Ha v R

[2008] NSWCCA 141

New South Wales
Court of Criminal Appeal

CITATION:	Van Can HA v REGINA [2008] NSWCCA 141
HEARING DATE(S):	14 December 2007
JUDGMENT DATE:	24 June 2008
JUDGMENT OF:	Grove J at 1; Hulme J at 7; Simpson J at 63
DECISION:	Grant leave to appeal Dismiss the appeal
PARTIES:	Van Can HA Regina
FILE NUMBER(S):	CCA 2007/2943
COUNSEL:	Crown: P Miller Applicant: P Hastings QC
SOLICITORS:	Crown: S Kavanagh Applicant: D'Arcy Sloman Peacock Lawyers
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0992
LOWER COURT JUDICIAL OFFICER:	Taylor DCJ
LOWER COURT DATE OF DECISION:	09/02/07

- 19 -

2007/00002943

GROVE J
HULMEJ
SIMPSON J

Tuesday 24 June 2008

Van Can HA v REGINA

JUDGMENT

1 GROVE J: I agree with the orders proposed by Hulme J.

2 I wish only to add some brief observations. The effective sentence is severe but it was justified by the conclusion of the learned sentencing judge that the offences did not arise from isolated criminality but from the appellant’s engagement in trafficking for financial gain. That finding was available and plainly correct.

3 The reasons given by Hulme J demonstrate why the appellant can have no justifiable sense of grievance about the way he was treated when compared to sentences received by other offenders to which argument in support of the appeal was directed.

4 Unlike Hulme J I would not, after examination, categorize the remarks of the sentencing judge as unduly cryptic nor would I conclude that there was shown an inadequate compliance with the mandatory requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999. Of course the language of that statutory provision is that of command but I would stress that the scope of the mandate should not be misunderstood and any compliance is dependent upon the existence of relevant evidence of any particular factor. The mandate does not require a sentencing judge to engage in a ritual analysis of the possible factors scheduled therein in order sufficiently to reveal the processes involved in the penalty assessment. The expression in the present instance could have more readily conveyed the necessary information by the use of simple statements of findings of fact but, nevertheless, I consider that there was adequate discharge of duty. It should be borne in mind that the “matters” referred to in s 21A(1) extend beyond the litany of aggravating or mitigating factors tabled in s 21A (2) and s 21A (3) and prudence would suggest making findings in accordance with the evidence in a particular case rather than commencing by referring to the content of those subsections as a type of checklist.

5 Interwoven into the remarks on sentence were references to some 26 reported and unreported legal authorities as well as recitation of extracts from statute and those additions tended to obscure the statement of reasoning which had been undertaken. Whilst, as I have said, I did not upon analysis find his Honour’s remarks unduly cryptic, it is difficult to recognize remarks couched in such terms as fulfilling a primary duty of the sentencing judge to inform the offender in language which he is likely to understand of the reasons for the sentence then being imposed: R v King [2003] NSWCCA 352. There was a failure in that regard.

6 Notwithstanding that criticism, the whole of the facts and circumstances made no lesser sentence than that imposed appropriate.

7 HULME: On 9 February 2007 this Applicant for leave to appeal was sentenced by Taylor DCJ in respect of 2 charges to which he had pleaded guilty. The charges were that he had, on 18 October 2004, supplied heroin. The sentences imposed were:-

Count 1 : Imprisonment for 2 years and 2 months, including a non-parole period of 12 months, both periods commencing on 19 September 2006; and
Count 2 : Imprisonment for 7 years including a non-parole period of 4 years, both periods commencing on 19 March 2007.

8 The effective sentence imposed was thus of imprisonment for 7½ years including a non-parole period of 4½ years.

9 The quantity the subject of the first charge was an amount of 27.1 grams that his Honour found had been sold by the Applicant and a co-offender Nguyen to a person Dao who had attended the Applicant’s house, left and was soon afterwards arrested in possession of that heroin. His Honour found that Dao had paid $8000 for the heroin.

