Hsu v R

[2012] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hsu v R [2012] NSWCCA 248
Hearing dates:	9/11/2012
Decision date:	27 November 2012
Before:	McClellan CJ at CL at [1] Fullerton J at [2] SG Campbell J at [49]
Decision:	Leave to appeal is granted. The appeal is dismissed.
Catchwords:	CRIMINAL LAW - appeal against sentence - supply large commercial quantity of prohibited drug - possession of prohibited firearm - whether unfairness in way supply charge was framed - complaints about legal representatives - whether sentence excessive
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Hamzy v R (1994) 74 A Crim R 341 R v Cramp [2004] NSWCCA 264 R v Gao; R v Lim [2007] NSWCCA 343 Windle v R [2011] NSWCCA 277 Xue v R [2009] NSWCCA 227
Category:	Principal judgment
Parties:	Aaron Hsu (Applicant) The Crown (Respondent)
Representation:	Counsel: Self Represented (Applicant) S Dowling (Crown) Solicitors: Self Represented (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2009/9852
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-08-06 00:00:00 Before: Toner DCJ

Judgment

1. McCLELLAN CJ at CL: I agree with Fullerton J.

1. FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 6 August 2010 following his pleas of guilty to two counts on indictment.

1. The first count alleged that on 28 March 2008 and 16 April 2008 he supplied a large commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is life imprisonment attracting a standard non-parole period of 15 years. A deemed supply of a trafficable quantity of MDMA (10.66 grams) on a Form 1 was taken into account in the imposition of a sentence of 13 years and 6 months, comprised of a non-parole period of 10 years with an additional term of 3 years and 6 months.

1. The second count alleged his possession of a .45 calibre double action pistol contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for that offence is 14 years imprisonment attracting a standard non-parole period of 3 years. Possession of an unregistered firearm (the same pistol) and possession of ammunition were additional offences on a separate Form 1 taken into account in the imposition of a sentence of 4 years, comprised of a non-parole period of 3 years with an additional term of 1 year.

1. The applicant was arrested and charged with the offences on indictment and the firearm offences on the Form 1 on 19 August 2008. He pleaded guilty to the firearms offence on 23 October 2009 and to the drug offence on 5 May 2010 after the matter had been fixed for trial. The sentencing judge allowed a discount of 25 per cent on the firearms offence for what his Honour accepted as an early plea of guilty, and 10 per cent on the supply count.

1. The applicant was remanded in custody from the date of his arrest. Four months of his pre-sentence custody related to a sentence for unrelated drug matters imposed after his remand. His Honour accepted that were the applicant to have been sentenced for the subject offences at that time the sentences would likely have been partially accumulated, which allowed for some adjustment to the commencement date of the sentences he was to impose. He fixed 19 October 2008 as the commencement date for the non-parole period on the second count (to expire on 18 October 2011) with the non-parole period of 10 years on the first count to commence on 19 April 2009 (to expire on 18 April 2019). In the result, an effective sentence of 14 years was imposed comprised of a non-parole period of 10 years and 6 months and an additional term of 3 years and 6 months. The statutory ratio between the head sentence and non-parole period was preserved by reason of the partial accumulation of the two sentences.

The facts for sentencing purposes

1. An agreed statement of facts, signed by the applicant's solicitor and the Crown prosecutor, was tendered from which the sentencing judge made factual findings beyond reasonable doubt.

1. Police conducted a controlled operation into the activities of Bernard Thomas Matthews and Martin Dan in 2007 and 2008. Two police undercover operatives introduced themselves to Matthews from whom they purchased quantities of prohibited drugs.

1. Telephone calls were intercepted which included conversations between Dan and the applicant. On 14 March 2008 he spoke to Dan and asked him "how many" he needed. The conversation continued and both spoke about what type of tablet might be available. On 25 March 2008, the applicant told Dan that he had "new stuff". Dan asked what it was and was told, "It's a brown one, brown handgun ... It's one of the best ones, better than the purple aliens". The applicant explained that it was coming from "the same people". Dan asked if it was still at the same rate and was told it was. The applicant said he was "selling these like hotcakes".

