Chiang v R

[2016] NSWCCA 45

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chiang v R [2016] NSWCCA 45
Hearing dates:	18 March 2016
Date of orders:	01 April 2016
Decision date:	01 April 2016
Before:	Beazley P, Harrison J and R A Hulme J at [1]
Decision:	(1)    Application for leave to appeal granted and the appeal allowed. (2)    Quash the sentence imposed in the District Court on 2 October 2015 and in lieu thereof sentence Mr Chiang to imprisonment for a non-parole period of 6 months with a balance of term of 3 months. The sentence is to date from 2 October 2015. The non-parole period expires on 1 April 2016 and the total term expires on 1 July 2016. The Court directs the release of Mr Chiang on parole forthwith.
Catchwords:	CRIMINAL LAW – appeal against sentence – supply prohibited drug – s 25(1) Drug Misuse and Trafficking Act 1985 – whether sentencing judge entitled to be satisfied that drugs were in the possession of applicant for purposes claimed by him – whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	AB v R [2014] NSWCCA 339 Aoun v R [2011] NSWCCA 284 Clarke v R [2015] NSWCCA 232 Colville v R [2015] NSWCCA 149; 71 MVR 259 Dinsdale v The Queen [2005] HCA 54; (2000) 202 CLR 321 at 325 Filippou v The Queen [2015] HCA 29; 89 ALJR 776 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 McVittie v R [2015] NSWCCA 92 Mulato v Regina [2006] NSWCCA 282 R v Hinton (2002) 134 A Crim R 286 R v Holden [2014] NSWCCA 230 R v O’Donoghue (1968) 34 A Crim R 397 R v Taylor [2000] NSWCCA 442 R v Visconti [1982] 2 NSWLR 104 R v Zamagias [2002] NSWCCA 17 Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Category:	Principal judgment
Parties:	Michael Yui Chiang (Applicant) Crown (Respondent)
Representation:	Counsel: N Parsons (Applicant) H Baker (Respondent)   Solicitors: Ren Zhou Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/322416
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 October 2015 Before: Scotting DCJ File Number(s): 2014/322416

Judgment

1. THE COURT: Michael Chiang seeks leave to appeal against the sentence imposed upon him by Scotting DCJ on 2 October 2015 for the supply of ecstasy tablets, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. There is no standard non-parole period prescribed.

2. His Honour sentenced Mr Chiang to a term of imprisonment for 18 months to commence on 2 October 2015 and to expire on 1 April 2017 with a non-parole period of 9 months expiring on 1 July 2016. His Honour discounted the sentence by 25 percent to reflect Mr Chiang’s early guilty plea.

Background

3. The facts were in relatively brief compass.

4. On Saturday 1 November 2014 police were conducting a drug detection dog operation at the entrance to a music festival at Luna Park in Sydney. At 5.30pm police saw a man in the pier area adjacent to Luna Park who was seated and talking to Mr Chiang. Both men were leaning in close to each other and were continually looking about. After a short time the men shook hands. Mr Chiang placed an item into a shoulder bag that he was carrying before standing and walking away. As he was walking along a footpath away from the side entry to Luna Park he was seen to take a mobile phone from his shoulder bag and commence a conversation. He was heard to say, “Nah, I’ve got to go home and wrap them first.”

5. Mr Chiang ended the phone call when a police officer approached and introduced himself. When asked what he had on him, Mr Chiang reached into his pocket and removed a small resealable bag containing 24 ecstasy tablets. He was searched but no other items of interest were located. In a subsequent conversation with another police officer Mr Chiang confirmed that the tablets had been in his pocket. The 24 tablets were later analysed and found to comprise 7.1 grams of 3,4-methylenedioxymethylamphetamine with a purity of 18.5 percent.

6. The statement of facts (which were not disputed) concludes: "The accused was in possession of the 24 MDMA tablets for the purpose of supply".

7. Mr Chiang was 25 years of age at the time of sentence. He has a criminal record which, aside from driving offences, includes being an accessory after the fact to a serious indictable offence and larceny. He has been subjected to nothing more severe than fines, good behaviour bonds and disqualification from driving.

Mr Chiang’s case

8. Mr Chiang gave evidence. He said that he agreed with the statement of facts. He stated that he recognized the man he spoke to as being a drug dealer (although in cross-examination he said that he had never seen the man before). The man did not give Mr Chiang any drugs because he had “his own stuff”. He agreed that he used the words “Nah, I’ve got to go home and wrap them up first” but did not remember with whom he was speaking when he said this. He said that he did not know what he meant by that comment. In cross-examination he confirmed that he lived at Carlingford and was about to go into the dance party.

