WU v R

COUNSEL: Applicant: D Carroll Respondent: PM Miller

SOLICITORS: Applicant: S O'Connor Respondent: S Kavanagh

• 1 - IN THE COURT OF CRIMINAL APPEAL 2009/5535

McCLELLAN CJ at CL R S HULME J DAVIES J

Tuesday, 7 December 2010 Tianhao Roy WU v REGINA Judgment 1 McCLELLAN CJ AT CL: I agree with RS Hulme J. 2 RS HULME J: On 3 July 2009 this Applicant for leave to appeal was sentenced by Williams DCJ in respect of 3 offences. The offences and the sentences imposed were:- (i) On 21 December 2007, the supply of a commercial quantity of a prohibited drug, viz. 32.4 grams of Nexus - imprisonment for a period of 6 years, including a non-parole period of 4 years both periods commencing on 21 December 2007;

(ii) On 21 December 2007, the supply of a large commercial quantity of a prohibited drug, viz. 137.4 grams of Nexus - imprisonment for a period of 9 years, including a non-parole period of 6 years both periods commencing on 21 December 2008; (iii) Between 13 November and 21 December 2007, the supply of a large commercial quantity of a prohibited drug, viz. Nexus - imprisonment for a period of 9 years, including a non-parole period of 6 years both periods commencing on 21 December 2008. 3 The effective sentence thus imposed consisted of a full term of 10 years including a non-parole period of 7 years. 4 Pursuant to s 25(2) and s 33 of the Drug Misuse and Trafficking Act 1985, the first of his offences rendered the Applicant liable to imprisonment for 20 years and the second and third to imprisonment for life. Standard non-parole periods of 10 years and 15 years respectively are prescribed for the offences. 5 In arriving at the sentence imposed for one of the offences, his Honour took into account an offence of dealing with $3,770 being proceeds of crime. His Honour did not specify in relation to what offence he took this matter into account. The Form 1 itself specified it was to be taken into account with the offence of "Supply large commercial quantity of prohibited drug (H32495738/06)". The charge bearing that number was the charge that related to the supply of a commercial quantity. 6 Nexus, the formal name of which is 4-bromo-2,5-dimethoxy-phenethylamine is a drug that apparently has effects similar to, but less than LSD. 7 Schedule 1 to the Drug Misuse and Trafficking Act, provides that a commercial quantity of Nexus is 25 grams or more and a large commercial quantity is an amount in excess of 100 grams. By comparison, the specified commercial and large commercial quantities of MDMA (ecstasy) are 125 grams and 500 grams and of LSD are 0.5 and 2 grams. 8 The second of the offences was the result of police finding 600 tablets of the stated weight in the Applicant's bedroom. At the same time police found the money the subject of the offence taken into account. 9 Later that same day police executed a search warrant at the premises of the Applicant's girlfriend, finding there some 130 Nexus tablets of the weight stated in the first charge. In an affidavit sworn on 1 April 2009, the Applicant asserted that those tablets and a jacket found adjacent to them were his and not his girlfriend's. 10 During the period between 13 November and 21 December 2007, police had been monitoring 4 telephone numbers used by the Applicant. A Facts Sheet tendered during the sentencing hearing asserted that during the period of surveillance the Applicant entered into numerous agreements to supply people with Nexus, agreements that, in totality, contemplated the supply of more than the large commercial quantity. This conduct was the subject of the third count and transcripts of 23 of the intercepted telephone calls were also in evidence. Because of the argument advanced in support of one of the grounds of appeal, it is desirable to provide a little detail concerning these calls. 11 Four of those calls related to purchase by the Applicant from a person called "Monkey". On 14 November Monkey informed the Applicant that he had only 4,500 of the "green ones" left, that the price to the Applicant was "7", and that he also had 4000 "red ones". Monkey also said to the Applicant "Make up your mind" and "be quick". In a call on 23 November, the Applicant indicated he wanted to pick up 500 "now" and the 2 agreed to meet. On 26 November there was discussion about the Applicant purchasing another 500 or 1000 tablets. In a call on 30 November the Applicant indicated that he wanted 1000 "pink ones" and the two agreed to meet that night. 12 Most of the calls related to supply by the Applicant. In all the total number of pills talked about in these calls was in excess of 3000 although one could not infer that there were agreements to supply or offers to supply these numbers. However, the tenor of the calls was that the Applicant could supply the numbers talked about. Many of the calls contemplated that supply would occur on the same day. Examples of such calls were the following 13 On 5 December someone named Peter asked the Applicant if he was in the city and when the Applicant indicated he was, Peter asked, "Can I take (ind) 60?" The Applicant told Peter to come to Ultimo and Peter said he would give the Applicant a call when he was there. In another call, on 7 December, Peter asks the Applicant, "Can you get me 60?" The Applicant said, "yes", and they agreed that the Applicant would give Peter a call when the Applicant was ready. 14 On 8 December the Applicant spoke to a Mr Xiao Li. There was an arrangement to meet in the immediate future. The conversation then included:- Applicant "Should I get 5 for you?" XL "Ah, that's about right. Applicant "50. Alright?" XL "That's enough. That's enough." 15 On 12 December a person named Patrick informed the Applicant that someone wanted 1500. There was then discussion about price. Patrick said he would "take them the price" and see the Applicant on Friday night. 16 These latter calls occurred during the period 14 November and 12 December 2007. The dates and tenor of those transcripts leads to the conclusion that the tablets found by the police were in addition to those the subject of these discussions and agreements. The number of tablets the supply of which by the Applicant was discussed in those calls exceeded 3000. It is also apparent that some of the supply contemplated in the calls was in wholesale quantities varying between 200 and 1500 tablets. 17 The Facts Sheet also suggested that the average street value of the tablets was $30.