10 The evidence did not establish with any precision the quantity the subject of the second charge. When arrested the Applicant was found in possession of various sums of money including the sum of $8,000 previously mentioned and a further amount of $60,000 which his Honour found was intended as the purchase price of some heroin the Applicant had agreed to on-supply. His Honour also found that at the time the price for 350 grams of heroin ranged between $95,000 and $140,000, a finding that leads to the conclusion that the heroin the subject of the second charge was not less than 150 grams. (In fact the police had intercepted telephone calls leading to the Applicant’s involvement with this offence and in which quantities had clearly been discussed. However the discussions were in part in code and there was no direct evidence of the meaning of the code words used.)

11 The Applicant’s offences arose pursuant to s25(1) of the Drug (Misuse and Trafficking) Act and each rendered the Applicant liable to imprisonment for 15 years. Had either amount exceeded 250 grams, the Applicant’s offending would have fallen into a different category where the maximum penalty would have been 20 years. In the case of quantities that are ‘’small’’ (less than 1 gram) and the offence is prosecuted summarily as almost invariably such offences are, the maximum penalty of imprisonment would have been 2 years.

12 In mid-2004 police began intercepting and recording telephone conversations involving the Applicant and a number of other persons. Most of the calls used coded language and the mobile phone used by the Applicant and the subject of intercept was registered with false particulars. On 18 October 2004 the Applicant was the subject of police surveillance and following the arrest of Dao and the Applicant on that day searches of 2 separate premises used by the Applicant were conducted. One of those premises were observed by police to be “heavily fortified” and in it were found electronic scales, two silver press plates, an electric coffee grinder, a vacuum sealer, surgical gloves, face masks and a wet plastic bag containing a white residue, which was later tested and found to contain traces of quantities of monoacetlymorphine, morphine and codeine (substances that are derivatives of heroin). At the other premises, police found 2 bundles of 20 $50 notes and a plastic bag containing mannitol – a commercial sugar and non-toxic substance that is commonly used as a cutting agent for heroin.

13 In the Applicant’s car the police found a bottle jack, the markings on the piston of which matched those found on the silver plates. There was evidence that the jack and plates were of a nature that was used for the pressing (or compressing) of heroin. The Applicant’s possession of these various items contributed to his Honour concluding that the Applicant was engaged in a commercial enterprise. His Honour also found that the Applicant’s motivation was greed and that his role in the drug hierarchy was a superior one. These findings were fully justified.

14 It is also to be noted that the Applicant pleaded guilty albeit this was 2 days after a voir dire hearing had commenced and 4 days after he was arraigned for trial. The plea was also in respect of only 2 of 4 charges preferred against him, the Crown electing to accept these pleas in full satisfaction of the indictment and to not proceed on 2 further charges, one of supplying on 18 October a commercial quantity of heroin and the second, of supplying between 18 August and 19 October 2004 a large commercial quantity of heroin. His Honour observed in this regard:-

“This is not a plea at the earliest opportunity so as to attract the maximum 25% utilitarian discount ( R v Stambolis [2006] NSWCCA 56 paras 11-14).
A discount of 20% is appropriate in this case given that the plea was entered after the offender was arraigned in the court for trial but prior to the completion of the voir dire and the empanelment of the jury.”

15 Later his Honour added:-

“I will just correct something I said earlier, a discount in the order of 15-20% is appropriate in this case. R v Blanco (CCA (NSW) 22 October 1987, unreported), R v Burnett (1996) 85 A Crim R 76: R v Atkins (CCA (NSW), 3 November 1998, reported).” (sic)

16 I have so far said nothing about the Applicant’s subjective circumstances. A number of the grounds of appeal assert error in his Honour’s approach to various aspect of these circumstances and it is convenient to defer the detail concerning these and then to deal with those grounds together after consideration of most of the others.

17 The grounds of appeal are:-

i. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s rehabilitation.

ii. The sentencing Judge erred in assessing the Applicant’s role in the offences and fell into error in accordance with the principles laid down in The Queen v De Somoni (1981) 147 CLR 383.

iii. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s strong subjective circumstances.

iv. The sentencing Judge failed to take into account the applicant’s contrition.

v. The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s lack of any prior criminal history.

vi. The sentencing Judge failed to take into account or take sufficiently into account, the sentences imposed on two co-offenders.

vii. The sentencing Judge failed to take into account the mitigating factors on behalf of the Applicant as required by section 21A (3) of the Crimes (Sentencing Procedure) Act 1999.

viii. The sentencing Judge failed to take into account the delay in sentencing, the delay in service of the police brief and the arduous bail conditions to which the Applicant was subjected.

ix. The sentences were manifestly excessive.