1. As a result of these and other recorded telephone conversations, the applicant agreed with Dan to supply Dan's contact (Matthews) with 1000 tablets.

1. On the night of 25 March 2008 the applicant gave a tablet containing MDMA to one of Dan's associates to be used as a sample. The sample tablet was supplied to Matthews who supplied it to "Alex", a police undercover operative. It contained MDMA, weighed .21 grams and had a purity of 21.5 per cent.

1. On 28 March 2008, the applicant was observed by police walking around a park opposite the Sacred Heart Church on Park Road, Cabramatta at 10.30am. At around 11am he told Dan that he had arrived and was waiting for him.

1. At 11.15am police saw Dan and the applicant together in Bartley Street, a street that runs into Park Road. A short time later the applicant supplied Matthews with 1000 tablets after which Matthews gave the tablets to Alex in exchange for $14,500. The 1000 tablets contained MDMA and weighed 237.6 grams with a purity of 23.5 per cent.

1. On 15 April 2008, at 9.36am the applicant spoke to Dan in a recorded telephone conversation in which it was agreed that the applicant would supply double the quantity of drugs as previously supplied. They agreed to meet at 10am.

1. Sean, another police undercover operative, met with Matthews and drove him to Park Road, Cabramatta arriving at 10.30am. Sean gave Matthews $29,000 for the purchase of 2000 tablets. Sean drove Matthews to the church where the applicant supplied him with 2000 tablets. Matthews gave the tablets to Sean who then drove him back to Liverpool. The 2000 tablets contained MDMA, weighed 494.8 grams, and had a purity of 30 per cent.

1. On 6 March 2008, the applicant was arrested and charged with possession of twelve tablets containing MDMA and two bags of cannabis, weighing a total of 19.3 grams. On 11 April 2008 he was arrested with possession of a small number of tablets that contained MDMA. On both occasions he was in possession of implements to self-administer drugs. He was released to bail on both occasions. The second offence was committed twelve days after the supply of 1000 tablets of MDMA, the subject of the first count, and a week before 2000 tablets were supplied.

1. The applicant used two mobile phone numbers when speaking to Dan to arrange the drug supplies, one of which was in his possession on his arrest in April. When he was arrested on 19 August 2008 for the commercial supplies on 28 March and 16 April 2008, the other mobile phone was seized by police from a person who accompanied him to the police station. One of the mobile telephones had a text message that contained the code that later proved to be for a safe located in the garage of the applicant's home. The safe held a .45 calibre six shot pistol, ammunition, scales and 44 tablets containing MDMA. The MDMA was the subject of the offence on the Form 1. The revolver was unregistered.

1. On 12 September 2008 the applicant was charged with the possession of the pistol, ammunition and drugs located within the safe, and interviewed. He admitted owning the safe and its contents. He said the tablets were for his personal use. One of the plastic resealable bags contained tablets that were identical in appearance to the 1000 tablets supplied on 28 March 2008.

The applicant's criminal record

1. The Crown also tendered the applicant's criminal antecedents which recorded repeated drug offences dealt with in the Children's Court between 1995 and 1997 and a conviction for supplying an indictable quantity of a prohibited drug in the District Court in 2000 which attracted a term of full-time imprisonment. His offending since his release to parole for that offence included multiple driving offences and a charge of possessing implements to affect a forced entry to a motor vehicle, each of which attracted periods of full-time imprisonment. Summary offences of dishonesty were also recorded. His most recent drug offending involved multiple counts of possession of a prohibited drug in quantities commensurate with personal use. It was these offences which attracted the sentences of imprisonment imposed in the Local Court whilst he was on remand and which the sentencing judge had regard to when fixing the commencement date for the sentence on the second count.