18 The Applicant was born in January 1989. He gave evidence that his father died in 1995 after which he and his mother left China, finally settling in Australia in 2001. He completed first year accounting at University at the end of 2007 and has had some casual employment. There were only his mother and himself in the family and his mother supported both. The Applicant gave evidence that he dealt in the drugs to support himself and so that he would not need to ask his mother for money. The Applicant said that he was buying the drugs in lots of 500 at $7 or $7.50 a tablet and selling them for about $11 each. That selling price was so that his friends to whom he sold the drugs could re-sell the drugs at a profit. 19 Asked during the sentencing proceedings what he thought the drugs were, he replied, "Just party drugs, like ecstasy." He also gave evidence that he did not know what the drugs in fact were but he knew they were prohibited drugs. He said that in prison he had had been exposed to persons who have had a drug problem and now realises that drugs break up families and cause a lot of pain and will not again be involved in selling them. 20 The Applicant does have a criminal record. He was charged in October 2005 with robbery in company and placed on probation. In January 2007 he was charged with being in possession of a false instrument with intent to use it and of goods in custody. For these offences he was given two s 9 bonds of 18 months duration. It seems likely that these bonds were imposed in October 2007 but in any event it is clear he was subject to these bonds at the time of the offences with which Williams DCJ had to deal. On 15 December 2007 the Applicant was also charged with having custody of a knife in a public place and was on bail at the time of 2 of the offences with which this Court is concerned and for part of the time during which he was committing the third. 21 Williams DCJ concluded that the Applicant was entitled to a maximum discount for his plea and accepted the Applicant's expressions of contrition and remorse. His Honour accepted that the Applicant had good prospects for rehabilitation. Since being incarcerated he has put his time in prison to good use and is well on the way to qualifying as a boilermaker. 22 The grounds of appeal are:- (i) His Honour erred in the application of the totality principle in failing to make all sentences concurrent; and (ii) The sentence is manifestly excessive. Ground 1

