R v Chan CHAO

[2008] NSWDC 127

CITATION:	R v Chan CHAO [2008] NSWDC 127
HEARING DATE(S):	2 May 2008
EX TEMPORE JUDGMENT DATE:	2 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment with a non parole period of two years and three months to commence on 3 October 2007 and a head sentence of three years. The non parole period will expire on 2 January 2010 on which day the offender is to be released to parole.
CATCHWORDS:	CRIMINAL LAW - sentence - supply prohibited drug - ecstasy - significant criminality - on parole at time of offence - no genuine remorse
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Chan Chao
FILE NUMBER(S):	DC 2008/11/0142
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 Chan Chao appears for sentence today having pleaded guilty in the Local Court to an offence of supplying a prohibited drug. The prohibited drug was ecstasy, in tablet form, a total of 16.9 grams in sixty-one tablets.

2 The offender was detected when he committed a driving offence. Police stopped the car driven by the offender, and due to the strange behaviour that he displayed and that of his passenger, they decided to search the vehicle. They there discovered a number of important things, in particular the ecstasy tablets, some cash and a number of separate plastic bags. They interviewed the offender and he said that the drugs were all for his own use, a somewhat remarkable proposition given the number of drugs found.

3 Despite his plea of guilty the offender maintained that position when he spoke to an officer from the Probation and Parole Service. He said to her or him that the drugs were for his own use, he was using eight to ten per day. This failure to be frank is a matter which has flowed through the sentencing proceedings even today. The offender was asked by the Crown in cross-examination some questions regarding where he got the money to buy the ecstasy tablets from. The offender said that the money came from him having pawned a gold necklace which his mother had previously given him. The Crown then asked about the money found with the drugs in the car, a sum of about $1,800. And the offender said that that money was not his. He suggested that it was his girlfriend’s and had to be used to pay off her credit card. After further questioning in which I asked the offender to explain why it was that he would hold onto money which belonged to his girlfriend the offender eventually admitted that he had been telling lies.

4 I am satisfied that the money was related to drug supply. When I say the money, I mean the money found in the car. I am satisfied that the offender is a person who comes clean with the truth only after he has been found out. I do not accept that he purchased the drugs only after hocking a gold necklace. I note the absence of any supporting documents to suggest that that is the case.

5 I do not accept that his supply activities were limited in the way he said in evidence today. He said that he was going to supply at cost to his friends and for profit to others. I am satisfied that the offender was prepared to engage in numerous separate acts of supply for profit. If he was to sell the ecstasy tablets a couple or a few at a time it means that he was prepared to engage in many separate drug supply transactions as evidenced by the numerous plastic bags to be found in photograph 14 of ex A. The offender was a significant drug dealer.

6 He has already served time in custody for other matters, they relating to offences of dishonesty. Indeed he says it was whilst in custody that he first began himself taking ecstasy tablets. The offender committed his dishonest offences in the past in order to make money. I am satisfied that he committed the offence for which I am about to sentence him also in order to make money. He has shown a willingness to engage in significant criminality in order to profit.

7 The offender is now thirty-one years of age. He came from Cambodia with his family when he was quite young. He is, as Mr Priddis put it, the only member of his family to go off the rails. As he was growing up he was subject to violence at the hands of his father and saw his mother also being subject to violence from her husband.

8 He completed his high school getting a TER of about 76 and has worked on occasions since then. He left home for a while when he was about fifteen but eventually he came back to live with his parents and was still living there when he was arrested on this matter.

9 He has a hearing problem and this will make his time in custody harder than would otherwise be the case. I have taken that matter into account.

10 He also appears to have had a problem with gambling in the past and it was suggested that he committed his earlier fraud offences in order to pay off gambling debts. No such suggestion was made in the present case.

11 One very significant matter is that the offender was on parole at the time he committed this offence. Indeed he had been released from custody only a few months before. This failure to take advantage of the leniency that was offered to him on that occasion is one which I propose to reflect in making a finding that there are no special circumstances in this case. Special circumstances were found when he was earlier sent to prison but all that has done is to enable the offender to have earlier committed fresh offences. That is why I say he took advantage of the leniency that was offered to him on that occasion.

12 The offender said that he was remorseful but in a way which to me sounded rehearsed rather than genuine. Given that he tried to mislead the court on other matters I am satisfied that he has not discharged the onus which lies upon him of satisfying me that he is genuinely remorseful.

13 I cannot find, for the same reason, that he has good prospects of rehabilitation or is unlikely to offend in the future. The very fact that he committed this offence only a short time after being released from custody is a significant impediment to him persuading me that he has reached the cross-roads of his life and is prepared and capable of living a law abiding life in the future. He did plead guilty at an early stage and so I will discount the sentence I would otherwise have imposed by twenty-five per cent to reflect the utilitarian value of his plea.

14 Like almost drug supply offences this was planned and organised. The plastic bags that the offender had in his possession clearly show a degree of planning such that he was prepared to go to places where people would want to buy drugs and supply them to such drug users. As I have said the offender was in this to make money, or in terms of s 21A Crimes (Sentencing Procedure) Act 1999 financial gain, which is not a factor in all drug supply offences but is in most of them. The reason I have mentioned that most drug supply offences are planned or organised or involve financial gain is because I want to emphasise I will not be double counting despite the reference to such factors in s 21A.

15 This is a serious matter committed by a person who, as I have said, has shown a willingness to engage in significant criminality in order to make money. A sentence which reflects the objective gravity of his conduct must be imposed. It must be such as to bring home to the offender the consequences of further offending. It must be one which also has the effect of deterring others who might be tempted to act in the way the offender has. There was no suggestion made that anything other than a sentence of full time custody was appropriate.

16 The offender is sentenced to imprisonment. I set a non parole period of two years and three months to commence on 3 October 2007. It will expire on 2 January 2010 on which day the offender is to be released to parole. I set a head sentence of three years.

17 Any other matter Mr Crown?

18 ALLISON: Your Honour the Crown seeks a drug destruction order for the drugs.

19 HIS HONOUR: Right, the drugs can be destroyed.

20 ALLISON: Your Honour the Crown asks that sequence 3 of charge number H31495423 be dismissed.

21 HIS HONOUR: Right, I’ll dismiss that.

22 ALLISON: That is a back up possession charge. The Crown also asks that sequence 4 of the same charge sequence be dismissed. That’s a possess prescribed restricted substance but the substance is not a prescribed restricted substance.

23 HIS HONOUR: That is the drug cialis?

24 ALLISON: Yes your Honour.

25 HIS HONOUR: Right well I will dismiss that matter.

**********