R v Chan

[1993] QCA 20

IN THE COURT OF APPEAL [1993] QCA 020

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1992

T H E Q U E E N

v.

ROBERT WING FONG CHAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Mr Justice Pincus
Mr Justice McPherson

Mr Justice Byrne

Judgment of the Court delivered the 23rd day of February, 1993

Appeal allowed. Set aside the sentences imposed in respect of the charges of unlawfully trafficking in dangerous drugs and of supply of dangerous drugs. In lieu of those sentences, the respondent is sentenced to seven years imprisonment in respect of the trafficking charge and five years imprisonment on each of the charges of unlawfully supplying a dangerous drug.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1992

Before the Court of Appeal

Mr Justice Pincus
Mr Justice McPherson

Mr Justice Byrne

T H E Q U E E N
v.
ROBERT WING FONG CHAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

JUDGMENT OF THE COURT

Delivered the 23rd day of February, 1993

MINUTE OF ORDER:
Appeal allowed. Set aside the sentences imposed in respect of the charges of unlawfully trafficking in dangerous drugs and of supply of dangerous drugs. In lieu of those sentences, the respondent is sentenced to seven years imprisonment in respect of the trafficking charge and five years imprisonment on each of the charges of unlawfully supplying a dangerous drug.

C ATCHWORDS:

Sentence - Trafficking in Schedule 1 and 2 drugs - Supply to undercover officer - Business of drug dealing wholesale level - Guilty plea - Seven years imprisonment.

Counsel:	P. Rutledge for the appellant
S. Herbert Q.C. for the respondent
Solicitors:	Crown Solicitor for the appellant
Crowley and Greenhalgh for the respondent

Hearing date: 3 February 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 334 of 1992

T H E Q U E E N

v.

ROBERT WING FONG CHAN

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

JUDGMENT OF THE COURT
Delivered the 23rd day of February, 1993

The Attorney-General appeals against sentences imposed after the respondent's pleas of guilty to serious drug offences.

The charges and sentences imposed were:

Charges	Sentence
Between 1 January and 10 December	4 years six months
1991, trafficking in lysergide	imprisonment.
("LSD"), a first schedule drug, and in the second schedule drugs amphetamine, methylamphetamine and 4-Bromo-2,5 - dimethoxyamphetamine ("bdma").
Charges	Sentence
Between 11 December and 10 December	3 years imprisonment.
1991, on 15 occasions supplying dangerous drugs. Fourteen of these

transactions involved the

respondent's delivering LSD, bdma, amphetamine or methylamphetamine. The 15th concerned an offer to supply cocaine.

Two counts of possession of	2 years imprisonment.
property (money and a mobile phone) used in connection with the commission of a crime defined in Part II of the Drugs Misuse Act 1986.

An undercover agent met the respondent in late August 1991.
Within the next few months, the respondent sold the agent LSD,
bdma, amphetamine and methylamphetamine. The transactions took
place on 13 days. LSD was delivered on four occasions. 500
tabs of the drug, containing in all .04725 gms, were supplied.
This exceeded 11 times the schedule 3 quantity. Bdma was
involved once. 500 tabs containing a total of 1 gm of bdma
(twice the schedule 3 quantity) were delivered. $14,030 changed
hands for these drugs. Another $33,300 was paid to purchase
433.837 gms of powder containing 51.786 gms of methylamphetamine
(over 25 times the Schedule 3 amount) in nine transactions, and
25.889 gms of powder containing 2.537 gms of amphetamine (more
than the Schedule 3 amount) on one occasion. The respondent
also supplied the agent with an "ounce" of "cocaine" for $5,500.
The substance was actually procaine which is not a dangerous