23 In the course of his remarks, William DCJ observed:- Mr Wu has engaged in a course of criminal conduct that has resulted in him being charged with two discrete offences as well as an offence arising out of the whole of his conduct. 24 It was submitted that the third count - the submission referred to the second but the tenor of what was said was directed to the third - thus captured the whole of the Applicant's offending. It was submitted furthermore that the product found by the police was the result of the Applicant's dealing the subject of the third count and accordingly no additional sentence for possession should have been imposed. There was, so it was said, no reason to treat the drugs found at the Applicant's girlfriend's home separately from the others and impose effectively an additional penalty by way of partial accumulation of that sentence. 25 In context, it does not seem to me that the remark of the sentencing judge I have quoted was accurate. The Applicant was charged with, and pleaded guilty to, 3 offences. Those facts make it too late to say that he only committed one. It is obvious that the third count was directed, and must have been understood as directed, to the extensive supply operation in which the Applicant had been engaged during the period between 13 November and 21 December and not so as to also embrace the deemed supply of the drugs found in his possession on 21 December. Had the Applicant wished to contend that the offending the subject of the first and second counts was encompassed within the third count, the time to say so was prior to pleading guilty to all 3 counts. 26 That is not to say that the possession the subject of the first and second counts could not have been encompassed within the third. However, if it had been, the sentencing judge would have had to recognise that the quantity of drugs involved in that count was larger than contemplated by the third count when considered in light of the other 2. That circumstance makes it clear that, if the whole of the Applicant's offending had been encompassed within the third count, a higher sentence may well have been imposed for that count than was in fact ordered. 27 Nor is it of any relevance that the tablets found on 21 December may have been part of those the subject of phone calls with Monkey. The charges against the Applicant were concerned with supply, of possession for supply, not with purchase of the tablets. 28 Quantity is a very relevant factor in sentencing for drug offences. When one offender is charged with a number of counts, each relating to a different parcel of drugs, prima facie, sentences at least partially accumulated are called for. Indeed, the Applicant was fortunate that, in addition to the accumulation between the sentence imposed on count 1 and the other counts, there was not also accumulation between the sentences imposed on counts 2 and 3. This ground fails. Ground 2

29 In support of this ground attention was directed to a number of matters. One was the low purity of the drug, it being submitted that, given that quantity is given paramount importance in the legislation, the issue of purity was required to be given detailed consideration. The Court's attention was directed to the remarks of the Court in R v Blair [2005] NSWCCA 78 at [56]. Other factors were the absence of any significant organisation and the limited profit the Applicant stood to make, the Applicant's position being contrasted with many cases of large commercial quantities where hundreds of thousands of dollars are involved. Reference was made to his Honour's remarks to the effect that, "The maximum penalty for the amount of drugs in question is in my view out of all proportion to their value …"

30 There is no doubt that in some cases purity is important but that is particularly so when the drugs are of a nature such that the purity can be reduced so as to provide more doses and commonly greater profit. Drugs in powder form such as heroin and cocaine commonly fall into this category. However, when the drug is of a nature that it is commonly sold in tablet form, of sufficient strength to be of merchantable quality, and with a view to being consumed without further dilution the purity does not seem to me to be of such great significance. It is by no means unlikely that when Parliament enacted Schedule 1 to the Drug Misuse and Trafficking Act, it was aware of the forms in which various drugs were commonly sold and that the specification of quantities reflected to some extent these sorts of considerations. It is clear from the extent of the Applicant's activities that what he was selling was regarded by his customers as of merchantable quality, and in those circumstances, I do not regard the purity of the drugs in this case as of significant materiality. 31 It is true that the Applicant did not have any significant organisation. He did not need one. He had "Monkey" from whom he purchased the tablets. He himself was both a retail and wholesale supplier with some customers who were willing to purchase lots of hundreds of tablets at a time. Certainly, the creation of an organisation has in many cases been seen as an aggravating feature but its absence in this case does not argue strongly for leniency. 32 The fact that the Applicant's motive was simply to make money is an aggravating factor although the limited profit that the nature of the Applicant's operation seems to have entailed is also relevant and tends to argue for a lower place in the scale of objective gravity and penalty than in many cases of commercial and large commercial quantities. 33 Reliance was also placed on the Applicant's youth and the Court was referred to remarks in R v Hearne (2001) 124 A Crim R 451 at [25] and KT v R (2008) 182 A Crim R 571 at [22] et seq. 34 It is not necessary that I quote these passages. It was pointed out that in the case of young offenders, considerations of general deterrence and retribution are generally of less significance than in the case of older offenders and considerations of rehabilitation of greater weight. However, the point was also made that the rationale for this difference in approach is largely the immaturity of youth and that the changed emphasis is liable to be appreciably moderated when a young offender has conducted himself as an adult would. 35 At the time of offending the Applicant was nearly 19. He had finished or was a long way through his first year accounting at university. It can be inferred he is not unintelligent. He knew what he was doing was illegal. He did it for the financial benefits the dealing provided. Furthermore, prior to any of the offending charged the Applicant had been placed on probation and in October 2007, i.e. in the midst of the offending, the Applicant had entered into two s 9 bonds, terms of which would have included that the Applicant be of good behaviour. In these circumstances, while it is appropriate to make some allowance for the Applicant's age, it is difficult to see that immaturity had any great part to play in his offending.