The applicant's case on sentence

1. The applicant did not give evidence on sentence. A compendium of materials was tendered on his behalf, the index to which reads as follows:

Report dated 12 July 2010 prepared by Kathryn Wakely, forensic psychologist;

• Psychosocial report dated 15 July 2010 prepared by Mary Jelen, social worker;
• Selection of documents extracted from the applicant's Justice Health records, namely:

a. South Eastern Area Laboratory Services test results dated 7 December 2000 received by MRRC Silverwater;

b. Letter dated 6 March 2004 in relation to contact with inmate HIV positive;

c. South Eastern Area Laboratory Services test results dated 4 June 2004; and

d. Justice Health Medical Alert Form containing reference to post traumatic stress disorder dated 24 August 2008;

• Selection of documents extracted from records produced by the Commissioner of police pursuant to Subpoena, namely:

a. COPS entry E 4357304 in relation to an incident at Minda Detention Centre dated 30 November 1997;

b. COPS entry E 7649712 in relation to stabbing incident in Fairfield on 6 July 1999, together with witness statement dated 7 July 1999;

c. COPS entry E 33733027 in relation to an incident at Star City Casino on 18 May 2008.

The sentencing judge's findings

1. It was the agreed position of counsel at the sentence hearing that the applicant's role in the supply count was as a "bottom to middle of the range wholesaler" which his Honour considered was more aptly described as a "facilitator" or a "commission agent", being someone who sources the drugs on behalf of a purchaser and accounts back to the person from whom they were sourced. His Honour was ultimately satisfied that the appropriate categorisation of the offence was below the middle of the range for offences of its type, albeit only slightly below. He also accepted that while the quantity of drugs supplied was a large commercial quantity as defined in the Drug Misuse and Trafficking Act (as greater than 500 grams), it was toward the lower end of the large commercial quantity. Although his Honour accepted that the applicant was a drug user, he was persuaded (and to the criminal standard) that, in addition to receiving drugs as payment, the applicant was also to receive some monetary reward which was not able to be quantified.

1. In sentencing on the firearms charge his Honour expressly rejected as unpersuasive the reasons advanced by the applicant to police, and then to a psychologist, for his possession of the pistol and ammunition. The applicant claimed that he purchased the firearm and ammunition and stored them in a safe following a spate of home invasions in the area and reports that people had been seen near the residence. He told police that the pistol was for the protection of his family despite the fact that he did not live with his family and had not done so for many years. He said that he purchased the pistol from "some guy for $1,000" and he had the different rounds of ammunition in his possession as he was a collector.

1. The sentencing judge was satisfied that the offending comprehended by the second count fell within the middle range of offences for its type.

1. In dealing with the applicant's subjective circumstances, the sentencing judge made the following findings:

(a) He was born in Taiwan and came to Australia when he was about five years of age with his family who operated a restaurant in Fairfield. (He was 30 at the time of sentence.)

(b) He had abused drugs and alcohol since his teenage years and lived within a drug culture for many years. He was addicted to heroin at the age of 17 and had extensive periods in custody in both juvenile and adult correctional centres for drug-related offending. At the time of the commission of the offences the subject of indictment he was using ecstasy heavily. He is maintained on a methadone programme in the prison system.

(c) He was of above average intelligence with some low scores on psychological testing probably as a result of his formal education being interrupted by detention in juvenile centres and as a consequence of being ultimately excluded from his family home because of his drug taking before completing his schooling.

(d) His employment history was sporadic with some casual work in a supermarket and as a labourer.

(e) He had been the victim of assaults in the past, one attracting a diagnosis of a post-traumatic stress disorder, and had been involved in many physical altercations whilst in custody.

1. His Honour accepted that the applicant's criminal record and the offences for which he was to be sentenced were drug related but regarded the explanations he proffered to the psychologist as an attempt to minimise his involvement, exemplified by the assertions that he was "just helping a mate" coupled with what the sentencing judge described as a facile attempt at reconstruction when he claimed that the offences were "ridiculous ... I got something for somebody and got done for it. If they hadn't have asked it wouldn't have happened".

1. Although his Honour accepted that the applicant acknowledged some level of responsibility for his offending, he was not persuaded that the applicant was remorseful. He also found that the applicant's attitude to his offending (which, in his Honour's view, did little other than to reinforce his attempts to understate his involvement in the offences); his vague and insubstantial plans to avoid recidivism in the future (which were cast in the context of pursuing a new relationship with a woman and her children commenced two months before his arrest); and his lack of any confidence that the prison system would assist him to address his poly-substance abuse, did not allow for a finding that he was unlikely to reoffend or that his prospects of rehabilitation were good. His Honour also noted that both offences were committed whilst the applicant was on bail for possession of drugs.