Ground 2
The sentencing Judge erred in assessing the Applicant’s role in the offences and fell into error in accordance with the principles laid down in The Queen v De Simoni (1981) 147 CLR 383.

18 In support of this ground it was submitted that the only evidence against the Applicant was of events observed by police on one day and that his Honour should have considered the Applicant’s criminality as simply that of a one-off (joint) supply of 27 grams and a one-off attempt to obtain $60,000 worth of heroin for delivery or supply to another person for $65,000. It was further submitted that in relation to the latter transaction that the Applicant was at most akin to a courier or middleman between suppliers of the raw product and suppliers of the street level product.

19 I disagree. While the Applicant fell to be sentenced for only the offences charged it was relevant for his Honour to consider whether they were isolated events, for perhaps casual profit or serious premeditated business-like criminality. Although such further attributes render the Applicant liable to greater punishment as demonstrating greater criminality, they do not constitute some other offence and to take them into account does not offend the principles laid down in The Queen v De Simoni. Furthermore, as I have indicated, the accoutrements found by his Honour well justified the conclusion that the Applicant’s role was not merely that suggested but was at a superior level.

20 This ground fails.

Ground 6
The sentencing Judge failed to take into account or take sufficiently into account, the sentences imposed on two co-offenders.

21 Dao was charged with and, at the Local Court pleaded guilty to, supplying the 27.1 grams of heroin that was the subject of the first count against the Applicant. He was sentenced by Hosking DCJ to imprisonment for a total term of 2½ years including a non-parole period of 15 months after a discount of 25% had been allowed for his plea.

22 Dao had a prior record for, in 1995, stealing for which he was fined $200 and, in 2000, for supplying a prohibited drug for which a sentence of 3 years including a non-parole period of 1 year had been imposed. It was submitted that the sentence of 2 years and 2 months including a non-parole period of 12 months imposed on the Applicant did not give sufficient recognition to the fact that the Applicant had no prior offences on his record. It was further submitted that the Applicant had pleaded guilty at the first opportunity he could, he having faced up to that time substantially more serious charges.

23 If all other things were equal Dao’s record argued for a more severe sentence being imposed on him than on the Applicant. However, a more severe sentence was imposed on him, the non-parole period being 25% greater. In the context of the length of sentences under consideration here, the principles of parity are not so precise in their application that the difference gives rise to a legitimate sense of grievance in the Applicant. But in any event all other things were not equal. The Applicant was found to be engaged in a commercial enterprise. Although Dao was found to have intended to supply to someone at least part of the 27.1 grams, there was no comparable finding of him being engaged in a commercial operation. Secondly, Dao’s sentence reflected a greater discount for his plea than did the Applicant receive for his plea.

24 Thirdly, and while I will say more below concerning the discount the Applicant received for his plea he was not entitled to a discount of 25%. As has been pointed out on a number of occasions – see e.g. R v Stambolis [2006] NSWCCA 56 at [11] – [14] – the justification for a 25% discount is that a plea is entered at committal proceedings where it has the utilitarian value that preparation for a trial does not have to occur. Dao’s plea had that value. The Applicant’s did not.

25 Nguyen, it is said, was originally arraigned on the one indictment with the Applicant although the terms of that indictment are not before this Court. However the Court did have before it the remarks on sentence of Taylor DCJ who sentenced Nguyen on the same day as his Honour sentenced the Applicant. Those remarks refer to a trial of Nguyen on 4 counts having commenced, a ruling on the admissibility of evidence and some weeks later pleas of guilty to 2 of the charges and the acceptance by the Crown of those pleas in full satisfaction of the indictment. One of the charges pleaded to was of supply 0.43 grams of methylamphetamine on 19 August 2004 and the second was of the deemed supply on 25 August of a commercial quantity, viz 294 grams, of heroin. The sentences imposed were, on the first of these charges imprisonment for a fixed term of 6 months and, on the second, imprisonment for a non-parole period of 6 years with an additional term of 3 years. Both sentences were ordered to commence on the same date. Mr Nguyen had previously been convicted in Victoria for some offence involving heroin and sentenced to imprisonment for 4½ years including a non-parole period of 3 years and was on parole at the time of the offences in this State.

