Ly v R

[2008] NSWCCA 262

New South Wales
Court of Criminal Appeal

CITATION:	Ly v R [2008] NSWCCA 262
HEARING DATE(S):	24 September 2008
JUDGMENT DATE:	13 November 2008
JUDGMENT OF:	Beazley JA at 1; Hislop J at 2; Harrison J at 37
DECISION:	Leave to appeal granted; appeal dismissed.
LEGISLATION CITED:	Drug Misuse and Trafficking Act, 1985 Crimes (Sentencing Procedure) Act, 1999 Criminal Appeal Act, 1912
CASES CITED:	GAS v The Queen (2004) 217 CLR 198 R v Blair [2005] NSWCCA 78 R v Gao & Lim [2007] NSWCCA 343 R v MacDonnell (2002) 128 A Crim R 44 R v Chan [1999] NSWCCA 103 Fahs v R [2007] NSWCCA 26 Whittaker v The King (1928) 41 CLR 230 R v Holder (1983) 3 NSWLR 245 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Vi Nang Ly v R
FILE NUMBER(S):	CCA 2007/2986
COUNSEL:	S. Buchen (Applicant) L. Lamprati SC (Crown)
SOLICITORS:	Gregory Goold (Applicant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0175
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	18 May 2007

2007/2986

BEAZLEY JA
HISLOP J
HARRISON J

Thursday 13 November 2008

VI NANG LY v R

Judgment

1 BEAZLEY JA: I agree with Hislop J.

2 HISLOP J:

Background

On 19 April 2007 the applicant pleaded guilty in the District Court to a charge that on 5 September 2006 at Parramatta he supplied a prohibited drug, namely methylamphetamine in an amount of 1101.22 grams being an amount not less than the large commercial quantity contrary to the Drug Misuse and Trafficking Act , 1985, s 25(2). The maximum penalty for this offence is life imprisonment and/or a fine. The standard non parole period is 15 years - Crimes (Sentencing Procedure) Act , 1999, ss 54A-D and table.

3 On 18 May 2007 the applicant was sentenced on the above charge to imprisonment for a non parole period of eight years commencing on 5 September 2006 and expiring on 4 September 2014 with a total term of twelve years expiring on 4 September 2018. Three offences of goods in custody, being cash totalling $331,150, were taken into account on a Form 1.

4 The applicant has sought leave to appeal against that sentence on the ground that the learned sentencing judge erred by finding that the applicant’s offence ‘falls within the mid range of seriousness for offences of this type’.

5 A statement of facts prepared by the police and accepted by the applicant was tendered. The facts, shortly, are:

On 5 September 2006 the applicant was stopped and searched by police. He was found to possess $34,550 in cash and nine active mobile phones. The police then executed a search warrant at the applicant’s home. They located four plastic bags containing a substance that appeared to be methylamphetamine; a further 19 active mobile phones; two sets of scales and further amounts of cash totalling $296,600. Subsequent analysis confirmed that the substance in the plastic bags was methylamphetamine with a total weight of 1101.22 grams; with an estimated street value of approximately $550,000. The purity of the bulk of the drug was 50.5 percent, however one of the smaller amounts of 28.2 grams had a purity of 74 percent and the other smaller amount of 68 grams had a purity of 53 percent.

Taxation documents found at the applicant’s home showed taxable income of between $10,847 and $15,239 for three years from 2003-2006. He also received $533 in Centrelink payments fortnightly. The applicant had been employed part time as a delivery driver since 2002. Further inquiries revealed the applicant and his wife had joint bank accounts with a balance of approximately $418,000.

6 A pre sentence report was tendered which contained the following information: the applicant was born in 1966 in Vietnam; he left Vietnam shortly after the death of his father with his mother and five older siblings in 1978; after two years in a refugee camp in Malaysia, the family arrived in Australia in 1980 and he became an Australian citizen in 1984; he left school halfway through year 10 at the age of 17; he married in 1992 and divorced in 1996; he remarried in 2002 and there are three children to the union; since leaving school the applicant remained in constant employment until he sustained injuries to his hand in an industrial accident in 1986; he resumed employment in 1990 and remained employed in various positions until his arrest; he commenced using cannabis in 1986 and stopped in 1991 or 1992; however, he commenced using crystal methamphetamine, ice, in 2005 and continued using until he was taken into custody; he has self detoxified since arrest and has expressed a wish to remain abstinent from drugs once he is released; the applicant admitted to a significant gambling problem; he claimed his wife was unaware of either the substance abuse or the gambling issue; the applicant told the Probation and Parole officer he committed the offence in order to support his drug habit; he claimed much of the money found in his bank account was derived from gambling winnings.