The appeal

1. The applicant appeared on his own behalf on the appeal. On sentence he was represented by Mr McGrath of counsel instructed by Ms Harris, solicitor.

1. The notice of appeal nominates nine separate grounds of appeal which the applicant addressed separately in his written submissions. He did not advance any oral submissions. Grounds 2 and 3 relate specifically to the quality of his representation at the sentencing hearing although complaints about his lawyers are raised contextually in submissions advanced in support of other grounds. The Crown obtained affidavits from both Mr McGrath and Ms Harris, neither of whom were required by the applicant for cross-examination.

The framing of the first count: Grounds 1, 3 and 6

1. There is a degree of overlap in the grounds of appeal and in the submissions advanced in support of them. For example, Ground 1 contends that the Crown should not have been permitted to allege the supply of large commercial quantity of drugs by aggregating the supply of a commercial quantity of prohibited drugs on two separate dates, while Ground 3 concerns what the applicant claims was wrong advice from his lawyer to the effect that he had to plead guilty to the charge framed in that way. He also relies on that same submission in support of Ground 6 which contends that the sentence on count 1 was excessive. To the extent that the submissions he advanced in support of the first, third and sixth grounds of appeal rely upon that argument, it is rejected. The applicant acknowledged in his written submissions that he was advised by his lawyers of the decision of this Court in Hamzy v R (1994) 74 A Crim R 341 which sanctioned the Crown's decision to frame the charge as it did.

1. His complaint on the appeal appeared to be that there was unfairness in the Crown prosecutor alleging the supply of a large commercial quantity of drugs under s 25(2) of the Drug Misuse and Trafficking Act because the standard non-parole period of 15 years had the effect of exposing him to a penalty greater than that which would have been available to the sentencing judge were he to have pleaded guilty to two separate counts of a commercial supply. That submission is also rejected. Not only does it fail to take into account that a standard non-parole period of 10 years attaches to the supply of a commercial quantity of drugs, and that there would, necessarily, have been some partial accumulation of the sentences were two separate commercial supply counts charged, it also fails to deal with the fact that the Crown prosecutor, in the exercise of his prosecutorial discretion, was entitled to frame the charge on the first count under s 25(2), comprehending as it did the applicant's criminal activity over the course of a period just short of three weeks and the large commercial quantity of drugs he supplied in that time frame.

Grounds 2 and 3: Complaints concerning his legal representatives

1. To the extent that the applicant alleges in support of Ground 3 that his counsel directed him to enter a plea of guilty (or that there was some pressure applied to him to enter a plea of guilty contrary to his instructions), the evidence is overwhelmingly to the contrary. Both his solicitor and counsel have given evidence that after the Crown prosecutor confirmed his intention to present the indictment as framed, the applicant instructed them that he intended to plead guilty despite his preference for pleading guilty to two separate counts of drug supply.

1. I am also satisfied that the other complaints about the quality of his legal representation on sentence are not made out. In summary they are:

(i) that his lawyers refused to follow his instructions that he wanted to give evidence and that were he to have given evidence expressing his remorse the sentencing judge would not have made an adverse finding on that issue (Ground 2);

(ii) that they refused to tender a letter he had written to the sentencing judge with accompanying certificates he had received from courses he had completed whilst on remand, or a letter his family had written (Ground 3); and

(iii) that he did not agree to the facts that were tendered as agreed facts (Ground 3).

1. As to the first complaint, both his solicitor and counsel gave evidence that on the day of the sentence proceedings, after they advised him that he would be cross-examined by the Crown prosecutor about his involvement in the offences were he to give evidence, the applicant gave clear instructions that he did not wish to give evidence. Those instructions are supported by a file note in Ms Harris' file. Mr McGrath observed that in his dealings with the applicant he appeared to accept no responsibility for his actions, displayed no real remorse and consistently downplayed the seriousness of the offences. This reinforced his advice that it was not in his client's interest to give evidence on sentence. Ms Harris gave evidence that the applicant was never told he could not give evidence but rather was advised of the perils should he choose to do so. I accept her evidence and counsel's evidence on this issue.