9. Mr Chiang said that he got the 24 pills from a friend at university and paid $300 for them. They had been purchased for his own consumption. He said that he intended to go to the music festival and consume ten pills himself over a period of eight to nine hours. He intended to distribute the remaining 14 pills to five or six of his friends who would be at the same festival. He was not going to receive any money from his friends in exchange for the pills. Mr Chiang agreed to collect the drugs for his friends because it was his turn to take them to the festival. He stated that other people had bought ecstasy for him on other occasions at festivals in the past.

10. Mr Chiang conceded that he had a drug problem. He started taking ecstasy about three years ago by taking one pill but his tolerance built up and he needed to take more. He had not taken any drugs since his arrest. He was asked about the Pre-Sentence Report in which it was recorded that he told the author "he had never used any illicit drugs" and that he "was adamant that he had never used or even experienced [sic – experimented] with any illicit substances". Mr Chiang explained in his evidence that he was conveying to the officer that he had not taken "addictive drugs such as ice and heroin". He put it down to "miscommunicating" with her. He was also reported to have told the author that all of the drugs were for his friends but not for profit or personal use. When asked in cross-examination about that he said, "No I didn't say that, I said that I consume ecstasy" and that "they were for my friends and for myself".

11. Mr Chiang said that he was attending university and did not have any employment. His mother supported him. She had given him $100 to purchase a ticket to the dance party. There was no direct evidence as to the source of the $300 used to purchase the tablets.

Grounds of appeal

12. Mr Chiang relied upon two grounds of appeal:

Ground 1: His Honour erred in not being satisfied on the balance of probabilities that the applicant’s evidence was sufficient to satisfy him that the drugs were in the applicant’s possession for the purpose of supply as outlined by the applicant.

Ground 2: The sentence is manifestly excessive.

Ground 1

13. Part of his Honour’s remarks on sentence was in the following terms:

“The offender bears the onus of calling evidence and proving on the balance of probabilities matters to be taken into account in favour of the offender outside the agreed facts, R v Olbrich (1999) 199 CLR 270 at [27]. I am not satisfied on the balance of probabilities that the offender’s evidence is sufficient to satisfy me that the drugs were in his possession for the purposes of supply as outlined by him. The evidence given by the offender in this regard was vague and lacking specificity. It was self-serving and uncorroborated. He did not name any of his friends who were supposedly a party to this arrangement or call any evidence from them. I do not accept that his mother has the financial means to support him in all aspects of his life including the purchase of illegal drugs. I do not accept that the arrangement specified by him in his evidence was likely to occur and in my view his evidence about the intended consumption and supply of the drugs was untrue.

That leaves the Court in the position in which it is hard to assess the true involvement of the offender, but that can often be the case in these types of offences. I do not by these reasons accept or imply that the offender was involved in supply for a profit, nor do I accept or infer that there were any other aggravating features. I am unable to be satisfied beyond reasonable doubt that the offender was involved in trafficking or otherwise substantially involved in supply.”

14. Mr Chiang complained that his Honour erred in finding that the evidence was vague and lacking in specificity, was self-serving and uncorroborated and that none of Mr Chiang’s friends was identified. He also complained that his Honour proceeded to find that Mr Chiang’s mother did not have the financial means to support him and that the specified arrangement was unlikely. Mr Chiang also challenged his Honour’s rejection of his evidence about consumption as untrue.

15. The difficulty confronting Mr Chiang in establishing these challenges is that he must demonstrate that his Honour made an error, not merely that he reached a conclusion or formed an opinion with which Mr Chiang disagrees or is otherwise unhappy. At the heart of Mr Chiang’s attack upon his Honour’s rejection of Mr Chiang’s own evidence is a contention that his Honour was not entitled to do so. However, his Honour’s assessment of Mr Chiang as a credible or reliable witness or otherwise was a matter peculiarly within the scope of his Honour’s task. The evidence given by Mr Chiang was available in whole or in part for acceptance or rejection by his Honour. The story proffered by Mr Chiang concerning his intentions about consumption of the drug or its distribution to friends was never something that his Honour was bound to accept. This ground of appeal can only succeed if his Honour rejected the evidence in question when it was not open for him to do so.

16. The jurisdiction of this Court to interfere in the present context is exercisable only where there can be seen to be some error of principle or mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108; Aoun v R [2011] NSWCCA 284; R v O’Donoghue (1968) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [44]-[55]; McVittie v R [2015] NSWCCA 92 at [36]; Colville v R [2015] NSWCCA 149; 71 MVR 259 at [29]. See also the discussions (obiter) in Clarke v R [2015] NSWCCA 232 and Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26]-[36].

