Beatrice Chang v The Queen

[2018] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0210

BEATRICE CHANG	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2018
DATE OF JUDGMENT:	1 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 15
JUDGMENT APPEALED FROM:	DPP v Chang (Unreported, County Court of Victoria, Judge Carmody, 8 September 2017)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Applicant pleaded guilty to trafficking in a drug of dependence (methylamphetamine) – Sentenced to two year community correction order with conviction – Whether sentencing judge erred by recording conviction – Whether impact of conviction on applicant’s employment prospects, and 43 days in custody on remand, adequately taken into account – No reasonable prospect that Court of Appeal would find sentencing discretion miscarried – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Slades & Parsons
For the Crown	Mr B L Sonnet with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

1. On 1 September 2017, the applicant pleaded guilty in the County Court, at Melbourne, to one charge of trafficking in a drug of dependence (methylamphetamine). She now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009.

1. On 8 September 2017, the applicant was sentenced as follows:

Charge	Offence	Maximum Penalty	Sentence
1	Trafficking in a drug of dependence	15 years’ imprisonment	2 year community correction order
Total Effective Sentence			2 year community correction order
6AAA Statement			2 years’ imprisonment, with a non-parole period of 16 months

1. The community correction order was imposed with conviction.

Ground of appeal

1. The applicant seeks leave to appeal on the following ground:

The sentencing judge erred by recording a conviction against the applicant.

Particulars:

(a) His Honour erred by concluding that the applicant’s offending was ‘too  serious to do anything other than to proceed to conviction’.

(b) The recording of a conviction was unreasonable or plainly unjust.

(c) The considerations favouring a decision not to record a conviction far outweighed those supporting the recording of a conviction.

Summary of relevant facts

1. On 23 January 2017, the applicant, along with Michael Ung, her partner of five years, drove from Melbourne to Sydney. Once they arrived in Sydney, they stopped briefly in Mason Park, near Homebush, where they come into the possession of a bag containing an illegal substance.

1. According to Mr Ung’s account, he had arranged that the pair leave the car unlocked and go for a short walk. When they returned to the car, a bag had been placed on the back seat.

1. According to the applicant’s account, while sitting in the car at Mason Park, she witnessed an exchange between Mr Ung and an associate. She stated later in her record of interview that she did not know what had changed hands.

1. The applicant said that she had accompanied Mr Ung to Sydney merely in order to share the driving. Mr Ung had not told her what he intended to do in Sydney. However, she acknowledged that she had suspected that it was something ‘dodgy’ and that, potentially, it concerned drugs.

1. Mr Ung and Ms Chang left Sydney immediately after the exchange.  They stayed the night in Goulburn, where the applicant had booked accommodation prior to leaving Melbourne.

1. The next day, on 24 January 2017, the applicant and Mr Ung were driving south along the Hume Highway. At approximately 2.00 pm, their vehicle was the subject of a targeted intercept by police. Mr Ung, conceded in response to questions that there were drugs in the car. Both offenders were arrested. Ms Chang, when questioned about the presence of drugs responded, ‘maybe’.

1. Upon searching the vehicle, police located two bags containing a crystal substance in a fold down compartment behind the rear seats. A later examination revealed that the bags contained 4 kilograms of methylamphetamine, with a purity of approximately 83 per cent.

1. The agreed position between the Crown and the applicant was that she was suspicious from the very outset of the trip that its purpose was drug-related. After her suspicions were confirmed, she continued to assist Mr Ung. The Crown conceded that there was no evidence that she was aware that the quantity of the drugs was a large commercial quantity. For that reason, it was ultimately determined that she should be permitted to plead guilty to trafficking simpliciter.

Sentencing remarks

1. The applicant was aged 24 at the time of sentencing. The sentencing judge considered her personal circumstances, and particularly evidence of her exceptional character, in mitigation. She had no prior convictions of any kind, a good employment history and had attained a solid education, including university degrees at both bachelors and masters level. She was employed as an accounts administration officer for an accident repair centre at the time of sentencing.

1. His Honour noted that the applicant had been involved in the local Catholic parish, and had, since 2011, contributed to the community through volunteer work with both the RSPCA and the Melbourne Zoo. It was further noted in the sentencing remarks that the applicant had a number of skills, including fluency in three languages. She also had the strong support of her family.

1. The sentencing judge further noted, by way of mitigation, that the applicant had pleaded guilty at an early stage, and had demonstrated a good deal of remorse. His Honour considered a number of references that were submitted in support of the applicant’s character.  The applicant’s prospects of rehabilitation were considered to be ‘good’.

1. In his sentencing remarks, the judge considered the applicant’s submissions with respect to the impact that a conviction would have on her economic and social well–being, and particularly, her employment prospects. His Honour nonetheless concluded that the serious nature of the offence made it necessary that a conviction be recorded. 

Submissions in support of application for leave to appeal 

1. As previously noted, counsel for the applicant before me relied solely on the ground that the sentencing judge had erred by recording a conviction against Ms Chang.

1. Section 8(1) of the Sentencing Act 1991 governs the exercise of the sentencing discretion with regard to whether or not a conviction should be recorded. That section provides as follows:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –

(a) the nature of the offence; and

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender’s economic or social well-being or his or her employment prospects.

1. It was submitted that, in light of the considerations listed above, and having regard to the principles in House v The King,[1] it was unreasonable or plainly unjust for his Honour to have exercised his discretion to record a conviction.

   [1](1936) 55 CLR 499.