7 A report from a forensic psychologist was tendered on the applicant’s behalf. The applicant had told the psychologist he started to gamble and was introduced to substance use when he was managing massage parlours. At the time of his arrest, the applicant had a significant drug habit. Whilst in custody he has managed to detox himself but he reported residual symptoms of his substance abuse. The psychologist considered he remained at risk for further substance use. He considered the applicant would need all the support available when he is released.

8 The applicant did not give evidence on sentence. In a letter dated 30 March 2007 tendered on the sentencing hearing, the applicant stated he started taking ice one or two years ago and then started selling the drug until the day he was arrested. He stated it was not until his arrest that he realised the damage he had done to Australian society and the harm he has caused his own family. Since he has been in custody he has had nightmares every night. He feels very, very guilty and he is responsible for all of his wrongdoings. He recognised he deserved punishment by law.

9 Letters were also tendered from the applicant’s mother, brother and wife. The applicant had stated to his mother he became involved through a desire for a secure financial future and gave little consideration to people who might be damaged by the drugs. Like sentiments had been stated to his brother. The family remain supportive of him. Two references from persons who had offered him future employment were also tendered.

10 The applicant‘s criminal record is that in 1982 he appeared in the Children’s Court and received recognisances with respect to charges of malicious wounding and assault; in 1988 he faced two charges of break enter and steal and was dealt with by way of non custodial sentences; in 2000 he received a term of 12 months imprisonment with a non parole period of six months on a charge of assault occasioning actual bodily harm. On appeal, he received a fine in lieu of imprisonment.

11 The plea of guilty was entered initially in the Local Court on 1 March 2007. The applicant received a discount of 25 percent for the utilitarian value of the plea.

12 Her Honour considered that

“with assistance and supervision and counselling when he is released as well as accepting any assistance which may be provided to him whilst he is in custody that the applicant may well have good prospects of rehabilitation.”

13 She found special circumstances in that she considered the applicant would require extended supervision upon release. She concluded:

“It follows that with the plea of guilty and a finding of special circumstances there are reasons for departing from the standard non parole period.”


The appeal ground:

The learned sentencing judge erred by finding that the applicant’s offence “falls within the mid range of seriousness for offences of this type”

14 Her Honour considered:

“…on all of the material which has been placed before me that this is a matter which falls within the mid range of seriousness for offences of this type.”

15 The applicant submitted her Honour was in error in concluding the offence was one which fell within the mid range of seriousness for offences of this type. He contended her Honour should have concluded the offence fell within the low range of seriousness for such offences, and that a lesser sentence than that imposed was warranted in law.

16 Three reasons were advanced in support of the applicant’s submission. They are considered below.

The Crown at the sentencing hearing appeared to concede that the matter fell below the mid range of seriousness

17 At the sentencing hearing the Crown stated:

“Your Honour does need to make a finding as to where [the offence] actually falls in the level of seriousness, whether or not it is in fact, in your Honour’s view, middle range of seriousness. My friend certainly inappropriately [sic?] does rely on the fact that it’s only just over the large commercial quantity in terms of quantum and this is certainly a factor which would reduce the objective seriousness from the mid range, but it is certainly not a matter that your Honour should give undue weight to. …when you’re considering the level of objective seriousness, in the Crown’s submission it would be getting close to middle of the range for seriousness. I’m not suggesting it is middle of the range, but it certainly isn’t bottom of the range…”

18 Her Honour did not, in the course of the sentencing hearing, expressly or implicitly, accept that submission.

19 In GAS v The Queen (2004) 217 CLR 198 the High Court held (at [30]-[31]):

“…it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts…It is for the judge, assisted by the submissions of counsel, to decide and apply the law…The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel.”

20 Her Honour was required to make an independent assessment of the objective seriousness of the matter notwithstanding any concession by the Crown that the matter may have been slightly below the mid range. No error is demonstrated in this regard.