36 The Court was also referred to the Judicial Commission statistics and the decisions in 4 cases. There are no statistics for Nexus and only one for the supply of a large commercial quantity of LSD when the offence was subject of a standard non-parole period. The full term of the sentence imposed in that case was 18 years. For the supply of a commercial quantity of ecstasy when the offence was subject to a standard non-parole period the statistics for non-consecutive terms and offenders who pleaded guilty cover 39 offenders. The highest sentence imposed was 9 years and the highest non-parole period 4 years and 6 months. The median terms were 4 years and 2 years respectively 37 In the case of a large commercial quantity, the comparable statistics refer to 34 cases and show that the highest full term was 18 years and the highest non-parole period 10 years. The median terms were 8 years and either 4 years and 6 months or 5 years. Of course, the statistics reveal virtually nothing about the circumstances of the offences included in them and as I have previously remarked with the concurrence of some of the other members of this Court - see R v Sciberras [2006] NSWCCA 268 at [56] and the cases there cited - seem to display systemic leniency in this area.

38 In Pham v R [2009] NSWCCA 25, one of the cases to which reference was made, the offender was convicted by a jury of being knowingly involved in the supply of 300 kg. of pseudoephedrine. He was sentenced to imprisonment for a non-parole period of 7 years and 6 months with a balance of term of 2 years and 6 months. Latham J with the concurrence of the other members of the Court accepted the sentencing judge's description of the offender as "significant to the enterprise" observing that, in light of the large amount of the drug involved, the sentence was lenient.

39 In Stojkov v R [2007] NSWCCA 205, another of the cases referred to, this Court refused to interfere on parity grounds with a sentence of 7 years including a non-parole period of 5 years and 3 months on an offender who, in May 2000, played a major part in the supply of a large commercial quantity, viz. 1.789 kgs. of 63% pure heroin. Although there was no express complaint that the sentence was manifestly excessive, Mathews J, with the concurrence of Tobias JA and Latham J, observed that the sentence was well within the available range. A large commercial quantity of heroin is 1 kg. or more.

