party on a non-commercial basis." 13 This, of course, was not a positive conclusion of any involvement in substantial commercial activity, nor does his Honour later come to such a conclusion. 14 His Honour then adverted to frequent statements of the Court of Criminal Appeal that custodial sentences are normally required whether or not a profit has been obtained for "trafficking alone in any substantial degree". He said:- "Sentences involving substantial deterrence are to be imposed on drug traffickers, and only in exceptional circumstances would a non-custodial sentence be appropriate. I hold no doubt that the prisoner obtained the drugs for the purposes of supply and for the purpose of reward, albeit there is no evidence by which I could accurately gauge the financial benefit to him. 15 His Honour said of the applicant:- "I do not regard the prisoner as a Mr. Big in the drug supply scene, but nevertheless he was engaged in supplying some 92 tablets or thereabouts, involving some 27.5 grams, many times the trafficable quantity." 16 He adverted to whether right thinking members of the community were justifiably frustrated and angered by a seeming impunity enjoyed by those who supply drugs and that when such persons were successfully prosecuted there should be a "meaningful price to pay". He expressed the view that "some other would be Mr. Chong will be deterred when news of this sentence is published". However, his Honour concluded that special circumstances lying in the prisoner's age and his not having previously served a sentence existed warranting a variation of the non-parole to parole period ratio. Presumably by this, his Honour was referring to an extension to the parole period such as would arise by reason of the variation of the ratio between the non-parole period and the head sentence. His Honour did impose a non-parole period of two years in respect of the sentence he imposed of three years expressed to be a significant, if not substantial, reduction below the normal statutory proportion. Regrettably, his Honour failed to make an order under s.50 of the Crimes (Sentencing Procedure) Act 1999 directing that the applicant be released to parole at the expiration of the non-parole period. 17 It will be necessary whatever otherwise might be the outcome of the appeal for such an order to be made. 18 One ground of appeal was articulated in support of the appeal. That ground was:- "The sentencing judge erred in respect of the proportion between the non-parole period and the head sentence." 19 For my own part, I find such a ground difficult to understand. In Regina v. Simpson (2001) 126 A. Crim. R. 525, this court constituted by five judges examined the principles underlying the fixing of non-parole periods as they had existed under various sentencing regimes in New South Wales. Subsequently to Simpson (supra), the legislation with which Simpson (supra) was concerned has been amended. A new s.44 has been provided which requires the court to first set a non-parole period for the sentence and then refer to the balance of the term of the sentence. That provision applies to all offences committed on or after 1 February 2003. 20 Its predecessor applicable to the circumstances of this applicant's offence required the court:- "(a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence)." 21 By s.44(2) it is provided that the non-parole period must not be less than three-quarters of the term of the sentence unless the court decides there are special circumstances for it being less. No provision was made by the statute to the extent to which the non-parole period may be less or for any particular proportion for the non-parole period to the entire sentence to be observed once special circumstances had been found. 22 The nature of the relationship between the non-parole period and the total term once special circumstances have been found, is governed by the general principles of sentencing law including those relating to the nature and purpose of parole: Regina v. GDR (1994) 35 NSWLR 376. It is important to note that an appropriate non-parole period in a given case whilst reflecting the considerations appropriate to the fixing of sentence generally: see Bugmy v. The Queen (1990) 169 CLR 525, must be fixed having regard to the different purpose for the two parts of the sentence: Bugmy (supra) at 531 and be referrable to all the relevant considerations applicable in the particular case. 23 Thus, those matters which operate as factors in the synthesis may be reflected differently when weighed from the point of view of the fixing of a head sentence to when weighed from the point of view of fixing a non-parole period. But, as the review of the authorities to be found in the judgment of the Chief Justice in Simpson (supra) shows the non-parole period remains the minimum period of imprisonment which the offender must serve before being given the benefit of mitigation of punishment by the prospect of being released on conditional liberty: see Power v. The Queen (1973) 131 CLR 623 having regard to all the circumstances. 24 As that review of the authorities makes clear, rehabilitation still remains an important factor, particularly when coming to fix an appropriate non-parole period. 25 In my view the concern on this appeal is not as to some legal error in expressing the proportion of the non-parole period to the overall sentence arising from the fixing of the individual non-parole period, but whether or not the sentence or the non-parole period, having regard to all relevant considerations, are inappropriate to the crime of the offender and the offender's circumstances such that appellate intervention under s.6(3) of the Criminal Appeal Act 1912 is called for. 26 The particular circumstances of a case may mean a longer non-parole period and thus a shorter parole period or visa versa may need to be imposed. It may be that because of the statutory proportion, the fixing of a head sentence in the absence of special circumstances will mean that the non-parole period is defined by the statute. But once special circumstances are found, then it is for the trial judge consistent with the general principles and the exercise of a proper discretion to consider in the circumstances of the particular offender and the particular case what is, having regard to the importance of such matters as rehabilitation and objective seriousness, the minimum period of imprisonment an offender should serve for the particular crime and in compliance s.44, to do that (as that section stood at that time) in the context of having first focused on the length of the head sentence. 