Regina v Soo

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - ss 25, 33(3)

R v Walsh [2004] NSWCCA 435 CASES CITED: R v Goodwin (1990) 51 A Crim R 238 R v Fordham (1998) 98 A Crim R 359

V. Lydiard - Crown COUNSEL: R. Button - Applicant

S. Kavanagh - Crown SOLICITORS: S.E. O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2004/3047 CCAP

GROVE J HOWIE J LATHAM J

THURSDAY 28 APRIL 2005 REGINA v JOHN CHIH SOO Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: The applicant was convicted after a trial in the District Court of eight counts alleging offences under the Drug Misuse & Trafficking Act (the Act). The first count was one of supplying a large commercial quantity of methylamphetamine, contrary to ss 25 and 33(3) of the Act and in respect of which the maximum penalty is imprisonment for life. The fourth count alleged that the applicant on three separate occasions supplied methylamphetamine for financial reward. That is an offence contrary to s 25A of the Act and for which the maximum penalty of 20 years is prescribed. The five further counts each involved the supply of a particular type of drug. In counts three and five, the drug supplied was ecstasy. In the other three counts the drugs supplied were as follows: count 6 cannabis leaf; count seven, cocaine; and count eight, lysergide. In respect of the offences of supply, other than where the drug was cannabis, the maximum penalty is 15 years imprisonment. In respect of the offence of supplying cannabis leaf the maximum penalty was imprisonment for 10 years. 3 As a consequence of his conviction for these offences he was sentenced by Judge Woods QC (the Judge) as follows: Count 1: imprisonment for 10 years to date from 1 May 2004 with a non-parole period of 6 years to expire on 30 April 2010.

Count 3: imprisonment for 8 years to date from 31 October 2002 with a non-parole period of 7 years 6 months to expire on 30 April 2010.

Count 4: a fixed term of imprisonment of 6 years to date from 31 October 2002 and expiring on 20 October 2008.

Counts 5 to 9: a fixed term of imprisonment for 2 years 6 months to date from 31 October 2002 and expiring on 30 April 2005.

The overall sentence to be served by the applicant is one of 11 years and 6 months with an aggregate minimum period that the applicant has to serve before being released to parole of 7 years and 6 months. 4 In addition the Judge convicted the applicant of a related summary offence of goods in custody in respect of a quantity of cash found in a safe in the applicant's home. The applicant was sentenced for this offence to imprisonment for 6 months to date from 31 October 2002 and expiring on 30 April 2003. 5 The applicant contends that two of the sentences in particular and the total sentence generally are manifestly excessive. 6 The facts of the first count are that over a period between 30 July and 22 September 2002 police lawfully recorded phone calls during which the applicant was actively involved in supplying drugs. Further, on his arrest there was a quantity of methylamphetamine found in his motor vehicle and some in his house. By taking into account the amounts located and the quantities referred to in the telephone conversations the jury was satisfied that the applicant had been involved in the supply of a large commercial quantity over the period in the charge. The Judge sentenced the applicant on the basis of a global amount of the drug involved over the period charged rather than determining what amount was actually supplied by the applicant over that period. 7 The offence under s 25A of the Act related to supplies of methylamphetamine that took place between 14 October and 13 September 2002. These offences arose from the use of a police informant named Peter who was himself a drug dealer. The man Peter, while a listening device was attached to him, ordered specific amounts of drugs from the applicant in order to obtain evidence of the applicant's involvement in the supply of that drug. 8 The balance of the offences for which the applicant was convicted related to quantities of different types of drugs found in his premises on his arrest. 9 During the course of the trial the applicant did not dispute any evidence in the Crown's case but contended that he committed the offences whilst subject to duress from the police informant Peter claiming that he had made threats to the applicant's safety and that of his family if he did not supply him with the drugs he wanted. The applicant had also contended that in relation to the first count the Crown could not prove beyond reasonable doubt his involvement in the supply of a large commercial quantity. 10 Following is a summary of the facts taken from the Crown's submission to this Court:

a. The applicant was arrested on 21 September 2002.

b. Police found 107.7 grams of high-grade methylamphetamine in his car.

d. Large quantities of prohibited drugs were found including 612.84 grams of the same high-grade methylamphetamine.

e. A telephone intercept on the applicant's mobile phone service, during the seven weeks prior to his arrest, recorded conversations with 21 identified customers and several unidentified customers.

f. The applicant agreed to sell large quantities of methylamphetamine, ecstasy and cannabis to those customers.

g. The transactions, which could be identified as relating to the supply of methylamphetamine, were estimated by police to involve in excess of 680 grams.