1. As to the second complaint, the applicant did not tender on the appeal any letter he may have written to the sentencing judge or any letter any member of his family may have written. In her affidavit Ms Harris said she was unaware of any letter from the applicant's family. She did however detail numerous attempts to contact the applicant's brother before ultimately speaking with him a few days before the sentence proceedings. In that conversation he indicated that he could not attend court due to work commitments and did not know what he could say on the applicant's behalf. She forwarded an email to him setting out the matters that he might wish to address in a statement that might then be tendered on his brother's behalf. He prepared that statement which was annexed to Ms Harris' affidavit. In her assessment it would have carried no weight in the sentence proceedings and as his reluctance to assist further was made clear to her she did not contact him again. Having read the handwritten statement, in my view Ms Harris' assessment that the statement would carry no weight on the sentence proceedings was open to her. Ms Harris gave evidence that she had no record, nor any recollection of a letter handwritten by the applicant nor any certificates he had received from courses completed on remand. She said that it was her practice to prepare copies of documents for her file and that no documents of that kind were in the file. I accept her evidence.

1. As to the third complaint, Ms Harris agreed that the applicant did not sign the agreed statement of facts but that at the conclusion of a series of lengthy conferences with respect to the facts upon which he would be sentenced the applicant confirmed that he was ready to proceed to sentence on the facts prepared by the Crown prosecutor. I accept her evidence.

1. In the written submission in support of Ground 3, the applicant directs specific criticism to Mr McGrath. He claims that nothing was done by counsel to advance his interests in the course of the sentencing hearing. Having read the transcript of proceedings before the sentencing judge I am well persuaded that counsel advanced submissions on the applicant's behalf with force and clarity in response to his Honour's questions and generally.

1. In the result, none of the complaints particularised in support of Grounds 2 and 3 are made out.

Ground 4

1. Ground 4 is also rejected. The applicant complains that his Honour should have found special circumstances on the drug offence principally because of his chronic drug addiction and the recommendations of the psychologist and social worker that he would benefit from community-based interventions of various kinds to address his addiction. No separate submission is directed to why a finding of special circumstances should have attached to the firearm offence. An offender's history as a drug user and an expressed willingness to participate in treatment programs may have a material bearing on whether, in a particular case, a finding of special circumstances will be made but it is not determinative of such a finding. Whether or not special circumstances exist involves a range of discretionary considerations into which this Court will be slow to enquire unless the sentence is patently excessive or inadequate (R v Cramp [2004] NSWCCA 264 at [31]). In this case it was open to his Honour to refuse a finding of special circumstances, particularly where he was satisfied that the structure of the sentence allowed for the applicant to address his drug addiction whilst in prison and sufficient time on his release to parole to further any advances he had made as a serving prisoner to remain drug-free.

1. The applicant also submitted that were his lawyers to have tendered what he described as the "medical files from his doctor" a finding of special circumstances would have been made in his favour. On the appeal he tendered a handwritten report from his treating general practitioner, Dr Tan, dated 10 April 2012. In that report the doctor confirms that the applicant consulted him on "several occasions" between 1999 to 2008 for various treatment interventions to address a chronic drug addiction and that he was prescribed methadone at a daily dose of 80 mg before his incarceration in August 2008. In her affidavit Ms Harris details the various agencies from whom she obtained medical records on the applicant's instructions which she then forwarded to the authors of the reports as background material. Although she makes no specific reference to Dr Tan it is reasonable to conclude that he was not nominated by the applicant as his treating doctor.

Ground 5

1. As I understand it, Ground 5 contends that the sentencing judge did not sentence according to the agreed facts; found that the applicant benefited financially from the drug transactions without any evidence to support it; and was selective in the adverse factual findings he made based upon the materials tendered by the applicant because he was motivated by bias. None of those complaints are made out. His Honour's findings of fact were expressly based upon the facts that were agreed and upon rational inferences drawn from those facts. He was entitled to reject the applicant's claim to others that he was simply motivated by friendship in supplying commercial quantities of drugs on two separate occasions and was entitled to take an adverse view of the applicant's attitude to his offending on the question of remorse and his prospects of rehabilitation.