27 It can be seen that in an individual case all this may involve a delicate balance to ensure that the components of a proper sentence and non-parole period all rightly observe the relevant requirements, having regard to the important circumstances of the individual case. 28 It was contended in oral argument, that the trial judge had failed to consider whether other circumstances to those to which he had referred, that is, the prior clean record and age of the appellant, merited a reduction of the non-parole period. In particular, it was argued that his Honour had erred in appearing to consider the evidence concerning the applicant's winnings as not sufficient to displace any suggestion of any substantial commercial benefit from this sale on his part. After all, the 92 tablets of ecstasy had not been sold. Apparently his Honour was seeking to consider that commercial activity of a substantial kind would be undertaken by the supply of the 92 tablets. 29 Reference was made to the statistics from the Judicial Commission which indicated that a non-parole period was at the top of the range for such offences as this on a plea of guilty and that this applicant was entitled to the full utilitarian discount for the plea and his prior good character. 30 It was submitted that the evidence showed the applicant did not appreciate the seriousness of his offence and particular regard was paid to the Probation and Parole Officer's report which seemed to accept that the applicant was upset at being treated like a criminal and did not appear to acknowledge or understand the illegality of his actions. It was submitted that it was clear the applicant would find the experience of imprisonment more onerous than the average offender, although it appears to me that this is the matter to which his Honour was adverting when he referred to the combination of the applicant's age and this being his first sentence. 31 It was put that the issues relating to drug use and gambling addiction plainly required in the community's interest a longer than usual term to facilitate rehabilitation. 32 On behalf of the Crown, it was submitted his Honour adverted to those matters and that all the circumstances of the case required an appropriate minimum term of incarceration. It was submitted that the period fixed by his Honour, notwithstanding that it was at the top of the range and that this was plainly a case in which the circumstances might have mitigated towards a non-parole period somewhat less, nonetheless this non-parole period fell within the range of an appropriate exercise of discretion such that no error of the kind referred to in House v. The King (1936) 55 CLR 499 existed. 33 I am unable to accept that submission. Once one accepts that it is not a matter of retaining some relationship by way of externally prescribed ratio based on considerations of how long each of the components of a valid sentence should be in relation to the other, once special circumstances are found and once one accepts that the appropriate course is to impose a non-parole period which is the minimum period the offender should spend incarcerated before having an opportunity (which might come at any time or not come at all until the end of the sentence) to be released on conditional supervised liberty, the focus of the enquiry in an appeal such as this will be on whether the non-parole period, having regard to all the relevant circumstances, fell within the range of the proper exercise of a discretion which was required to focus on the length of that minium period not the proportion the non-parole period bore to the head sentence. His Honour recognised this was a case for a reduced non-parole period. He did not advert to any considerations other than the offender's first time in custody and age as warranting the reduction of the non-parole period from the statutory proportion to the two years non-parole period he imposed. He appears to have approached the task by seeking to vary the usually pre-determined ratio rather than by seeking to find that minimum period to which I have referred. 34 In my view, the non-parole period failed to have regard to all relevant factors mitigating that period and which it was appropriate be taken into account to determine what was an appropriate non-parole period. Such a period would, in my view, have provided for a longer parole period which would have met the need in this case for a longer period to be available for the offender's rehabilitation and opportunity to be released. But that is incidental except insofar as the length of that period bears upon how long the non-parole period should be. 35 In my view, a non-parole period of 18 months would, taking all relevant matters into account, have been appropriate as the minimum period in all the circumstances the offender should serve. I therefore consider that the matters meeting the necessary criteria in s.6(3) have been made out. 36 For these reasons, I would propose that leave to appeal be granted; the appeal allowed; the sentence confirmed; the non-parole period imposed be quashed; and a non-parole period of 18 months be imposed to commence on 22 January 2003 and to expire on 21 July 2004 should be imposed and a direction should be given that the applicant be released to parole on the expiration of that non-parole period, but that it be recommended that he be subject to the supervision of the Probation and Parole Service and a requirement that he obey all reasonable directions of that Service including, in particular, directions concerning his gambling and drug use. 37 NEWMAN, AJ: I agree with Greg James, J. **********

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