R v Chen

[2003] NSWCCA 327

CITATION:	Regina v David Chang [2003] NSWCCA 327 revised - 13/11/2003
HEARING DATE(S):	14 October 2003
JUDGMENT DATE:	14 October 2003
JUDGMENT OF:	Sheller JA at 31; Sully J at 1; Howie J at 32
DECISION:	Leave to appeal granted; Appeal dismissed
LEGISLATION CITED:	Drug Misuse and Trafficking Act Justices Act Criminal Appeal Act
PARTIES :	Regina David Chang
FILE NUMBER(S):	CCA 60215/03
COUNSEL:	D. Arnott - Crown A. Francis - Appellant
SOLICITORS:	C. K. Smith - Crown B. Sandland - Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0906
LOWER COURT JUDICIAL OFFICER :	Stewart ADCJ

60215/03

SHELLER JA
SULLY J
HOWIE J

14 October 2003

REGINA v DAVID CHANG

Judgment

1 SULLY J: The applicant Mr Chang, pleaded guilty before a Local Court Magistrate to two drug-related offences. One offence charged him with having supplied, between 25 and 28 February 2002, a prohibited drug, namely heroin, on three or more occasions. Such an offence contravenes s 25A of the Drug Misuse and Trafficking Act and it attracts, upon conviction, a statutory maximum penalty of, relevantly imprisonment for 20 years.

2 The second offence charged against the applicant was that he had, on 30 May 2000, supplied a quantity of heroin contrary to s 25(1) of the same Act. Such a contravention attracts, upon conviction, a statutory maximum penalty of, relevantly, imprisonment for 15 years.

3 The applicant was committed upon his pleas; and he was remanded, pursuant to s 51A of the Justices Act, to the District Court for sentence in that Court. Proceedings on sentence took place on 25 October 2002, and the applicant stood eventually for sentence on 6 December 2002.

4 In respect of the s 25A matter, the applicant was sentenced to imprisonment for four years and four months with a non-parole period of three years and three months. On the s 25(1) matter, he was sentenced to a period of imprisonment for a period of three years with a non-parole period of one year and three months. There was a partial accumulation of the sentences, and its effect was to pass upon him sentences effectively totalling six years and three months, with non-parole periods effectively totalling four years and six months.

5 Originally two grounds of appeal were notified. They are:

"1. The learned sentencing judge erred by giving insufficient weight to the applicant's disclosure of otherwise undetectable guilt.
2. The sentence is manifestly excessive and a lesser penalty is warranted in law. (S 6(3) of the Criminal Appeal Act 1919)".

6 Yesterday there was notified to the Registry of the Court a further ground of appeal. It says,

“The sentencing judge erred in finding in respect of count 2 that the applicant was guilty of the deemed supply of 14.9 grams of heroin. The correct amount being 4.9 grams as per the attached analyst's certificate of Wendy Chorng-Wen Charng".

7 When the applicant stood for sentence he asked that there be taken into account two matters on a Form 1 schedule. Both of those matters concern offences of goods in custody, the goods in question being amounts of cash: $1,740 in one case, $2,650 in the other.

8 As to the ongoing supply offence, the relevant facts, as found by the learned sentencing Judge, are stated as follows in his Honour's remarks on sentence:

“About 2.25pm on Thursday 28 February 2002 plain clothes police were in the vicinity of Ormond Parade Hurstville. While walking past a public phone box which is located on the southern side of Ormond Parade about twenty metres west of the intersection of Butler Road police observed two young males using the telephone therein. The first unidentified male was heard to make a phone call to whom it was alleged and is now agreed was the prisoner. This male was heard to greet the person on the other end of the telephone line and say, `I'm after a half.' The first male was heard to say, questioningly, `You'll be here soon?' The second male was heard to say, `Ask for a half.’ The police formed the opinion that a drug transaction was about to occur as the word `half’ is often used by drug addicts and dealers to describe a half weight of heroin. Two males walked north through the shopping arcade located at Hurstville Railway Station and walked east on Forest Road followed by plain clothed police. The two males walked to the Palm Court carpark located on the corner of Forest Road and Tracey Street. Police observed the prisoner enter the carpark on the northern side off Tracey Street. The prisoner was observed to be the sole occupant and driver of motor vehicle New South Wales registration ACU09T, a grey Volkswagon Polo. The first male was seen to walk to the front nearside window of the vehicle and talk with the prisoner. The first male held out his hand to the prisoner. The prisoner appeared to hand the first male something. The first male walked away from the vehicle and appeared to hand the second male something. The males then left the scene. Police formed the opinion a drug transaction had occurred. Police then approached the prisoner who was seated in the driver's seat of the vehicle. Police announced their office and the prisoner was placed immediately under arrest. Further police arrived and the prisoner was cautioned and asked if he had anything upon his person he should not have. He replied, `Yeah.’ When questioned further he stated he had drugs in his bumbag. The prisoner was searched. Located in the front pocket of his bumbag were three water balloons containing heroin. Also located inside that bumbag was a white pill container containing a further seven water balloons containing heroin. The prisoner's wallet was located in his bum bag and was found to contain an amount of $1,580 in cash in assorted denominations. A further $160 cash in assorted denominations was located on the driver's seat of the vehicle. This is clearly the proceeds of the sale of heroin and I so hold.
The prisoner was conveyed to Hurstville Police Station where he participated in what is called an ERISP interview. During that interview the prisoner made full admissions as to purchasing twenty deals of heroin from a male in Waterloo on Monday 25 February 2002, the ten deals in question being part of the purchase. He stated he paid about $2,200 in cash for these drugs that he knew to be heroin. The prisoner further stated that he had sold the other ten deals to various people in return for money over the previous three days. In relation to the transaction in the Palm Court car park, the prisoner stated he exchanged an amount of what he believed to be heroin to the first male in return for $160 in cash police located on the driver's seat.
The police note that the prisoner freely admitted to purchasing approximately the same amount, that is, twenty deals of what he believed to be heroin from the same male on no less than four or five other occasions. A total of about 100 deals was therefore supplied which he admitted to selling to other persons. In relation to the $1,580 in cash in his wallet, the prisoner stated that all but $450 in cash was the proceeds of the sale of heroin. The entire amount of cash was seized as an exhibit. The ten deals of heroin were weighed in the presence in their packet then returned a reading of 4.9 grams. The drug was sealed in a drug security bag and the prisoner was charged. Upon analysis the substance was analysed as heroin. One only has to recite those facts to realise that this is a serious matter and constitutes the supply on an ongoing basis over the period under consideration.”

9 In relation to the second count his Honour stated as follows the relevant facts:

“In relation to the second count of supply the agreed facts are as follows. About 2.10pm on Thursday 30 May 2002 the police were patrolling Homesdale Street Marrickville. They observed a grey coloured Volkswagon Golf, I do not know if that should be Golf or Polo, but in any event it was a Volkswagon. It was parked near the front of residential premises whose occupants are known to police for illegal drug use amongst other things. Police made a check of the registration of the vehicle which revealed the vehicle and occupants had come under notice recently at that time for supply drugs. The registration of the vehicle was ACU09T, which is the same registration as the Volkswagon which was being used in the ongoing supply charge. Police approached the vehicle and as they did a passenger in the front of the vehicle got out and walked towards the front door of the premises referred to earlier. Police spoke to him and asked him to return to the vehicle. Police asked the prisoner, who was the driver of the vehicle, why he was at this particular location and he told police that he was there to visit a friend. He was unable to nominate the name of the friend. Police asked the prisoner to get out of the vehicle and asked for his driver's licence. He produced his licence and police saw that there was a large amount of cash in his wallet. Police informed the prisoner that they intended to search his vehicle for prohibited drugs. They found inside the map pocket of the driver's door an empty red coloured water balloon knotted and torn. Police asked the prisoner if he was a heroin user and he said, `Sometimes.’ The prisoner was told to stand next to the front right hand side of the vehicle on the gutter. Police saw the prisoner throw a white coloured object into the front yard of 30 Homesdale Street, a distance of about three metres. Police took hold of the prisoner and took him to a white coloured plastic screw top bottle lying in clear view on closely mown grass. Police asked him what was in the bottle and he said, `Heroin.’ He was placed under arrest and cautioned. Further police were called for and the scene was photographed before the bottle was opened in front of the prisoner. The bottle was found to contain 32 balloons each containing heroin. There were twelve blue coloured balloons, eleven yellow balloons, three pink, one green and five red balloons. The prisoner was asked what the colours signified and he told police `different sizes different amounts.’ The prisoner detailed the amount he sold each balloon for as follows: `Red $100, blue $70, green $50, yellow and pink $30.’ Located in the prisoner's wallet was $2,650 in cash. The prisoner later claimed that this money was his for the possible purchase of a motor vehicle in Newtown which he was to look at that day. Police allege the money is the proceeds of the sale of heroin. I confirm that and find that as a fact beyond reasonable doubt. The prisoner was taken to Newtown Police Station and there he participated after having been told of his rights in an electronically recorded interview during which he told police that he intended to sell some of the heroin to support his own habit. He claims to have purchased the heroin pre-packaged in Waterloo on Sunday 26 May 2002 for $1,800. He told police that he had sold two green balloons during a period which is not clear but those were $50 balloons apparently. He further said that he used one of the balloons on the same day he bought the drug, presumably for his own use. In relation to the $2,650 the prisoner had in his wallet, he claimed the money was his and that he had saved it from his unemployment benefits and from casual work as a floorsander. He claims that $100 of the money is from the sale of a balloon of heroin. In my view, that is incorrect and the whole of the money was from the sale of heroin. In Newtown the balloons were weighed in front of the prisoner. He was shown electronic scales reading 00 grams and when the balloons were placed on the scales the readout displayed 14.9 grams.
While in police custody the prisoner's mobile telephone rang on a number of occasions before it was switched off. On two occasions police answered the telephone and had conversations with the callers who were clearly ringing the prisoner's telephone to organise the purchase of illegal drugs. The prisoner was later charged and finds himself where he is now. Clearly, those facts disclose a serious offence as well as the serious offence to which I hitherto adverted.”