h. Count 1 on the indictment was based on the possession of 719.91 grams of methylamphetamine and on his agreement to supply no less than 281 grams of the prohibited drug to various customers [1000.91 grams].

i. On 15 August 2002, the applicant supplied a registered informer "Pete" with forty tablets, which were represented as ecstasy tablets but which in fact contained no prohibited substance.

j. On 3 occasions (15 August, 5 September and 12 September 2002) the applicant supplied a registered informer "Pete" with a total of 71.8 grams of methylamphetamine powder and 25 tablets containing methylamphetamine for $11,150.00.

k. On 21 September 2002, when the applicant was arrested, he had in his possession the prohibited drugs, cannabis leaf, ecstasy (MDMA), lysergide, cocaine for the purpose of supply.

l. During the search of the applicant's apartment on 21 September 2002, police found $134,400.00 in cash in a safe, which the applicant opened by using a combination.

m. The police also found a large amount of property, which was suspected of being unlawfully obtained (either by being traded by customers for drugs or purchased with the proceeds of drug transactions). 11 The Judge sentenced the applicant on the basis that he was,

the principal of a drug selling operation acting directly and not through couriers or agents and having an established retinue of buyers as reflected in the evidence, most of whom paid cash as reflected in the contents of the safe, but who less frequently proffered goods for drugs.

The Judge took into account to "some indefinable extent" that the man Peter did influence the applicant but remarked, "there is a long gap between influence and duress". 12 The applicant was aged 35 years at the date of sentencing. He had no prior criminal record and there was little in evidence about his formative years of relevance to the task in sentencing him for the offences for which he was convicted. The applicant had completed his Higher School Certificate and had been enrolled in courses at TAFE and university without successfully completing them. He was generally in employment and at the time of offending was self-employed selling mobile telephones and repairing electrical equipment. He explained the offences to the officer from the Probation and Parole Service and a psychologist who prepared a report upon him for the purpose of sentencing in accordance with the evidence he gave at the trial, being that he traded in drugs because he was afraid of Peter. 13 The applicant maintained that he did not use illegal drugs to the probation officer and the psychologist. The psychologist reported that the applicant told her that "many of his friends use drugs and he could often see the negative effects drugs have on them". He also told her that he had lost a few friends through their drug usage. He was at a loss to explain the offence other than by reacting to threats by Peter and maintained that he was not acting for financial gain. 14 The psychologist reported that the applicant had been depressed for much of his life following the death of his father when the applicant was aged 11 years. He had often felt isolated and had suicidal ideas. He had not revealed the extent of his depression to his mother and had otherwise tried to protect her from being hurt by the truth. He had developed a personality that was dependent and "ill-equipped to deal with pressures and stress alone". He was also submissive and "subordinating his own needs to those of others". 15 The applicant wrote a letter to the Judge indicating his remorse and the actions he has taken while in custody to improve himself by undertaking courses. There was also in evidence a letter from the applicant's mother, from his fiancée and from his sister, in which she refers to the traumatic effect upon the applicant of the death of their father. There were testimonials tendered as to the applicant's character generally, his assistance to charities and his behaviour while in custody. 16 It is submitted on behalf of the applicant that the sentences imposed were manifestly excessive. Reliance is placed in support of that submission on the applicant's good character, the fact that Peter had some influence upon the applicant, that there was no hierarchy involved in the applicant's business of supplying drugs, and the inexplicable nature of the crimes. As to the last matter I do not understand why the court should search for reasons to explain the fact that the applicant took an opportunity that presented itself to involve himself in a lucrative business with high financial gains. The Judge was satisfied beyond reasonable doubt that at least $30,000 to $50,000 of the money in the safe in the applicant's home was a direct result of the supply of drugs. 