17. Mr Chiang appears to contend that his Honour was required to sentence him upon a characterisation of the facts most favourable to him. His Honour was not required to do so: Filippou v The Queen [2015] HCA 29; 89 ALJR 776 at [5]. In the not dissimilar case in this Court of R v Holden [2014] NSWCCA 230 at [26]-[27] Harrison J commented as follows:

“[26] The Crown emphasised that it was significant that his Honour sat as the tribunal of fact and had the important advantage of hearing and observing the applicant in the witness box. That advantage was the same as that enjoyed by juries to which the authorities predominantly refer. However, in the present case, the evidence did not in my view even produce a doubt that required deference to the trial judge's special advantage. The evidence promoted by the applicant did not point in only one direction or produce the conclusion that the trial just must have entertained a reasonable doubt. On the contrary, the factors highlighted by the applicant were at best colourable. In other words, none of them either alone or in combination necessarily points only or even persuasively to the conclusion that the applicant acquired the drugs for his personal use or ‘otherwise than for supply’. Such a conclusion is arguable but no more than that. In the events that occurred, his Honour did not accept the applicant's explanation of the circumstances in which or the purposes for which he acquired the drugs. His Honour was perfectly entitled to reach that conclusion.

[27] That is particularly so having regard to the fact that many of the matters upon which the applicant relied do not speak for themselves, but are dependent upon acceptance of the applicant as a witness of truth. The fact that there was no evidence that directly contradicted the applicant's version of events does not equate to proof by him on the balance of probabilities that he possessed the drugs otherwise than for supply. The burden of the applicant's submission is in effect that his uncontradicted evidence had to be accepted by his Honour and that he fell into error by not doing so. That general proposition is not, and for obvious reasons could not be, correct. His Honour rejected the applicant's evidence for the reasons that he gave. His Honour fell into no error by doing so.”

18. In our opinion, the same can be said of the sentencing judge in this case. He was not bound to believe Mr Chiang and was entitled to disbelieve him. His Honour’s finding that the evidence was vague or lacking specificity was limited to Mr Chiang’s evidence about his possession of the pills and his intended use and supply. That was a finding that was reasonably open on the evidence. His Honour was perfectly entitled to be sceptical about Mr Chiang’s evidence that he had an arrangement with unnamed friends of unspecified number centred on a loose reciprocal agreement among them.

19. The finding that the evidence was self-serving and uncorroborated is unassailable. It is not a proper basis upon which to criticise his Honour to suggest that the frailties in Mr Chiang’s evidence were explicable having regard to the fact that he did not wish to identify or incriminate his friends. His Honour would undoubtedly have appreciated that fact, but he was not bound as a consequence any more readily to accept Mr Chiang’s evidence, and Mr Chiang bore the onus by reference to proper evidence of satisfying his Honour in this respect.

20. His Honour was similarly not obliged to accept that Mr Chiang's mother had "the financial means to support him in all aspects of his life including the purchase of illegal drugs". Proof of that proposition would have at least required some evidence, presumably from her. His Honour fell into no error by declining to accept a submission, based only upon an unsupported inference that money for the purchase of the pills came from a legitimate source.

21. Finally, again in the absence of evidence touching the issue from anyone other than Mr Chiang, his Honour was perfectly entitled to reject a submission that Mr Chiang intended to ingest ten of the pills that evening by himself. His Honour fell into no identifiable error by concluding that the arrangement that Mr Chiang said he had with his friends was unlikely or that his evidence about his intentions concerning personal use of the pills was untrue. The conflict between the account he apparently gave to the author of the Pre-Sentence Report and his evidence at the sentence hearing did not inspire confidence in Mr Chiang's credibility on such topics.

22. This ground of appeal distils to a proposition that his Honour was not in the particular circumstances of this case entitled to reject Mr Chiang’s evidence. His Honour, on the contrary, was completely entitled to do so. The assessment of witnesses is the daily fare of judges. The conclusions reached cannot be successfully challenged unless it can be shown that his Honour proceeded erroneously to exercise the relevant discretion. Mr Chiang has not demonstrated that his Honour did so here.

Ground 2

23. In Mulato v Regina [2006] NSWCCA 282 at [46], Simpson J (as her Honour then was) said this about the assessment of the objective seriousness of an offence:

“[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.”

24. The same can be said about this Court's approach to a complaint that a sentence is manifestly excessive: the role of the first instance judge should never be underestimated and it is not a matter for this Court to trespass upon his or her function by simply substituting its own view as to the appropriate sentence. Moreover, manifest excess has to be established having regard to the fact that there is no single correct sentence. Sentencing judges are afforded flexibility in the exercise of their sentencing discretion that is constrained only by the requirement that they correctly apply applicable principle. Generally, see Markarian v The Queen [2005] HCA 25; 228 CLR 357.

25. Mr Chiang uncontroversially accepted that in order to establish that the sentence imposed by his Honour was manifestly excessive, he would have to establish that it was unreasonable or plainly unjust: Dinsdale v The Queen [2005] HCA 54; 202 CLR 321 at 325.