26 It is contended on behalf of the Applicant that, given the more serious nature of Nguyen’s principal offence, his record and the fact that he was on conditional liberty at the time, the 7 years sentence imposed on the Applicant for the offence the subject of the second count in the indictment is disproportionate to the 9 years sentence imposed on Nguyen. There is clearly much to be said for that view. However, the principles of parity do not apply except between persons who are charged as co-offenders. The application of those principles is sufficiently complicated even in that situation to make it impractical to extend them to consider the situation of persons who are not strictly co-offenders. Of course, sentences on such persons may be relevant in the same way that sentences on all persons convicted of the same or sufficiently similar offences are but that is the limit of the relevance of the sentence imposed on Nguyen.

27 This ground fails.

Ground 8
The sentencing Judge failed to take into account the delay in sentencing, the delay in service of the police brief and the arduous bail conditions to which the Applicant was subjected.

28 The Applicant was arrested on 18 October 2004 and remained in custody until granted bail on 10 March 2005. He pleaded guilty on 22 September 2006 and, as has been said, he was arraigned 4 days earlier. Proceedings were then adjourned until 10 November and again until 20 November. On that day the Applicant’s counsel was unavailable and the matter adjourned until 8 December when, for reasons not apparent on the transcript it was adjourned until 13 December. Although on that day the transcript records that all parties and Taylor DCJ could deal with it, the matter was stood over until 9 February when the Applicant was sentenced. Although a matter of inference, it seems likely that this last adjournment was because of some difficulty with Nguyen’s case, his Honour taking the view that the matters should remain together.

29 On 22 September the Crown had agreed to the Applicant remaining on bail and this situation remained until sentence. When first granted bail the Applicant was obliged to report daily to police. This condition was varied on 18 May 2005 or 15 August 2005 – the Particulars of Trial and the written submissions of the Applicant’s counsel vary in this regard - to reporting thrice weekly, on 25 November 2005 to reporting twice weekly and then on 22 September again to daily reporting.

30 The reasons for the delay between arrest and trial are not apparent. The Applicant sought to provide to this Court some evidence in this connection but as the point had not been taken before the trial judge and the evidence is by no means comprehensive, it is not appropriate to take it into account. The Court is thus not in a situation to say that the delay was due to conduct, reasonable or unreasonable on the part of the authorities. Furthermore, mere reporting is not the sort of arduous condition that merits reduction in sentence and daily reporting continued for at most 5 months prior to the Applicant pleading guilty.

31 Nor is the Applicant entitled to any credit for the time he was on bail after pleading guilty. His offending was such that a sentence of imprisonment was inevitable and his being on bail after 22 September 2006 was to a significant degree a matter of choice on his part.

32 This ground fails.

Grounds 1, 3, 4, 5 and 7

1 The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s rehabilitation.

3 The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s strong subjective circumstances.

4 The sentencing Judge failed to take into account the applicant’s contrition.

5 The sentencing Judge failed to take into account or take sufficiently into account, the Applicant’s lack of any prior criminal history.

7 The sentencing Judge failed to take into account the mitigating factors on behalf of the Applicant as required by section 21A (3) of the Crimes (Sentencing Procedure) Act 1999 .

33 The “mitigating factors” identified in support of ground 7, and their paragraph numbers in s21A(3), were:

“(a) There was no substantial loss or damage as a result of the offence. It was always going to be detected and frustrated and no drugs flowed into the community;

(b) The offender does not have any record of previous convictions;
(f) Prior to the offence the Applicant was a person of good character;
(h) The Applicant had good prospects of rehabilitation (and was already taking voluntary steps towards rehabilitation);
(i) The Applicant had shown remorse; and
(k) The Applicant pleaded guilty shortly after the Crown indicated a willingness to accept a plea to the lesser charges in the indictment.

34 The extent of repetition of ground 7 with grounds 1, 3, 4 and 5 is obvious and these grounds may conveniently be considered together.