Grounds 6, 7, 8 and 9

1. Grounds 6 and 8 complain that the sentences on both counts were manifestly excessive. Ground 9, which challenges the non-parole period on the drug offence, is a repetition of the complaint that the sentence for the drug offence is excessive.

1. Ground 7, which it is convenient to deal with before considering Grounds 6 8 and 9, concerns what the applicant submits is a lack of parity between his sentence on the first count and the sentences of two unrelated co-offenders which were reviewed by this Court in R v Gao; R v Lim [2007] NSWCCA 343 and Xue v R [2009] NSWCCA 227. No occasion for application of the principles of parity arises in these circumstances. The sentencing judge was referred to the decisions by the applicant's counsel for comparative purposes only. It was counsel's submission that the similarity in the objective facts in Xue's case (he supplied the drugs in the same quantities as supplied by the applicant on two separate occasions with additional charges on a Form 1), and his not dissimilar subjective circumstances, should attract a similar sentence. A non-parole period of 10 years and a balance of term of 3 years and 6 months was imposed on Xue. The sentence in Gao's case was less than that imposed upon Xue. An aggregate non-parole period of 8 years was imposed with a balance of term of 4 years. The Crown appeal against the inadequacy of Gao's sentence was dismissed. At [31] Latham J observed that the sentence, whilst within the range available in the exercise of a broad sentencing discretion, was nonetheless lenient.

1. The applicant submitted that it was the sentence imposed on Gao that should have been urged upon his Honour as the appropriate sentence for comparative purposes and that we should quash his sentence for that reason. I reject that submission. Although the sentence imposed on Gao might have provided guidance in the approach to sentence on the first count, the sentencing judge was not obliged to impose the same or even a similar sentence on the applicant or to approach this Court's dismissal of the Crown appeal as other than a sentence within the discretionary range.

1. The applicant submitted that the sentence on the first count was nonetheless excessive because the quantity of drugs suppled was at the low end of the large commercial quantity; his role was relatively minor and because a more generous discount for the plea of guilty should have been applied when the delay in entering a plea was because of his reluctance to enter a plea to the first count as framed. His Honour made express findings as to the applicant's role as a drug supplier for monetary reward which well justified his assessment of the objective seriousness of the offending. In so far as the discount for the plea is concerned, the sentencing judge was entitled to differentiate between the discount for the pleas of guilty according to the time that they were entered. Even were his Honour informed that the lateness in entering the plea of guilty on the first count was because of the applicant's persistent and ultimately misplaced reluctance to accept that the charge was properly framed (an explanation which in my view carried no weight), it was the fact that the plea was entered after the matter had been listed for trial that deprived it of its utilitarian value. Allowing a discount of 10 per cent was within his Honour's sentencing discretion.

1. The applicant's submission that the sentence imposed on the second count was excessive seems to be based solely his assertion that because the gun was in a locked safe the objective criminality attending his possession was reduced. That argument misunderstands that the offence is constituted by his possession of an unregistered pistol contrary to the Firearms Act not the risk of it being accessed by others. Having rejected the applicant's explanation for his possession of the firearm as untrue the sentence imposed was well within his Honour's sentencing discretion.

1. His Honour expressly and correctly acknowledged the significance of the standard non-parole periods as a benchmark for sentencing purposes on both counts and otherwise applied recognised sentencing principles in imposing the individual sentences and structure of the sentence after partial accumulation. I am not persuaded that either of the sentences are outside the appropriate range of sentences for their kind or that the overall sentence is unreasonable or plainly unjust (Windle v R [2011] NSWCCA 277 at [55]).

1. I reject Grounds 6, 7, 8 and 9.

1. In the result the orders which I propose are:

1. Leave to appeal is granted.

2. The appeal is dismissed.

1. SG CAMPBELL J: I agree with Fullerton J.

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Decision last updated: 29 November 2012