Tran v Regina

Judgment 1BATHURST CJ: I agree with Hoeben CJ at CL. 2HOEBEN CJ at CL: This matter came before the Court on 13 December 2013. Having heard argument, the Court granted leave to appeal against sentence but dismissed the appeal. The Court ordered that reasons would be given in due course. These are the reasons for the Court's decision. Offence and sentence 3The applicant pleaded guilty to supplying an indictable quantity of a prohibited drug, contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years and/or a fine of 2000 penalty units. The amount of drug concerned was 22.05 grams of crystal methylamphetamine. 4On 19 February 2013 in the District Court at Goulburn Toner DCJ sentenced the applicant to imprisonment for 19 months with a non-parole period of 14 months. His Honour determined that the sentence should commence on 19 December 2012, that the non-parole period would expire on 18 February 2014 and that the balance of term would expire on 18 July 2014. 5The applicant's sentence was made partially concurrent with the balance of parole for an offence of murder for which the applicant was sentenced on 3 May 2001 in the Supreme Court of New South Wales. That sentence was imprisonment for 13 years, to date from 29 December 1999 and which was to expire on 19 December 2012. There was a non-parole period of 8 years, which expired on 19 December 2007. 6It was common ground that the applicant was released to parole for the murder offence on a number of occasions and on each occasion parole was breached and the applicant was returned to custody. It was also common ground that the applicant's balance of parole expired on 20 March 2013. The sentencing judge was erroneously told that the balance of parole would expire on 16 April 2013. 7The applicant sought leave to appeal against the severity of his sentence on the following grounds: Ground 1 - The learned sentencing judge erred in failing to give sufficient concurrence between the balance of parole being served and the sentence imposed. Ground 2 - The learned sentencing judge had regard to an excessive quantum of drug in determining the appropriate sentence. Ground 3 - The learned sentencing judge erred in failing to have regard to the correct maximum penalty when imposing sentence. Ground 4 - The sentence is manifestly excessive. FACTUAL BACKGROUND 8At approximately 3am on 11 January 2011 police stopped a black Honda Civic in which the applicant was a front seat passenger. The driver of the vehicle was the applicant's wife. On searching the car, the police found a soft drink can in the centre console. Inside the soft drink can was a glass jar containing four bags of crystal methylamphetamine totalling 22.05 grams. 9When arrested, the applicant said that the crystal methylamphetamine was in his possession. During an ERISP conducted at Goulburn Police Station the applicant said that he was paid $500 to convey the drug from Cabramatta to Ngunnawal Leagues Club where he would be paid a further $500 upon delivery of the can to a third party. The purity of the drug was substantial, i.e., 81.5 percent. 10The Crown accepted that the role of the applicant was that of a courier. While his Honour was somewhat sceptical of that concession, he agreed to sentence the applicant on that basis. In relation to the objective seriousness of the offence, his Honour noted that the quantity of drug was 4 or 5 times the indictable quantity of 5 grams. There was no evidence before his Honour as to the street value or wholesale value of the drugs. 11In relation to the applicant's subjective case, the applicant was aged 30 at the time of the offence and 32 at the time of sentence. His Honour considered that the applicant's history was a sad one, having spent the whole of his adult life in custody. That was because he was a juvenile at the time that he committed the murder offence. 12When reciting the facts, the sentencing judge erroneously believed that the applicant's parole for the murder offence had been revoked because of the offence, the subject of this application. That was not correct. On 15 December 2011 the Parole Authority revoked the applicant's parole on the basis of a breach of condition 5 - fail to report to the officer as directed and condition 21 - which required the applicant to enter a residential rehabilitation centre. The applicant was not returned to custody in accordance with that revocation of parole until 11 January 2012. 13During two occasions that he had been released to parole, the applicant fathered two children, who at the time of sentence were aged 4 and 6 months. The applicant submitted that now that he was a father he had found a new sense of responsibility. His Honour rejected that submission because of his continued drug use on each occasion that he had been released to parole. His Honour was sceptical of the applicant's prospects of rehabilitation. 14His Honour did, however, allow the applicant a 25 percent discount for his plea of guilty. His Honour did not think there was any other discounting factor which he could take into account. His Honour declined to find special circumstances because in his opinion there were none. Because of the Crown's concession, however, his Honour sentenced the applicant as a courier whose position could be characterised as someone towards the bottom of the hierarchy of those involved in the criminal enterprise. His Honour noted that it would be impossible for such drug supply businesses to flourish without the contribution of persons such as the applicant. 