R v Cao

[2012] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAO

[2012] SASCFC 32

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Anderson)

17 April 2012

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - PARITY BETWEEN CO-OFFENDERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - IRRELEVANT FACTORS

Appeal against sentence – appellant sentenced for trafficking in a controlled drug contrary to s 32 of the Controlled Substances Act 1984 (SA) (‘CSA’), namely methamphetamine or heroin – co-offender plead guilty to one count of trafficking in a commercial quantity of heroin, contrary to s 32(3) of the CSA – appellant committed a related antecedent offence in 2006 – appellant on parole for antecedent offence at the time of committing this offence – unexpired balance of the previous sentence was two years, two months and five days – sentencing Judge imposed a sentence of imprisonment for seven years to be served cumulatively upon the unexpired balance of the previous sentence, and reduced this by five months and 19 days to take into account the time the appellant had spent in custody – this resulted in a sentence of imprisonment of six years, six months and 11 days – the total head sentence was eight years, eight months and 16 days with a non-parole period fixed at six years, six months and 11 days.

The issue on appeal was whether the sentence was manifestly excessive – whether the sentencing Judge should have been guided by historical amendments to s 32 of the CSA that reduced the maximum sentence for the offence from 25 years’ imprisonment to 10 years’ – whether the sentencing Judge erred in the application of the parity principle – whether it was desirable for the same judge to sentence both the appellant and his co-offender – whether the sentencing Judge erroneously took into account and sentenced as if the offence was one involving a commercial quantity of the drug in relation to the appellant.

Held: the sentencing Judge should not have been guided by historical versions of s 32 of the CSA – there was no support for the suggestion that the sentencing Judge erred in the application of the parity principle – it was appropriate for the same judge to sentence both offenders – there was no reason to think that the sentencing Judge erroneously took into account and sentenced as if the offence involved a commercial quantity of a controlled drug.

Appeal dismissed.

Controlled Substances Act 1984 (SA) s 32, s 32(1), s 32(1)(d) (now repealed), s 32(2), s 32(2a), s 32(3); Controlled Substances (General) Regulations 2000 (SA) reg 5, reg 6, referred to.

R v CAO
[2012] SASCFC 32

Court of Criminal Appeal:   Doyle CJ, Vanstone and Anderson JJ

1. DOYLE CJ:  Mr Cao was sentenced by a District Court Judge for the offence of trafficking in a controlled drug, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the CSA). He appeals against the sentence on the ground that it is excessive. A single Judge granted him permission to appeal.

2. Mr Cao was sentenced at the same time as Mr Lam.  One of Mr Cao’s complaints relates to the comparison between their sentences. 

3. In July 2009 Mr Lam was apprehended by police. He was driving from Melbourne to Adelaide. Police found heroin and methylamphetamine concealed in his car. He was charged with one count of trafficking in a commercial quantity of heroin, and one count of trafficking in methylamphetamine. The former charge attracted a maximum penalty of a fine of $200,000 or imprisonment for 25 years or both. The latter offence attracted a maximum punishment of $50,000 or imprisonment for ten years or both. The offences were charged under s 32(2) of the CSA and s 32(3) respectively. Mr Lam pleaded guilty.

4. The Judge sentenced each of them on the following basis.  Mr Lam had gone to Melbourne pursuant to an arrangement between him and Mr Cao.  Mr Lam was going to get drugs there.  Mr Lam was going to deliver the drugs to Mr Cao or as directed by him.  Mr Lam was described by the Judge as a “courier”, but one who was entrusted with significant responsibilities and a significant amount of money.  He was to be released from a debt of $10,000 that he owed to another man, by way of reward for his participation in the offence.

5. Mr Cao advanced a little over $99,000 to Mr Lam to purchase the drugs.  The Judge accepted that the entire consignment would have cost about $120,000, and so Mr Cao was not the sole financier.  Nevertheless, as the Judge said, he contributed a very significant amount of money and sufficient, had it been applied just to the purchase of heroin, to purchase a commercial quantity of heroin.  The Judge was satisfied that the drugs were intended by Mr Cao for sale at the street level, sales that would have involved many transactions.  The Judge found that Mr Cao was planning to make a very substantial profit from the transaction.

6. The Judge accepted that the offences were isolated transactions. 

7. Mr Lam was about 45 years of age.  After a difficult time in Vietnam, he came to Australia about 20 years ago after time in a refugee camp.  He had little education and did not speak English.

8. Mr Cao was 40 years of age. He also, after a difficult time, came to Australia when he was about 14 years of age. He was divorced with four children. Significantly, in 2006 he was sentenced to imprisonment for five years and three months, with a non-parole period of two years, for the then offence of possessing heroin for the purposes of sale. He was on parole for that offence when he committed the offence now under consideration. The maximum penalty that he faced was imprisonment for ten years or a fine of $50,000 or both, the offence falling under s 32(3) of the CSA.

9. Mr Cao did not plead guilty.  He was found guilty by a jury.

10. The Judge sentenced Mr Lam to imprisonment for five years and six months.  But for the plea of guilty he would have sentenced him to imprisonment for seven years.  He fixed a non-parole period of three years six months.

11. Mr Cao was liable to serve the unexpired balance of the previous sentence.  That was a period of two years, two months and five days.  The Judge imposed a sentence of imprisonment for seven years for the offence dealt with by the Judge.  That was to be served cumulatively upon the unexpired balance of the previous sentence.

12. The Judge noted that this additional sentence and the non-parole period would be reduced by five months and 19 days to take into account the time Mr Cao had spent in custody.  It would have been better if the Judge had specified the sentence that he was imposing, rather than leave it to others to make the calculation.