40 The other cases referred to were decisions in the District Court, viz. R v Mordaunt [2009] NSWDC 301 and R v Duc Phan [2009] NSWDC 181. However, for reasons that will become apparent I do not find it necessary to refer further to these cases. 41 Certainly by comparison with the sentences imposed in Pham v R and Stojkov v R the sentence imposed on the Applicant seems unduly high. However, these and the District Court cases referred to are but 4 of dozens if not hundreds of cases to which reference could be made. Of more significance are cases in this Court where there has been a considered review of a number of decisions. Included in that group are R v Sciberras [2006] NSWCCA 268 and R v Wang [2009] NSWCCA 223. I had occasion to review these last mentioned cases recently in R v Mahmud [2010] NSWCCA 219 where this Court increased to 9 years including a non-parole period of 6 years and 6 months the sentence imposed for an offence of the deemed supply of almost double the large commercial quantity of low purity methylamphetamine. In R v Sciberras the Court increased to 8 years including a non-parole period of 6 years a sentence imposed for the supply of almost double the minimum quantity of methylamphetamine and increased to 8 years including a non-parole period of 5 years a sentence for the supply of 1.4 times the minimum commercial quantity of ecstasy. The offender was a professional drug dealer motivated by the need to feed his and his partner's addiction and the sentences reflected the leniency then usual in Crown appeals. 42 The Applicant's offence the subject of the first count involved a quantity about 25% above the minimum commercial quantity. The offence the subject of the second count involved a quantity about 37% above the minimum large commercial quantity. The precise quantity the subject of the third count is unknown but one might reasonably conclude to the requisite standard that it was not less than 1000 tablets. Proportioned to the weight of the 600 tablets found in the Applicant's possession, the weight of 1000 tablets would be over 220 grams but even if significantly over, it is clear that in terms of quantity, each of the Applicant's offences fell towards the bottom of the range of offences within their respective classes. As his Honour remarked the Applicant's reward was small compared with that derived by many offenders who come before the Courts. On the other hand, the Applicant's role and his motivation both argue for his offences being judged to be higher rather than lower on the scale of objective seriousness. 43 His Honour's only finding in this regard was that:- "In the absence of evidence about the drug's prevalence, its nature and its effects, I am not prepared to find that these offences fall within a mid range of objective seriousness having regard to what the court said in Way's case and how that is to be assessed. 44 Such a finding does not include anything like the guidance that this Court has said on many occasions is required of sentencing judges - see R v Knight and Biuvanua [2007] NSWCCA 283 at [4], [39]; R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [25], [39]; R v Woods [2009] NSWCCA 55 at [35]; R v McEvoy [2010] NSWCCA 110 at [75]; R v Sellars [2010] NSWCCA 133 at [8], [11] - but be that as it may, his Honour's conclusion was not challenged in the appeal and may be accepted. 45 What were not correct however were his Honour's reasons expressed in the passage just quoted and in another where he remarked:- The maximum penalty for the amount of drugs in question is in my view out of all proportion to their value and there is no other evidence determinative as to the seriousness of his offending. That being said, I have regard to the guide provided by the standard non-parole period in question as indicative of the seriousness of the offending as well as the issues of general and specific deterrence. 46 The decision of the High Court in Adams v The Queen [2008] 234 CLR 143 and of this Court in R v Nai Poon (2003) 56 NSWLR 284 at 286, 293-295 make clear that the seriousness of any particular drug is to be judged by the quantities specified by Parliament in Schedule 1 to the Drug Misuse and Trafficking Act and not by some judicial assessment of it. His Honour's remarks are quite inconsistent with these authorities by which he was bound. 47 Given particularly the Applicant's youth, the sentences imposed on him were severe. However, when compared with those to which I have referred in R v Sciberras and R v Mahmud and those discussed in R v Wang [2009], it is not possible to conclude that the individual sentences were manifestly excessive. Subject to the matter mentioned in the following paragraph, the fact of accumulation by only one year means that the total sentence also was not manifestly excessive. In this connection it must also be borne in mind that the Applicant's offending was while he was on conditional liberty, a fact that necessarily required promises by him to be of good behaviour and the breach of which is regarded as a seriously aggravating feature. 48 The qualification referred to in the immediately preceding paragraph concerns the relativity between the non-parole periods and the head sentences. Neither in the case of the individual sentences nor in the total effective sentence did this relationship comply with the requirement of s 44(2) of the Crimes (Sentencing Procedure) Act which provides that a balance of term must not exceed one-third of the non-parole period unless the Court decides that there are special circumstances and makes a record of its reasons for that decision. His Honour made no such finding and seems not to have adverted to the topic at all. The transcript of proceedings before him does not indicate that either party raised the matter although counsel for the Applicant did point out that this would be the Applicant's first time in custody, a matter which commonly is regarded as amounting to special circumstances justifying departure from the s 44(2) ratio. 49 The effective sentence imposed on the Applicant of 10 years including a non-parole period of 7 years is consistent with his Honour having taken the view that the relativity in s 44(2) should be departed from although if so, his departure was minimal. But whatever be the situation in this regard, his Honour erred in not referring to the matter in his remarks. In its submissions the Crown recognised that there were grounds for a finding of special circumstances but, picking up the terms of s 6(3) of the Criminal Appeal Act 1912, submitted that no lesser sentence was warranted in law. 50 In my view, because of the Applicant's youth and the fact that this is his first time in custody a lesser effective non-parole period was warranted. In these circumstances there should be a finding of special circumstances and the non-parole period for the offences I have numbered (ii) and (iii) reduced to 5 years. Thus I would propose the following orders:- (i) Grant leave to appeal; (ii) Allow the appeal; (iii) Confirm the sentence imposed by Williams DCJ on the charge of, on 21 December 2007, supplying a commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine; (iv) Quash the sentences imposed on counts (ii) and (iii); (v) In respect of the offence of, on 21 December 2007, supplying a large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 21 December 2008 and a further term of 4 years commencing on 21 December 2013; (vi) In respect of the offence of, between 13 November and 21 December 2007, supplying a large commercial quantity of 4-bromo-2,5-dimethoxyphenethylamine, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 21 December 2008 and a further term of 4 years commencing on 21 December 2013; (vii) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 21 December 2013. 51 DAVIES J: I agree with RS Hulme J.

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