R v Che

[2014] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CHE

[2014] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Bampton)

2 April 2014

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

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - SENTENCE: WHAT CONSTITUTES

The appellant pleaded guilty to trafficking in a commercial quantity of heroin, trafficking in heroin and two counts of money laundering committed in December 2011.  The appellant also pleaded guilty to trafficking in methylamphetamine, possession of a firearm, a further count of money laundering, possession of OC spray and possession of Xanax, committed in February 2012 while on bail for the initial offences.  The appellant's role in trafficking was higher in the chain than a street dealer.  The appellant was sentenced to ten years' imprisonment with a non-parole period of seven years' imprisonment.  The appellant contended that the non-parole period was manifestly excessive.  The sentencing Judge had regard to all relevant factors.  No error demonstrated.

Held:  Appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Creed (1985) 37 SASR 566; R v Miller [2000] SASC 16; R v Shrestha (1991) 173 CLR 48, applied.

R v CHE
[2014] SASCFC 28

Court of Criminal Appeal:       Kourakis CJ, Sulan and Bampton JJ

1. KOURAKIS CJ:                I would dismiss the appeal for the reasons given by Sulan J.

2. SULAN J:             The appellant, Tuan Van Che, pleaded guilty to two series of offences involving trafficking in heroin, trafficking in methylamphetamine, money laundering and possession of a firearm.

3. The offences to which he pleaded guilty involved two separate incursions into drug trafficking, the second occurring at a time when the appellant was on bail for the first series of offences.  The Judge imposed one sentence for all offences of ten years’ imprisonment, with a non-parole period of seven years’ imprisonment, to commence on 30 June 2012.

4. The only ground of appeal upon which the appellant relies is that the non‑parole period is manifestly excessive.  The appellant submits that the sentencing Judge failed to give appropriate weight to the appellant’s guilty plea, his prospects of rehabilitation, his personal circumstances, and his lack of criminal antecedents.

   Background

5. The first series of offences to which the appellant pleaded guilty were trafficking in heroin and trafficking in a commercial quantity of heroin, committed in December 2011.  The maximum penalties for the two offences are $50,000 or ten years’ imprisonment, or both, and $200,000 or 25 years’ imprisonment, or both, respectively.  The appellant also pleaded guilty to two counts of money laundering, both committed on 14 December 2011, one in the amount of $23,600 and the other in the amount of $89,900.  The maximum penalty for each offence of money laundering is 20 years’ imprisonment.

6. The circumstances leading to the arrest of the appellant are that the police were conducting an operation involving trafficking in drugs.  As part of that operation, police had under observation two persons who were street dealers in methylamphetamine and heroin.  As part of the investigation, the police monitored telephone calls and messages and conducted surveillance of the two street dealers.  They were observed going to the house of Tam Van Nguyen, who was providing the dealers with drugs.  Police also became aware that the appellant was involved in supplying drugs to Nguyen, who on-supplied the drugs to the dealers. 

7. The appellant was regarded as a person who was further up the chain of responsibility in the supply and trafficking of both heroin and amphetamines.

8. On 14 December 2011, the police observed one of the street dealers, a female, leaving Nguyen’s house.  She was apprehended and found to be in possession of a quantity of heroin.  Her co-dealer was also arrested on that day when police searched the house in which the two dealers resided and found a quantity of heroin and methylamphetamine.  Police also searched Nguyen’s premises and found large quantities of heroin and cash. 

9. The sentencing Judge concluded that all participants, including the appellant, were part of a well-organised commercial syndicate to sell methylamphetamine and heroin.  He concluded that the two dealers were involved at a lower level than Nguyen, who was at a lower level of the chain than the appellant.

10. During their investigation, police observed the appellant attend at Nguyen’s house on two occasions on 14 December 2011.  On each occasion, it was admitted that he supplied heroin which was on-supplied to the street dealers. 

11. Police searched the appellant’s home.  They found two separate amounts of money of $23,600 and $89,900, which are the subject of the two counts of money laundering count.  The appellant was arrested and charged with trafficking in heroin.  When police searched Nguyen’s home, the value of the drugs found at his home had a street value of about $188,000. 

12. The appellant was released on bail, having spent seven days in custody. 

13. On 14 February 2012, police again searched the appellant’s home.  They found two quantities of methylamphetamine which resulted in a charge of trafficking in a controlled drug, namely, methylamphetamine, the maximum penalty for which is $50,000 or ten years’ imprisonment, or both.  Sealed in the leg of a table, police also found $15,600 in cash, which is the subject of the charge of money laundering to which the appellant pleaded guilty.  The maximum penalty for that offence is 20 years’ imprisonment.  Police also found a class H firearm, being an imitation hand gun.  The maximum penalty for possession of that firearm is $35,000 or seven years’ imprisonment.  They also found a quantity of ammunition, a quantity of OC spray, and a quantity of Xanax. Those items were the subject of charges laid in the Magistrates Court and transferred to the District Court to be dealt with, together with the matters before the District Court.

14. The appellant pleaded guilty to failing to securely keep a firearm secured, and failing to store ammunition in a locked container separate from firearms.  The maximum penalty for each of those offences is a fine of $2,500.    The maximum penalty for possession of Xanax is a fine of $10,000, or imprisonment for two years, or both.  The maximum penalty for possession of the OC spray is a fine of $7,500 or imprisonment for 18 months.