1. Counsel for the applicant, in his helpful oral submissions, highlighted the significance of the imposition of a recorded conviction, both on the applicant, and as a form of punishment generally. Counsel cited the following passage from Fox & Freiberg’s Sentencing: State and Federal Law in Victoria:

The recording of a criminal conviction is a significant act of legal and social censure. It is a judicial act by which a person’s legal status is officially and – subject to any provisions relating to expungement – irretrievably altered. The alternation effected by a conviction is a diminution of the offender’s legal rights and capacities. These follow automatically from the fact of conviction and are not necessarily tied to the particular sanction that follows it.[2]

[2]Arie Friedberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3^rd ed, 2014) 85 (citations omitted).

1. It was submitted on behalf of the applicant that while recording a conviction against an offender can advance the principle of specific deterrence, the Crown had conceded that this particular sentencing factor was not relevant so far as she was concerned.

1. It was further submitted that the Community Correction Order alone, without conviction, would have constituted just punishment, considering that the applicant had spent some 43 days on remand at a time when it was proposed that she face a more serious charge. It was contended that, had the applicant been charged with trafficking simpliciter in the first instance, as it was submitted she ought to have been, her bail would not have been refused.

1. The applicant conceded the seriousness of the offence, but referred to a number of cases, that were impliedly said to be of at least similar gravity, where convictions had not been recorded. [3]

   [3]See, eg, DPP v Candaza [2003] VSCA 91 (convictions not recorded against young offenders who had committed armed robberies); R v McFarling (Unreported, Supreme Court of Victoria Court of Appeal, Ormiston and Charles JJA and Vincent AJA, 20 November 1996) (convictions not recorded against an accountant who was charged with four counts of theft totalling $3500); R v Brown [1994] 2 Qd R 182 (conviction not recorded against a 23 year old charged with dangerous driving causing death), DPP (Cth) v Li (2003) 34 ACSR 457 (conviction not recorded against a 42 year old who engaged in a sales tax fraud amounting to $160,000). It should be noted, however, that all of these cases are of some antiquity, and it would be dangerous to assume that a non-conviction disposition would be thought appropriate in similar circumstances, were they to arise today.

1. In relation to the offence itself, it was submitted that the applicant’s offending should be regarded as being at the ‘low end’ of the scale.  This was largely because she was not the principal offender, and there was no suggestion that she stood to gain from her involvement.

1. The Crown submitted in response that the sentencing judge had not erred in exercising his discretion to record a conviction. It highlighted the gravity of the offence, pointing out that the applicant’s conduct in trafficking this drug involved far greater culpability than mere street trafficking. 

1. It was further noted by the Crown that, in a case of this seriousness, the impact of a conviction on the employment prospects of the applicant did not, of itself, justify not recording a conviction. In fact, it its written submissions, the Crown queried whether there was adequate evidence before the sentencing judge that the applicant’s employment prospects in her chosen field would be stifled by the recording of a conviction, as opposed to a mere plea of guilty. 

Conclusion

1. Having regard to the applicant’s acknowledged suspicion that Mr Ung was engaged in some form of illicit drug dealing, it is difficult to see how anything other than the recording of a conviction could possibly have been justified. Nonetheless, it is conceivable that some might think that such a disposition would have been open, particularly in combination with a substantial Community Correction Order. I am not of that view. In saying that, I do not ignore the 43 days that the applicant was held in custody before the charge against her was downgraded.

1. Any application for leave to appeal against sentence must overcome the difficulties presented by House v The King.[4] It seems to me impossible to assert that it was not reasonably open, in the circumstances of this case, for the judge to conclude that the recording of a conviction was appropriate. The applicant suspected, at all relevant times, that she was assisting Mr Ung in some form of illicit drug enterprise, and it would not have involved a very small quantity of drugs. Her moral culpability was therefore significant.

   [4](1936) 55 CLR 499.

1. It is one thing to say that this case did not necessarily merit a term of imprisonment. Ultimately, that was the conclusion arrived at by the sentencing judge, and I would respectfully agree with his ultimate decision in that regard. It is altogether something else to say that it was not open to the sentencing judge to have concluded that a non-conviction disposition was inappropriate.

1. I am fortified in my view that there is no reasonable prospect that the decision to record a conviction would be set aside by this Court, were leave to appeal to be granted. I refer, in that regard, to the following statement, as set out in the prosecution opening, which was read to the judge at the commencement of the plea:

Ung hadn’t told her what they were doing, but she had suspected it was something ‘dodgy’, like drugs, and that she had harboured suspicions for a while. She said it was his idea to go to Sydney and she tagged along because he wanted someone to help drive. She asked Ung about her suspicions, but he told her not to get involved or ask too much. She admitted having been to Sydney on such short trips with Ung twice before, starting in mid-2016. He told her it was for work. She believed he didn’t ‘own’ the drugs but he must have been ‘passing them onto someone else’ because she didn’t believe him capable of knowing where to sell or get drugs.

1. Defence counsel on the plea did not challenge that particular statement on the plea.  The concession that the applicant had accompanied Mr Ung on earlier trips to Sydney, or short duration, was plainly damaging so far as she was concerned. It demonstrated clearly why her state of mind, namely her suspicion that Mr Ung was involved in some illicit drug activity, was soundly based. It indicated that her moral culpability was greater than might, at first glance, have been thought.

1. Notwithstanding counsel’s submissions, I do not think that there is any reasonable prospect that this Court would ultimately hold that the sentencing discretion miscarried in the way for which the applicant now contends. Accordingly, the application for leave to appeal must be refused.

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