35 His Honour did in fact refer on more than one occasion to the fact that the Applicant had no record of previous convictions. Although not referring specifically to the Applicant, his Honour also observed that “prior good character, lack of criminal record and established history of employment are of less significance in crimes involving drugs than in other fields of crime”. There were also of course the references to the Applicant’s pleas in the terms I have quoted above. However, otherwise all his Honour said concerning the Applicant’s subjective case was as follows:-

“The offender’s circumstances are recorded in a pre-sentence report dated 10 November 2006. The offender’s counsel has informed me today that there has been no significant change in that his client has not re-offended and has maintained his employment.
There is no doubt that the offender had a traumatic family upbringing and experienced difficult challenges in life from an early age. He was born in Vietnam and experienced some difficulties as a result of the conflict between China and Vietnam. He had one unsuccessful marriage which led to significant financial pressures. He suffered a treatable depression, developed an addiction to gambling and that appears to have been associated with his offending behaviour. He has addressed those issues. There is an issue at the moment as to the insight he has as to his offending behaviour and impact that dealing in trucks (sic) has on the wider community. Nevertheless, it is important that he have supervision to resolve those issues and to continue to address the gambling concerns. I find special circumstances and make an adjustment between the non-parole period that otherwise would be imposed.”

36 In addition to the matters mentioned in this passage, the Pre-Sentence Report referred to the fact that, since being admitted to bail, the Applicant had been working at 2 jobs and had a $3,400 monthly mortgage; that he had attended 2 appointments with a gambling counsellor and more had been arranged; that the Applicant had signed a contract prohibiting him from entering clubs and casinos; and that the gambling counsellor opined that the Applicant needed further intervention. The author of the report said that it was “concerning that (the Applicant) lacked insight into his offending behaviour and the impact that the evils of drugs have on the wider community”.

37 The Pre-Sentence Report also said that in consequence of stress arising from the break-up of the Applicant’s first marriage and his first wife’s financial demands, the Applicant “was spending a lot of time socialising with friends, drinking and gambling. At this point in his life he got in trouble with the law and was imprisoned for a period of 5 months”. It is recorded that he received moral support from his second wife with whom he has an excellent relationship and both they and their 2 children lived in a family home which had been the Applicant’s residence for 10 years. Otherwise the report contained nothing of possible present consequence.

38 The Applicant did not give evidence but executed a statutory declaration that was placed before Taylor DCJ attesting to impressive efforts in adjusting to life in Australia and to his work ethic prior to the break-up of his first marriage. It contains little more than details of matters to which reference has already been made except to indicate that the 5 months imprisonment of which the author of the Pre-Sentence Report spoke would seem to have been the period between the Applicant’s arrest and his admission to bail, that his current wife had visited him in gaol during that period, and that his second marriage occurred in March 2005. The statutory declaration also asserted that the Applicant had learned the lesson of his life and since his arrest had tried very hard to rebuild his life.

39 Other documents showed that the Applicant’s mortgage debt to the bank was, in October 2005, of the order of $560,000, that the interest of the Plaintiff in his house property had, pursuant to the Criminal Assets Recovery Act, vested in the Crown, and that he was regarded by the 2 employers for whom he worked since April and July 2006 as a good employee and trying to put his life back together. A letter from the Applicant’s gambling counsellor and on the letterhead of the “Vietnamese Community in Australia – New South Wales Chapter Inc” disclosed that after the date of the pre-sentence report, the Applicant had continued to attend gambling counselling, had acknowledged that his gambling problem was morally wrong and was “very remorseful about his wrong doing in the past and is willing to change his ways”.

40 A letter from a Buddist monk also recorded involvement with the Applicant and that the latter had expressed his regret and determination to start up his life again. Another letter, signed by some 8 people, referred to the Applicant’s work ethic, remorse, and “good heart to friends and family”.

41 In light of this material, his Honour’s remarks concerning the Applicant’s subjective circumstances were unduly cryptic and do demonstrate an inadequate compliance with the mandatory requirements of s21A that the matters referred to and enumerated in support of ground 7 be taken into account. Thus some of the complaints the subject of these grounds of appeal are made out.

42 Because of the impact that these matters may have on the issues posed for this Court by the ninth ground of appeal, s6(3) of the Criminal Appeal Act and any re-sentencing that may be required, it becomes necessary that I further address them.