17 It is submitted that the sentence for count 1 is at the top of the range. Accepting that this is so, it seems to me to be remarkable that, for an offence that carries life imprisonment, the top of the range of sentences imposed is 10 years imprisonment notwithstanding that there must be cases such as the present of offences being committed over a significant period of time in which a large commercial quantity of a dangerous drug is being supplied in the community for profit. In my view the sentence imposed as against the maximum penalties prescribed, bearing in mind that the applicant on his own admissions was not a user of drugs and that he was involved in an on-going business of supplying drugs was well justified. 18 It must be borne in mind that the applicant pleaded not guilty and, therefore, was entitled to no discount that might have followed a plea. His expressions of remorse have to been seen against the fact that he continued to maintain that he offended only because the man Peter had threatened him and his family. He never accepted full responsibility for his actions that, on the face of it, were merely those of a person motivated by greed. Although the Judge said that he was taking into account the applicant's contrition, I frankly do not understand the basis upon which any significant mitigation could be allowed for the fact that the applicant made some remarks to the effect that he was sorry for the offences notwithstanding that he was continuing to maintain that he only offended because of threats made to him and his family by Peter. Similarly it is difficult to see the basis for the Judge's view that the applicant was not likely to re-offend. 19 Even in an affidavit placed before this Court the applicant tempers his statements of remorse by the explanation that he was "very scared and paranoid at the time". 20 The applicant relies on the hearing of the appeal upon fresh evidence in the form of a psychiatric report and an affidavit from the applicant in which he now admits to having been using drugs at the time of the offence, a matter denied by him throughout the trial and the sentencing proceedings. It is submitted that, notwithstanding that there is nothing to indicate why the applicant was not psychiatrically examined prior to sentencing, the Court should receive the report because in the absence of that evidence a miscarriage of justice had occurred. 21 The applicant was convicted on 18 November 2003. The sentencing proceedings took place on various dates through February 2004 and the sentence was imposed on 1 March 2004. The applicant was legally represented during the course of the proceedings by an experienced barrister and a solicitor. A psychologist examined the applicant and prepared a report for the purpose of the sentencing proceeding. A significant amount of material was tendered on the applicant's behalf including a letter from the applicant in which he attempted to explain the circumstances of his offending. The applicant did not give evidence before the sentencing judge. He had of course given evidence during the trial and in respect to the related matter of goods in custody. 22 This is a case where those now appearing for the applicant in this Court have determined to seek to support the application by placing before this Court evidence that could have been placed before the sentencing judge. As I have indicated the applicant did not give evidence on sentence. He steadfastly maintained before those who examined him for the purposes of sentencing that he was not a user of drugs. No doubt that was a stance that supported his defence of duress on the basis that the only reason he became involved in the offences with which he was charged was because of the threats of the applicant. Now he wishes this Court to receive and take into account evidence that he was a user of drugs with the explanation that, "I now know that this affected my judgment and was one factor that led to my committing the offences". 23 The applicant relies upon statements I made, with the concurrence of Sully and Hidden JJ, in R v Walsh [2004] NSWCCA 435 as to the reception of fresh or new evidence on appeal where to exclude the evidence might result in a miscarriage of justice. I expressed the view that cases such as R v Goodwin (1990) 51 A Crim R 238 and R v Fordham (1998) 98 A Crim R 359, that refer to pre-conditions for the admissibility of new or fresh evidence on sentence appeals are merely examples of situations where the Court might find that a miscarriage will have occurred. However, those remarks were made in the context of an appeal against conviction and the pre-conditions that have been applied to the reception of evidence on sentence should not simply be ignored but apply with considerable force in the present case. 24 The applicant chose to conduct his defence both at the trial and on sentence as it seemed best for him at the time. As I have indicated, one can readily understand why the applicant chose to assert that he was not a drug user in light of the defence he ran at the trial and the stance he took on sentence, being that Peter pressured him into committing the offences. The psychiatrist in the report dated 4 April 2005, that is over 12 months after the sentencing proceedings, states that the applicant gave the following reasons for not revealing his drug usage:

He said that he denied personal drug abuse because he was too shamed of it. He thought that admitting drug abuse would be used against him in the legal proceedings and he may be charged with another offence. He said he had felty ashamed because he did not want his mother to know. His family did not even smoke or drink; drugs would have been seen by his family as totally unacceptable. He thought that if his mother knew she would 'die of shock' he went on to explain that his mother was 'really anxious, she worries a lot.

Of course these explanations have to be read in light of the fact that the applicant always admitted having drugs in his possession and supplying them for money and items of property. 25 In explanation for the obtaining of a psychiatric report for the purpose of this appeal, Mr Button indicated to the Court that, on the basis of a number of matters arising during the trial and the sentencing proceedings, it was thought that there could be some underlying psychiatric state that might account for the following: the applicant's involvement in the offences; for inconsistent evidence he gave during the trial and on the hearing for the related matter; what was described as bizarre aspects of the defence run by the applicant and some of the answers he gave during evidence; and matters raised in the psychiatric report. It was submitted that a miscarriage of justice would arise if the material contained in the psychiatric report were not placed before the Court as it contains some explanation for aspects of the case which otherwise were inexplicable and "the riddle" that counsel for the applicant saw arising from the material before the sentencing judge. 26 The simple fact is that the applicant has no credibility whatsoever and little faith could be placed upon anything that he might say to anybody about the circumstances of his offending. This includes the psychiatrist, who now suggests that the applicant might have been suffering from some form of mental illness at the time of the offences as a result of his history of drug taking. Much of the report is based upon assertion of facts concerning the offending that are inconsistent with the Crown evidence, the jury finding and the facts upon which the applicant was sentenced. The psychiatrist appreciated that the applicant might be fabricating his account of events and circumstances surrounding the offending but suggested reasons for him discounting that possibility. But the basis of the psychiatrist's opinion depends upon accounts of drug involvement and of his relationship with Peter that is inconsistent with the evidence given by the applicant during the trial and to those who examined him on sentence, and in respect of which there is no objective material to support it. 27 The Crown objected to the evidence as fresh evidence on the appeal and the Court rejected the tender of it. Although it is open for the Court to receive the evidence if it were called upon to re-sentence the applicant, I would not give it any weight. The applicant has the onus to prove that his mental state was such that it should mitigate the objective seriousness of the offence or otherwise impact upon the determination of the appropriate sentence. I am far from satisfied on the balance of probabilities that he was suffering from any relevant psychiatric condition at the time of the offending. There was nothing in the material before the sentencing judge that indicated that the applicant was labouring under some mental disability other than that contained in the psychological report. His Honour took into account that material and, in particular, the depressive state of the applicant since the death of his father. I appreciate that the Crown did not ultimately seek to cross-examine the applicant on the fresh evidence or the material in the psychiatric report, but that does not mean that the Court should adopt what he said to the psychiatrist as probably being true. 28 It was submitted that the sentence is too severe having regard to the fact that the applicant was of prior good character, the limited period of the offending, the "inexplicable nature of the crimes" and the finding by the Judge that the applicant was to some "indefinable degree influenced by Peter". It is difficult to understand what precisely his Honour meant by this last matter and to what extent he took it into account. Mr Button conceded that his Honour was not referring to the allegation that Peter had threatened the applicant nor was he intending to suggest any form of entrapment. There are many ways in which one person can influence another to commit a crime without in any way reducing the culpability of the offender. But even if in some way Peter did induce the applicant to engage in the conduct for which he was to be sentenced that would have little mitigation having regard to the fact that the applicant was supplying drugs generally for a period of about 2 months and not just to Peter. 29 I find nothing inexplicable about the offending even if it is accepted, as I do, that the applicant was not a drug user. He simply took advantage of a situation in which he found himself to make a considerable profit in selling drugs. The fact that the applicant had prior good character could not assist him greatly given the fact that he clearly entered into the business of supplying drugs albeit that he supplied directly to users and was not the head of a large supply network. At the time of his arrest he had been involved in the distribution of a drug totalling twice the prescribed amount that gave rise to a charge involving the supply of a large commercial quantity. 30 Mr Button conceded, quite rightly in my view, that the Judge was entitled to accumulate some of the sentences. However, the three supplies to Peter which were the basis of the offence contrary to s 25A in count 4 were part and parcel of the overall supply offence in count 1 and, to that degree the accumulation was unjustified. However count 1 was also cumulative as to 18 months with the sentences for the individual supply offences in counts 5 to 9. However, the amounts involved in those five counts were relatively small and the Crown relied upon the deeming provision to prove the charges of supply in each case. The criminality arising from the offence in count 1 is so serious, it being both possession of drugs and the actual supply of them on a regular basis, that the total criminality of the applicant's offending was very much to be found in that count. 31 Although I am not persuaded that the sentence on any of the counts was manifestly excessive, even though I acknowledge that the sentence for count 1 was at the high end of the range, it seems to me that the overall sentence should be reduced by making the sentence for the 25A offence concurrent with the first count and reducing the accumulation of count 1 on counts 5 to 9 to a period of six months. That would give a total sentence of 10 years 6 months. In reaching that view I have taken into account the fresh material not including the psychiatric report. I would find special circumstances for the reasons given by the sentencing judge. In order to achieve the desired result there will have to be a reduction in the non-parole periods for counts 1 and 4. The total sentence should be 10 years 6 months with a total minimum period of 6 years 6 months from 31 October 2002. 32 I propose the following orders:

1. Leave to appeal is granted and the appeal allowed in part.
2. The sentence for count 1 is confirmed but is to date from 30 April 2003. There is to be a non-parole period of 6 years to expire on 29 April 2009 the date upon which the applicant is eligible to be released to parole.
3. The sentence for count 4 is confirmed but is to date from 30 April 2003 with a non-parole period of 6 years to expire on 29 April 2009 the date upon which the applicant is eligible to be released to parole. 33 LATHAM J: I agree with Howie J.

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