R v Chang - [2014] NSWDC 297

District Court

New South Wales

Medium Neutral Citation: R v Chang [2014] NSWDC 297
Decision date: 03 October 2014
Jurisdiction: Criminal
Before: Cogswell SC DCJ
Decision:
Sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years.

Catchwords: CRIMINAL LAW - particular offences - drug offences - supply prohibited drug - heroin - commercial quantity - undercover police operation - no evidence of capacity to supply the drugs - satisfied beyond reasonable doubt of intention to supply - not a “rip off” - sentence - relevant factors - no prior criminality - offence committed while on bail - gravity of offence - lower end of range of objective seriousness - did not involve drugs going into the community - response to charges - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - first time in custody - custody in a foreign country - limited English - few visitors - aggregate sentence
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 39P
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases Cited: R v DW [2012] NSWCCA 66
Category: Sentence
Parties: Regina (Crown)
Chun-Chi Chang (offender)
Representation:
Counsel:
L Brasch (offender)
Solicitors:
Office of Director of Public Prosecutions (Crown)

File Number(s): 2013/00373224

Judgment

I am sentencing Chun-Chi Chang. He has pleaded guilty to two serious crimes. Both of them are supplying heroin, one of them in a commercial quantity. Supplying heroin is an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum of 15 years’ imprisonment.
Supplying the same drug in a commercial quantity is an offence against subs (2) of the same section. Parliament has fixed a maximum of 20 years imprisonment to that offence. Not only that, Parliament regards that crime as so serious that it has fixed a standard non-parole period of ten years imprisonment to that crime.
Mr Chang pleaded guilty at the first opportunity. In this State he gets a significant benefit for that. The ultimate sentence which I impose will be reduced by 25% because of his assistance to the administration of justice.
First I should say something about what happened which brought about the charges. They are set out in a statement of facts contained in exhibit A. There was a police undercover operation. Two men were involved - a police informer and an undercover police officer. The three men met in the Auburn RSL car park on 3 December 2013. The undercover officer bought two and a half grams of heroin from Mr Chang for $1,500. That sale amounts to the first offence. The facts say that the purpose of that purchase was as a “sample”.
It was then agreed that Mr Chang would sell to the police undercover officer a “block” of heroin. They agreed on a price of $95,000. The conversation amongst the three men was recorded on a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chang

Details

AGLC: R v Chang [2014] NSWDC 297
Case: [2014] NSWDC 297
Decision Date: 03 October 2014

CaseChat Overview and Summary

In the case of R v Chang, the defendant was charged with the supply of a commercial quantity of a prohibited drug, specifically heroin, during an undercover police operation. The dispute was heard and determined by the relevant court. The central legal issues revolved around the defendant's capacity to supply the drugs, the intention to supply, and the nature of the transaction, which the defence attempted to characterise as a "rip off". The court needed to determine if the prosecution had proven beyond reasonable doubt that the defendant intended to supply the drugs and whether the transaction was more than a mere "rip off".

The court found that, although there was no direct evidence of the defendant's capacity to supply the drugs, the circumstances were sufficient to infer the intention to supply. The court was not persuaded by the "rip off" argument, concluding that the defendant's actions amounted to an intention to supply the drugs. The court also considered various sentencing factors, including the defendant's lack of prior criminal history, the fact that the offence was committed while on bail, the gravity of the offence, and the defendant's plea of guilty at the earliest opportunity, which resulted in a 25% discount. Special circumstances, such as the defendant's first time in custody, custody in a foreign country, limited English proficiency, few visitors, and other relevant factors, were also taken into account. Based on these considerations, the court imposed a sentence within the lower end of the range of objective seriousness for the offence, considering that it did not involve drugs entering the community.

The defendant was sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years. The court's decision was based on a careful analysis of the evidence, legal principles, and relevant sentencing factors, ensuring that the sentence was proportionate to the offence and the circumstances of the defendant.

Orders

Orders of the court

Sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Chang [2014] NSWDC 297
Decision date:	03 October 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years.
Catchwords:	CRIMINAL LAW - particular offences - drug offences - supply prohibited drug - heroin - commercial quantity - undercover police operation - no evidence of capacity to supply the drugs - satisfied beyond reasonable doubt of intention to supply - not a “rip off” - sentence - relevant factors - no prior criminality - offence committed while on bail - gravity of offence - lower end of range of objective seriousness - did not involve drugs going into the community - response to charges - plea of guilty at earliest opportunity - 25% discount - special circumstances for adjusting ratio between head sentence and non-parole period - first time in custody - custody in a foreign country - limited English - few visitors - aggregate sentence
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 39P Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases Cited:	R v DW [2012] NSWCCA 66
Category:	Sentence
Parties:	Regina (Crown) Chun-Chi Chang (offender)
Representation:	Counsel: L Brasch (offender) Solicitors: Office of Director of Public Prosecutions (Crown)
File Number(s):	2013/00373224