43 That there was no substantial loss or damage as a result of the offences is clearly established. This does not of course diminish the Applicant’s criminality and although it is calculated to reduce the demands of retribution, it does not impact on the weight to be given to most of the purposes of sentencing. The Applicant’s prior good character and lack of criminal history were matters to be taken into account on sentencing although, given the deliberate and planned criminality involved in his offences, their weight was significantly less than if the Applicant’s offending had been much more spur-of-the-moment or spontaneous. Of course, his prior character was clearly relevant to his prospects of rehabilitation.

44 The fact that the Applicant did not give evidence was calculated to weaken his claim to be remorseful. A fortiori was this so in light of the remarks in the pre-sentence report to the effect that it was “concerning that (the Applicant) lacked insight into his offending behaviour and the impact that the evils of drugs have on the wider community”. Given that his pleas of guilty were clearly part of a “deal” with the Crown to drop the more serious charges of supplying commercial quantities, it is not possible to draw positive inferences of remorse from them. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477. "(An) inference may be made only as the most probable deduction from the established facts ... " (my emphasis). Here naked self-interest was at the very least as likely an explanation for the Applicant’s pleas as remorse and, particularly given the timing of events, in my view the more probable explanation.

45 On the other hand, the references by a number of others to the Applicant’s remorse cannot be ignored. Those references were not the subject of challenge. There was no positive evidence of lack of remorse and the evidence did indicate that, since being admitted to bail, the Applicant had taken substantial steps to get his life back into order. In my view a finding that the Applicant was remorseful should have been made by his Honour and should be made by this Court. For similar reasons, and because of the Applicant’s second marriage and its circumstances and because of his demonstrated willingness to work, there should be a finding that he has good prospects of rehabilitation.

46 Other matters to which specific attention was directed in the course of the Applicant’s submissions were the Applicant’s loss of direction in life as a result of the financial pressures following on his divorce, his gambling that also ensued and the loss of his house and the moneys found on him at the time of his arrest pursuant to the Criminal Assets Recovery Act or similar legislation. When regard is had to his Honour’s remarks that I have quoted, it is not apparent that his Honour did not give to the first 2 of these the weight they deserved. So far as the Applicant’s gambling is concerned, it must also be remembered that in R v Henry (1999) 46 NSWLR 346 at [203], the Chief Justice, in whose remarks in this regard a majority of the Court agreed, rejected gambling as a mitigating circumstance.

47 Other than in exceptional cases, this Court has taken a similar view in relation to forfeiture of assets pursuant to the Criminal Assets Recovery Act – see R v Kalache [2000] NSWCCA 2 at 77. Here although the Applicant’s house was seized by the Crime Commission but, according to the Applicant’s counsel’s submissions, it was given back when it was realized that there was little or no equity in it. Otherwise, the only property seized seems to have been the moneys found during police searches of the Applicant or his premises. As it seems highly probable that these were either the proceeds of his offending or moneys used in that connection, they certainly do not bring the case within the exceptional category to which reference was made in R v Kalache.

Ground 9
The sentences were manifestly excessive.

48 A convenient starting point for the consideration of this ground is the discount his Honour gave for the Applicant’s pleas. Stating the matter as widely as “in the order of fifteen to twenty percent” as his Honour did has been the subject of criticism in this Court – see R v Knight [2007] NSWCCA 283 - but even adopting the fifteen percent bottom of his Honour’s range was, in the circumstances of this case, excessive.

49 In R v Thomson and Houlton (2000) 49 NSWLR 383 at [152] et seq, this Court made clear that in general the discount for the utilitarian value of a plea should be assessed in the rang of 10-25%, that in determining where in that range a particular case should fall the primary consideration is the timing of the plea, and that a discount towards that bottom of the range is appropriate for late pleas, for example on the date fixed for trial. See also R v Knight at [38]; R v Stambolis [2006] 160 A Crim R 510 at [11] et seq. There was nothing in the circumstances of the case that suggested it was other than the simplest for the Crown to prove and, given that the pleas were only entered some time after the trial had begun, there is no basis for a discount in excess of (approximately) 10%.

50 I turn to other matters. As has been said, the Applicant’s role was a superior one. Indeed it is impossible to conclude other than that the Applicant was a principal in an operation carried on for his own profit. His Honour was also well entitled to find that the quantity the subject of the second count was not less than 150 grams, an amount in the upper half of the range encompassed by the offence for which the Applicant was sentenced. Clearly the Applicant knew of the amounts in which he was dealing. The head sentence for the second offence, even when a proper discount for the Applicant’s plea is added back is but slightly above half the 15 years maximum for which Parliament has provided.