The quantity of drugs involved was very close to the large commercial quantity threshold applicable to methylamphetamine

21 The quantity of drugs was 101.22 grams above the large commercial quantity. There is no upper limit to large commercial quantities.

22 The applicant submitted that the fact that the weight of the prohibited drug does not significantly exceed the threshold in the Drug Misuse and Trafficking Act is to be considered as a relevant factor in assessing where a particular offence is placed within the spectrum of seriousness for supply offences, for example see R v Blair [2005] NSWCCA 78 at [56]; R v Gao & Lim [2007] NSWCCA 343 at 25.

23 The quantity of the drugs is a relevant factor. However it is not the sole, or even the principal, determinant of the sentence. The role of the offender is more important, as is the level of his or her participation in the offence: R v MacDonnell (2002) 128 A Crim R 44.

24 Her Honour in her remarks on sentence expressly took into account the quantity of the drug and that “it was approximately 100 grams over the large commercial quantity of one kilogram”. No error in this regard is demonstrated.

There was no actual supply of the drug

25 It was submitted for the applicant that her Honour was

“obliged to have regard to the fact that the drug was not actually supplied to anybody. This had the consequence that the narcotics were never disseminated into the community. Further, there was no evidence that the drugs were the subject of a contemplated supply or an agreement to supply. The criminality of the offender in the applicant’s position will generally be lower than that of an offender who has progressed further down the path towards an actual supply transaction. Evidence that there was no actual supply has also been considered a relevant factor in assessing where a particular offence is placed within the spectrum of seriousness for large commercial quantity supply offences: for example, see Fahs v R [2007] NSWCCA 26 at [20]; cf R v Gao & Lim at [22].”

26 That the drugs were not disseminated into the community is a relevant factor, the weight of which will vary from case to case: see R v Chan [1999] NSWCCA 103 at [21]; Fahs v R [2007] NSWCCA 26 at [29]; R v Gao at [22].

27 Whilst the drugs found in the applicant’s possession were not actually disseminated by the applicant into the community, the applicant was to be sentenced for deemed supply in circumstances where it was clear that this was not an isolated occasion of the possession of drugs for the purpose of supply. In the circumstances, little, if any, weight can be attached to the fact that these drugs were not actually supplied.

Conclusions

28 Her Honour, in concluding that the offence was within the mid range of seriousness for offences of this type, gave particular weight to the applicant’s role, knowledge and level of participation. She expressly had regard to the indicia found in his home (ie, the digital scales, both large and small, a kilogram gross weight), the large amount of money found at the premises as well as the large amount of money in his bank accounts, the 28 mobile phones found in his motor vehicle, shoulder bag and premises, the letter to the court stating that he had been selling the drug for some time and, indeed, had been selling the drug up until the day he was caught, that he was selling the drug because of his greed for easy money, and that the value of the drug was in excess of $500,000. She concluded he did not fall within the category of a user dealer in view of the very large sums of money that were found in the house together with other indicia, and that he was involved in the business of supplying drugs.

29 Her Honour was required to take into account the matters on the Form 1 in determining the sentence, which she did.

30 The sentencing discretion is a wide one. In my opinion, having regard to all of the relevant factors, her Honour’s conclusion that the offence should be categorised as in the mid range of seriousness for offences of this type was open to her.

31 In the end result, the non parole period imposed was 8 years, reflecting a starting point before the discount for the plea of 25 percent of 10 years and 8 months compared to the 15 year standard non parole period. The applicant also received a finding of special circumstances and the non parole period was 66.7 percent of the total term. There was therefore a clear allowance made for the applicant’s subjective features, including his plea.

32 The sentence imposed by her Honour is in conformity with other sentencing decisions referred to by the applicant and is not shown to lie outside the relevant range of sentences. The Judicial Commission statistics since the advent of the standard non parole period in respect of this offence are not of assistance because of the small number of cases to which they refer.

33 The decision of the primary judge must be regarded as prima facie correct - Whittaker v The King (1928) 41 CLR 230 at 249, R v Holder (1983) 3 NSWLR 245 at 253 B-E.

34 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79].

35 In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.

Orders

36 I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

37 HARRISON J: I agree with Hislop J.

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