26. In support of that contention Mr Chiang submitted that the objective seriousness of the offence was not high. No aggravating circumstances were found. There was no profit motive connected with the offence. The quantity of MDMA was 5.68 percent of the maximum amount before the drug would have been classed as a commercial quantity. We observe that it was also almost ten times the prescribed traffickable quantity.

27. In addition, Mr Chiang submitted that he had a strong subjective case, being a young man of 25 years of age with only a minor criminal history, no part of which relevantly informed the sentencing exercise in this case. Mr Chiang was in the third year of an undergraduate degree in business and commerce at Western Sydney University. He lived at home with his mother. His parents divorced when he was very young. He had never been sentenced to a term of imprisonment before and he had good prospects of rehabilitation. Mr Chiang had also expressed what his Honour concluded was genuine contrition and remorse.

28. Mr Chiang also drew attention to statistics for sentencing in relation to offences against s 25(1) of the Drug Misuse and Trafficking Act. Putting aside some no doubt inadvertent misinterpretation of them in the written submissions, the statistics currently available indicate that out of 740 offenders who were sentenced in the seven years up to September 2015, only 127 or 17 percent received a full-time custodial sentence. Where the offender was sentenced for no other offence at the same time, 42 out of 463 (or 9 percent) received full-time imprisonment. Where a plea of guilty was entered (in the vast majority of cases) the proportions are the same. Mr Chiang thus submitted that his Honour’s sentence represented a departure from both the pattern and level of sentences in similar cases.

24. The Crown emphasised in response that Mr Chiang’s counsel conceded before his Honour on two occasions that the offence was sufficiently serious to warrant a sentence of imprisonment. The significance of that concession however needs to be qualified by recognition of the fact that argument below focussed upon the question of whether or not a suspended sentence should be imposed. The Crown referred to the fact that numerous judicial observations have referred to the fact that a suspended sentence will not be appropriate where the court declares that the offence in question is one where the element of general deterrence is of particular importance: the written submissions cited R v Taylor [2000] NSWCCA 442 at [49]; R v Zamagias [2002] NSWCCA 17 at [32]; R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 at [35]. In this case his Honour specifically commented that “general deterrence [was] necessary to signal to persons taking drugs into music festivals or dance parties for supply to their friends or otherwise [that they] will meet with severe punishment.”

25. There is no doubt in our view that his Honour proceeded thereafter in line with that comment to punish Mr Chiang severely. It is true that his Honour extended Mr Chiang the generosity of a favourable finding of special circumstances having regard to what his Honour considered to be unresolved drug issues requiring assistance and rehabilitation following his release. His Honour had clearly not, however, been prepared to accede to Mr Chiang’s submissions that a suspended sentence was appropriate. We note in passing that it could not be said in all of the circumstances of the case that such a result would have been manifestly inadequate, particularly having regard to Mr Chiang’s strong subjective circumstances.

26. It was plainly his Honour’s view, in light of his assessment of the objective seriousness of the offence, taken in conjunction with the need for general deterrence, and having regard to the maximum penalty which included 15 years imprisonment, that a custodial sentence was warranted. We agree that a full-time custodial sentence was called for.

27. However, we are also of the view that the starting point of 2 years before reduction on account of Mr Chiang's early plea of guilty was excessive. Mr Chiang was a relatively young man with no significant criminal history. He was co-operative with police, pleaded guilty at an early stage and was found to be genuinely contrite with good prospects of rehabilitation. Further, while his Honour rejected Mr Chiang's account, he was also not prepared to find that the proposed supply of the drugs had any financial motivation. A significantly lesser starting point for the sentence was appropriate and would still serve the purposes of deterrence, both general and personal.

28. We are mindful of the other purposes of punishment listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 which include promoting the rehabilitation of the offender. His Honour accepted that Mr Chiang had unresolved drug issues. His Honour accepted the evidence that Mr Chiang had experienced depression, anxiety and mood swings since his arrest and was on a waiting list to see a psychologist. His Honour also considered that despite his evidence that he had ceased using drugs, there remained "unresolved drug issues".

29. We accept the unchallenged assessment of the primary judge that no penalty other than imprisonment is appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act. We consider that the appropriate term of the sentence is 12 months which should be reduced to 9 months on account of the early plea of guilty. We do not consider that suspension of such sentence is appropriate in all of the circumstances. There should be a finding of special circumstances but only to the extent that would see Mr Chiang released on parole forthwith.

Orders

35. We make the following orders:

1. Application for leave to appeal granted and the appeal allowed.

2. Quash the sentence imposed in the District Court on 2 October 2015 and in lieu thereof sentence Mr Chiang to imprisonment for a non-parole period of 6 months with a balance of term of 3 months. The sentence is to date from 2 October 2015. The non-parole period expires on 1 April 2016 and the total term expires on 1 July 2016. The Court directs the release of Mr Chiang on parole forthwith.

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Decision last updated: 01 April 2016