51 Of course, there must also be taken into account the other factors to which reference has been made earlier in these reasons but the matters just mentioned argue against there being any disproportion between the sentence imposed for the second offence and the statutory provision. Furthermore, as has been recognised in a number of decisions of this Court – see R v Amurao [2005] NSWCCA 32; R v Georgiou [2005] NSWCCA 237; R v Sciberras [2006] NSWCCA 268 - the severity of sentences are not simply proportional to their length, longer terms being calculated to have an appreciably greater impact on an offender’s life than shorter ones.

52 Certainly, the sentence for the offence the subject of the second count is high by comparison with the statistics. Those for the higher courts covering the period October 2000 to September 2007 for the supply of less than a commercial quantity of heroin show that in the case of 165 offenders who pleaded guilty, the highest sentence imposed was 7 years imprisonment and this in the case of only one offender. Seven offenders had sentences of 6 years and 8 had sentences of 5 years imprisonment. Four offenders had non-parole periods or fixed terms of 4 years and only one had a higher non-parole period or fixed term, viz one of 6 years. The Applicant may have been the offender with the sentence of 7 years.

53 The statistics for all offenders for the same period show but 2 offenders whose sentences were as high as 7 years and only one whose sentence, 9 years, was higher.

54 However, as I have said in the past, with the concurrence of some though not all of the judges of this Court – see R v Smiroldo (2000) 112 A Crim R 47; R v Amurao [2005] NSWCCA 32; c.f. R v Georgiou [2005] NSWCCA 237; but see also R v Soo [2005] NSWCCA 161 at [17] – there is a deal to be said for the view that the statistics reflect systemic leniency in this area and I prefer to base my conclusion by having regard to the established principles of sentencing in light of the statutory provision.

55 Furthermore, sentences are to be found that clearly indicate that the sentence imposed on the second count are not outside the appropriate range. Thus in R v Amurao this Court imposed a sentence of imprisonment for 5 years including a non-parole period of 2 years on an offender who was described as “anything but a small time player” albeit not a principal for being knowingly involved in the supply of 137 grams of methylamphetamine. In arriving at the sentence imposed, a discount of 30% had been allowed for a plea and assistance and the non-parole period was influenced by considerations of totality. In R v Georgiou this Court upheld a sentence of 8 years including a non-parole period of 6 years imposed for the supply of 105 grams of methylamphetamine by an offender whose role was close to the top of the criminality against which Parliament had legislated. Since R v Adams [2008] HCA 15, it can no longer be argued that the fact that these cases involved a drug other than heroin provides a sufficient ground to distinguish them.

56 The matters to which I have referred in the 2 immediately preceding paragraphs also lead me to the view that the sentence imposed on Nguyen provides no firm basis for a conclusion that the sentence imposed on the Applicant for the offence the subject of the second count is excessive.

57 The sentence on the first count was also not excessive. This is demonstrated by a consideration of the decision of this Court in Derrington v R [2008] NSWCCA 94 and the cases referred to therein in some of which, for offenders having roles not greater than that of the Applicant, and for quantities not significantly different from that involved in his offence, sentences of or exceeding 4 years were not regarded as excessive.

58 Furthermore, the 6 months accumulation of sentences is also far from being excessive.

59 This ground fails.

Conclusion

60 Notwithstanding my conclusion that the sentences imposed on the Applicant were not manifestly excessive, the question arises whether, in light of the errors that Taylor DCJ did make during the sentencing of the Applicant, this Court should interfere. In my view it should not. In the circumstances of this appeal s6 of the Criminal Appeal Act prohibits the Court from doing so unless it concludes that some lesser sentence should have been passed and I am not persuaded that it should.

61 As Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989), “just as those stakes (in the drug trade) are high, so, however, must be the risks if caught”. Particularly so is this in the case of those engaged in profit on their own account, who know the quantities in which they deal, and whose profits, it may be inferred, increase with increased quantity. The Applicant was such a person and he elected to deal in a substantial amount.

62 Accordingly I propose the following orders:

(i) Grant leave to appeal
(ii) Dismiss the appeal.

63 SIMPSON J: I agree with Hulme J.

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