Those facts were admitted; but before the sentencing Judge
there was a contest as to whether the respondent conducted a
business of drug dealing before he met the undercover agent.
The Crown contended that the evidence disclosed that before
August 1991 the respondent was significant in the drug scene,
regularly trafficking in a range of dangerous drugs at wholesale
level. The respondent testified that he had not dealt in drugs
before meeting the agent.
The Judge found that the respondent had carried on a
business of unlawfully trafficking in dangerous drugs from an
indeterminate time before late August 1991. This conclusion,
which is not challenged before us, was supported by electronic
recordings of the respondent's conversations with the agent and
also with street dealers. In them, and during other
discussions, the respondent spoke of his prior drug deals.
These disclosures, which the Judge regarded as reliable
admissions, included the respondent's telling the agent not long
after their first meeting that the respondent: could "get speed
for $1,800, $2,000 an ounce"; was already owed $16,000 for
amphetamines supplied over three weeks; had previously been
selling as much as 10 ounces a week of "speed" (amphetamine).
(He acknowledged a cost price of $1,800 and a profit of $600 per
ounce); currently dealt in between 2-4 ounces of "speed" weekly;
had ready access to supplies of drugs from contacts in Brisbane,
Sydney and the Gold Coast; and, in relation to LSD, used to
"order 50 tabs each time".
It was not possible to identify the number of individuals
with whom the respondent had dealt nor the range of drugs in
which he trafficked; and the Judge could not determine how much
money had been earned from the illicit business. His Honour was
however satisfied that the respondent was a significant link in
the chain of drug distribution before he met the agent. It was
also shown that the respondent trafficked with others, although
not to the same extent, while supplying the agent.
Having remarked that the circumstances called for a
"substantial deterrent punishment", the Judge approached the
sentence in respect of the trafficking charge in steps. First,
he decided that an appropriate head sentence was imprisonment
for seven years. Next he took into account the eleven months
spent in custody awaiting sentence (allowing, in the
conventional way, one year and ten months). Credit was then
given for the guilty plea. The result was a sentence four years
and six months imprisonment.
The sentence is said to be manifestly inadequate,
particularly having regard to the seriousness of the offence and
that the trafficking in dangerous drugs began before the
introduction to the agent.
Before turning to sentences imposed in other cases, some
other facts should be mentioned. The respondent was a 47 year
old businessman. He is not a drug user. His entrepreneurial
skills were exploited to traffic in a range of drugs in a
substantial way solely for personal gain. The drugs in which he
dealt included a Schedule 1 drug, and the drugs were sold to a
number of people who intended to re-sell them. There was no
contrition. The only significance of the plea of guilty was a
considerable saving in public resources.
Several cases involving serious drug offences were
mentioned in argument. It is sufficient to refer to three of
them to appreciate that the sentence imposed in this case
requires intervention.
Walton (C.A. No. 259 of 1989, 20 November 1991) was an
Attorney-General's appeal decided when the maximum penalty for
carrying on a business of unlawfully trafficking in amphetamine
was life imprisonment. The offender, who was not a drug user,
established a business of the manufacture and wholesale disposal
of large quantities of amphetamine. In four months he derived a
profit of about $200,000 (at a rate of $14,500 per pound).
Walton entered an early plea of guilty and had spent five months
in pre-sentence custody. In 1973 he had been sent to prison for
almost two years for possession of cannabis for sale. The Court
of Criminal Appeal increased the sentence from five to ten years
imprisonment.
Craske (C.A. No. 174 of 1991, 25 September 1991) involved
supplying cocaine, LSD and two Schedule 2 drugs. Over about six
months, the applicant supplied an undercover agent with 1.688
gms of cocaine (three sales), 0.1205 gms of LSD (nine
transactions) and small quantities of the other drugs, the agent
paying about $8,500. Craske was a drug user who made little
pecuniary gain. He pleaded guilty. The Court of Criminal
Appeal declined to disturb a head sentence of six years
imprisonment but added a recommendation for early parole because
of previously good character, the agent had sought out the
applicant to arrange the supplies, and the offender ceased
supply before learning of the agent's identity.
Abdo (C.A. No. 186 of 1991, 5 December 1991) concerned
heroin trafficking by a 36 year old man who, like the
respondent, dealt at wholesale level. He too had access to bulk
supplies. After his conviction at a trial, Abdo was sentenced
to 15 years imprisonment. The evidence against him included
transactions with an agent in which 50 gms of pure heroin
changed hands for $72,000 over less than four months. Abdo,
unlike the respondent, was not shown to have been selling a
range of drugs to a number of dealers.
The seven years which the Judge used as his starting point
is significantly less than the sentence for Walton: someone who
was not dealing in a Schedule 1 drug and whose ten year sentence
reflected a reduction for both five months pre-sentence custody
and a timely guilty plea. The present sentence also presents as
unduly lenient in comparison with the 15 years sentence in Abdo;
and this respondent's conduct deserves more severe punishment
than Craske's.
But for the 11 months spent in pre-sentence custody and the
guilty plea, a sentence of 11 years imprisonment would have been
appropriate. Taking those two matters into account, a sentence
of seven years imprisonment should be imposed.
The sentence in respect of the supply charges was also
unduly lenient. A five year sentence should be substituted.
The two year sentence for the possession offences may stand. and amphetamine and $3,000 for the LSD and bdma. months and three years imprisonment are set aside and instead the respondent is sentenced to imprisonment for seven years in respect of the trafficking charge and five years on each of the supply counts.

drug. Substantial profits were expected from these
transactions: about $10,000 for the sales of methylamphetamine