15. In submissions to the sentencing Judge, counsel for the Director of Public Prosecutions submitted that the appellant had received large quantities of cash, and was involved in trading heroin and methylamphetamine. The drugs were stored at Nguyen’s house which was used as a warehouse and which distanced the appellant from possession of those drugs. In sentencing the appellant, the Judge observed that, in pleading guilty, he accepted that his involvement was more serious than that of either the street dealers and Nguyen.  The appellant was sourcing and arranging for the supply of large quantities of drugs.  He was making a profit from the supply of drugs, which he used to support his own drug addiction and his living expenses.  The Judge considered that the appellant was involved at a fairly high level in a well-organised, significant drug syndicate. 

16. The appellant is 33 years of age and a first offender.  An aggravating feature of his conduct was that he continued to be involved in the drug trade in a substantial way after he had been arrested and charged for the December 2011 offences.  The Judge took into account that the appellant was, at the time of being sentenced, in a stable relationship which had existed for some 11 years, that he had a young son and that, up to the time of his first arrest, he had led a blameless life.  The offences were not isolated instances of offending and were part of a continuing commercial enterprise.

17. The sentencing Judge said:

    As I have said, your offending is very serious.  In fixing penalty I bear in mind that seriousness, the fact that there were two separate sets of offending and the fact that the February offending is aggravated by your having committed those February offences while on bail for the December offences.

    I turn to the sentence. For the offences of failing to keep firearms securely and failing to store ammunition as required, I convict you without further penalty. For all of the remaining offences, I shall fix one sentence pursuant to s.18A of the Sentencing Act.  Had I fixed separate offences, I would have ordered that the sentences for the December offences be served concurrently and the sentences for the February sentences also be served concurrently. I would then have ordered that there be partial concurrency for the sentences for the two sets of offending because all were committed under the umbrella of your drug use at the time.  I shall backdate the sentence to 30 June last year but I must also give you credit, both with respect to the head sentence and the non-parole period, for time spent in custody referable to those matters.

    I shall round that time, some four and a half months, to give you some credit for time spent on home detention bail.  You deserve some credit but not great credit for your pleas of guilty.  They came fairly late in the piece, one of them very late in the piece.

    But for your pleas of guilty, time in custody and time on home detention bail, I would have sentenced you to imprisonment for 12 years.  The sentence of the court is that you be imprisoned for 10 years and I fix a non-parole period of seven years.  In fixing that non-parole period, I have given you the credit I have mentioned for the time in custody and on home detention bail.  The head sentence and the non-parole period are to run from 30 June 2012.

18. No complaint is made about the head sentence.  Counsel for the appellant contends that a non-parole period of seven years of a head sentence of ten years’ imprisonment is manifestly excessive.  Counsel submits that the Judge did not adequately have regard to the appellant’s prospects of rehabilitation, that he was a first offender, and that he was remorseful for his conduct.  Counsel submits that a non-parole period of 70 per cent of the head sentence fails to adequately have regard to factors personal to the appellant.  Counsel does not point to any error of fact or error of principle, but submits that the non-parole period is manifestly excessive and, therefore, error has been demonstrated.

19. When determining a non-parole period, a sentencing judge must have regard to all the factors relevant to the setting of the head sentence and, in so doing, there is no proportion of the head sentence, when setting a non‑parole period, that can be regarded as the “norm”.[1]  In considering and determining a non-parole period, the judge is required to have regard to factors which include the seriousness of the offending, the punitive and deterrent factors, as well as the personal circumstances of the offender.[2] 

    [1]    R v Creed (1985) 37 SASR 566 at 569 per King CJ.

    [2]    R v Miller [2000] SASC 16 at [33] per Doyle CJ quoting Deane, Dawson, Toohey JJ in R v Shrestha (1991) 173 CLR 48 at [67]-[69].

20. The sentencing Judge had regard to those factors.  He observed that the appellant was a first offender, that he had been in stable employment for a number of years, that he had been in a stable relationship and that, since having been in custody, he had been industrious and reliable.  The Judge also had regard to the seriousness of the offending, and the fact that the appellant had continued to offend whilst on bail.   In setting the head sentence and non-parole period, the Judge observed that the appellant’s pleas came late in the piece. 

21. The appellant was involved in serious drug offending.  It was not isolated.  An aggravating feature of his conduct was that he continued to offend in a significant manner when on home detention bail.  He is not to be regarded in the same way as a person who suffers an addiction and reoffends because of their inability to overcome their addiction.  The appellant continued to conduct a significant commercial enterprise.  His aim was to make profits.  After his release on bail, he went to some lengths to hide his continuing activity from police.  It was open to the Judge to regard the appellant’s conduct as demonstrating a lack of comprehension of the seriousness of the offending.

22. The non‑parole period set by the sentencing Judge was a relatively high proportion of the head sentence, but it cannot be said that the Judge was in error.  A non- parole period of seven years and a head sentence of ten years does not, in the circumstances of the case, demonstrate error. 

23. I would dismiss the appeal.

24. BAMPTON J:      I agree with the reasons given by Sulan J.  I would dismiss the appeal.