13. On my calculations, the sentence imposed by the Judge was a sentence of imprisonment for six years, six months and 11 days.  The total head sentence was eight years, eight months and 16 days.  The non-parole period was six years, six months and 11 days.

    Submissions on appeal

14. Section 32 of the CSA was recast in 2007. It now relevantly provides:

    32—Trafficking

    (1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence. 

    Maximum penalty: $500 000 or imprisonment for life, or both.

    (2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.

    Maximum penalty: $200 000 or imprisonment for 25 years, or both.

    (2a) A person who, in a prescribed area, traffics in a controlled drug is guilty of an offence.

    Maximum penalty: $75 000 or imprisonment for 15 years, or both.

    (3) A person who traffics in a controlled drug is guilty of an offence.

    Maximum penalty: $50 000 or imprisonment for 10 years, or both.

    As can be seen, offences under s 32 are now graded according to the quantity of the controlled drug in question. The statutory scheme is completed by the Controlled Substances (General) Regulations 2000 (SA).  Regulation 5 provides for controlled drugs to be identified by declaration.  Regulation 6 provides for the specification of the quantity of a particular controlled drug that will be a large commercial quantity or a commercial quantity.  At the risk of over-simplifying things, the differences between different controlled drugs in terms of their potential for harm is accommodated by adjusting upwards or downwards the quantity of the drug that will put an offence involving that drug into the category of commercial quantity or large commercial quantity.  This appears from the Schedule to the Regulations.

15. Mr Algie SC, counsel for Mr Cao on appeal, referred to the statutory changes. He made the point that under the former regime Mr Cao’s offence would have been an offence of taking part in the sale of a prohibited substance, contrary to s 32(1)(d) of the CSA, and that the offence would have attracted a maximum punishment of 25 years’ imprisonment. He then referred to certain statistics relating to the sentences imposed for offences against s 32 in the year 2007, immediately before the section was recast. He argued that as Mr Cao’s offence now attracted a maximum of 10 years’ imprisonment, rather than a maximum of 25 years’ imprisonment, one would expect the sentence to be a lesser sentence than the offence would have attracted under the former regime. He seemed to argue that the Court could make use of the sentencing statistics for the 2007 year, to guide itself to a sentence influenced by those statistics. The precise manner in which this was to be done was not clear to me.

16. I do not accept this process of reasoning. It is true that the section has been recast. But it suffices to say that Mr Cao was sentenced for an offence that attracted a maximum punishment of a fine of $50,000 or imprisonment for ten years or both. The recasting of s 32 to establish a regime which is quantity based suggests nothing at all in relation to a comparison between sentences under the former regime and sentences under the present regime. All one can say is that Mr Cao faced a maximum term of imprisonment of ten years.

17. The next criticism by Mr Algie is that the Judge used as a starting point seven years’ imprisonment for Mr Lam and for Mr Cao, notwithstanding the circumstance that Mr Lam had pleaded guilty to two offences, one of which attracted a maximum term of imprisonment for 25 years.  There is no reason at all to think that the Judge turned the parity principle on its head, and sentenced Mr Lam and Mr Cao on the basis that their sentences should be equal.  There is simply no support for that suggestion.

18. In fact, there were significant differences between the circumstances of Mr Lam and Mr Cao, entitling the Judge to treat Mr Lam’s offending as warranting punishment at a lower point within the scale of punishment that he faced, than did Mr Cao’s offending.  That is, there were circumstances that entitled the Judge to treat Mr Cao’s offending as higher in the range of seriousness for the offence for which he stood to be sentenced.

19. Mr Lam was a first offender.  Mr Cao had a prior conviction for a serious offence, and had previously been imprisoned for that offence.  He was on parole when he committed the offences now under consideration.  Mr Lam’s expected gain was forgiveness of a debt of $10,000.  Mr Cao invested almost ten times that amount, aiming to make a large profit on his investment.  While Mr Lam was more than a courier, because he had been involved in negotiations to purchase the drugs, the circumstances supported an approach that treated Mr Cao’s involvement as a greater or more serious involvement than that of Mr Lam, while recognising, as one must, that Mr Lam pleaded guilty to two charges, and faced a higher maximum punishment.  In my opinion, the starting point selected by the Judge in relation to Mr Cao is not suggestive of any error on his part.

20. The same applies to the circumstance that Mr Cao’s non-parole period was a higher proportion of his head sentence than Mr Lam’s non-parole period.  That is undoubtedly attributable to his previous conviction.

21. The Judge who sentenced Mr Cao was not the Judge who presided over his trial.  It was the Judge before whom Mr Lam pleaded guilty.  Mr Algie did not complain about this as such, but argued that it supported a conclusion that the Judge had erred.  I disagree.  It was desirable that the same Judge sentence these two men.  There is no reason to think that the circumstance that the Judge was not the Judge before whom Mr Cao was tried led that Judge into error.

22. There is one other complaint made by Mr Algie.  In the course of his sentencing remarks, the Judge referred to the circumstance that the money provided by Mr Cao would have been, or might have been, sufficient for the purchase of a commercial quantity of heroin.  Mr Algie submitted that the Judge’s reference to this indicates that in some way he was distracted, and sentenced as if the offence was one involving a commercial quantity of the drug.  It suffices to say that there is no reason to think that that criticism is correct.

23. The sentence that the Judge imposed was a heavy one, bearing in mind the statutory maximum.  But the offending was serious, and Mr Cao’s involvement was substantial.  His prior offence, and the circumstance that he was still on parole for that offence, speaks for itself.  I am not persuaded that the Judge erred.

24. I would dismiss the appeal against sentence.

25. VANSTONE J:     I agree that the appeal against sentence should be dismissed and I agree with the reasons provided by the Chief Justice.

26. ANDERSON J:     I agree that the appeal should be dismissed for the reasons given by the Chief Justice.