15Because of his Honour's misunderstanding as to the reason why the applicant's parole was revoked, he determined that there should be a degree of concurrence between the sentence which he was going to impose and the balance of parole which was being served by the applicant. On the basis of his understanding that the parole period would expire on 16 April 2013, his Honour backdated the commencement of the sentence to 19 December 2012, i.e., there was a 4 month period of concurrency. Ground 1 - The learned sentencing judge erred in failing to give sufficient concurrence between the balance of parole being served and the sentence imposed. 16In the course of oral submissions, the applicant accepted that this ground of appeal was based on the same misunderstanding as that of the sentencing judge, i.e., that the reason for the revocation of parole was this offence. Because that was not the case, the applicant accepted that it was purely a discretionary matter for the sentencing judge as to how much concurrency (if any) he should allow between the sentence imposed for this offence and the applicant's balance of parole. Ground 2 - The learned sentencing judge had regard to an excessive quantum of drug in determining the appropriate sentence. 17The basis for this submission was that the sentencing judge had erroneously sentenced on the basis that the amount of the drug involved was 24.3 grams when in fact the quantity was 22.05 grams. In oral submissions the applicant accepted that in the absence of any other compelling ground of appeal, this discrepancy in fact finding was so minor as to not form a proper basis for interfering with the sentence imposed. Ground 3 - The learned sentencing judge erred in failing to have regard to the correct maximum penalty when imposing sentence. 18It was common ground that his Honour had erroneously sentenced on the basis that the maximum penalty for this offence was imprisonment for 18 years. As already indicated, the maximum penalty was in fact imprisonment for 15 years. The Crown accepted that this was a patent error, sufficient to justify the granting of leave to appeal against sentence. As such, the Crown accepted that s6(3) of the Criminal Appeal Act 1912 applied so that this Court needed to assess for itself whether in all the circumstances a lesser sentence should have been imposed. 19Because of this concession by the Crown, the applicant did not in terms pursue Ground 4. Rather he deployed the arguments which had been raised in relation to Ground 4 as reasons why a lesser sentence was warranted by law. 20That in fact became the substance of the argument made to the Court. 21The applicant submitted that he had in reality been in custody since 11 January 2012 as a result of this offending. He had spent his adult life in custody. He was a low level operative within the drug supply system, i.e. a courier. By reference to the statistics relating to this offence, 69 percent of offenders had received a non-parole period which was less than that imposed upon him. 22Finally, the applicant submitted that because his Honour had intended to make the sentence which he imposed concurrent with the applicant's balance of parole to the extent of 4 months, this Court should do the same. This would mean that the applicant's release date would come forward one month to 18 January 2014. 23The Crown submitted that no lesser sentence was warranted in law. This was because the sentence imposed was well within the range of sentences revealed by the statistics. Apart from his plea of guilty, there was no other mitigating factor associated with the applicant's offending. The finding that the applicant was a courier was a generous one as his Honour noted. The purity of the methylamphetamine was high (81.5 percent), which indicated that the drug had been intercepted before it had been broken down and prepared for street level sales. The findings made by the sentencing judge were appropriate and the sentence was consistent with them. 24The Crown submitted that when allowing 4 months concurrency in the applicant's favour between this sentence and his balance of parole, his Honour had been influenced by his incorrect understanding of what had led to the revocation of parole. The Crown submitted that this Court, being aware that the revocation of parole related purely to the applicant's drug taking and failure to adhere to parole conditions rather than this offence, should not be influenced by the level of concurrency found by his Honour. The Crown submitted that this offence and the revocation of parole had no relationship so that any degree of concurrency found by this Court would be generous towards the applicant. 25The applicant's subjective case and the objective features of his offending were fully reviewed by the sentencing judge. In doing so, the sentencing judge noted the seriousness of the offending and with some reservations accepted the Crown concession that the applicant was only a courier. There were no findings in mitigation and no realistic prospects of rehabilitation. The sentence was well within the range for an offence of this kind. 26Taking into account those matters in the re-sentencing exercise, I am not satisfied that any lesser sentence is warranted in law. It was for these reasons that the Court granted leave to appeal but dismissed the appeal. 27R A HULME J: The reasons set out in the judgment of Hoeben CJ at CL provide the basis for my agreement with the orders granting leave but dismissing the appeal.