10 The first of the two offences was committed at a time when the applicant was subject to a bond which had been given to him in 2001, and in connection with a drug offence not related to the two particular counts of which I have earlier spoken. No doubt, for the matter is one of common sense and common experience, the applicant was given the bond upon the basis that he would be faithful to its requirements; and in particular, that he would not commit, while subject to the bond, further breaches of the law; and in particular, further drug-related breaches of the law.

11 The second of the two counts upon which the applicant was sentenced was committed at a time when he was subject to that same bond, but subject also to conditions of bail, he having been granted bail in the aftermath of his arrest for the first of the two offences.

12 It need hardly be emphasised in any extended way that the offences with which this application is concerned were seriously aggravated as to their objective criminality by reason of the fact that they were committed, in the one case in breach of a bond, and in the other case, in breach of a bond and of conditions of bail.

13 At the proceedings on sentence the applicant gave some short evidence. His Honour, the learned primary Judge, put to the applicant a number of questions designed to elicit at least some information about the source or sources of the heroin in which the applicant incontestably was dealing at the relevant times. The relevant questions and answers are as follows:

“Q. What do you say now. Where did you get it?
A. Off a person in Waterloo.


Q. A person at Waterloo?

A. Yes.

Q. And you’re not going to tell me who it is are you?
A. No sir.

Q. No you don’t want to because he’ll come and shoot you or something is that right?
A. Probably.


Q. Yes. You’re playing in the big league here aren’t you?

A. Yes.”

14 In cross-examination, and subsequently in re-examination, the applicant gave further evidence as follows:

“Q. So when you tell this Court that you were funding your own habit you were also making some extra pocket money on the side?
A. Sometimes.


Q. And do you recall what your drug use was at the time that you were arrested in relation to the ongoing supply in February?
A. No, not really.

Q. Had you a drug use between then and May when you were picked up on the second lot of second offences, had your drug use remained stable or had it changed?
A. Basically stable.

Q. Basically stable. So when you told police when you were picked up in May that your use was fairly low level, that would be fair to say it had been stable since you were picked up in February?
A. Roughly, yes.

Q. And you told police on that occasion that you were injecting only once a week or on weekends?
A. Yes.

Q. And how much money would you spend on heroin on that weekly dose?
A. I couldn't say. It's hard to say.

Q. Well how much, you're only using once a week, how much heroin were you using?
A. Be about $150, $300, I don't know.

Q. $150-$300?
A. Close to it, yes.

Q. And anything in excess of that is effectively profit?
A. Roughly, yes.

<RE-EXAMINATION

KEAY: Q. The person you said is Chuck, do you know that person's full name?
A. No, I don't.

Q. Do you know where that person lives?
A. No.

Q. Do you know their phone number?
A. No, he rings me or he used to ring me.

Q. How often were you using before you went into custody in May of this year, was--
A. I can't remember.

HIS HONOUR: Q. I'm sorry, did you say you used to ring Chuck?
A. No, he used to ring me.

Q. He used to ring you?
A. Yes.

KEAY: Q. You suffered from withdrawal when you went into custody, didn't you?
A. Yes.

Q. So you were using regularly weren't you?
A. Close to it yes, towards the end.

Q. Was it every day?
A. If not every second day or something--

Q. It's not fair to say you're only using once a week, is it?
A. Yeah, in the beginning yes, when I first got charged round there, yes.”

15 It seems to me that a correct starting point in the present case is a level-headed understanding of what seems to be the undoubted fact that the evidence in hand at the sentence proceedings showed that the applicant, for whatever reason or reasons, had been conducting at the material times an organised and ongoing business of trafficking heroin. I consider it to have been, in objective terms, contumelious behaviour by reason of its breach, flagrant and deliberate, of both the bond and the bail conditions of which I have earlier spoken.

16 The applicant had, of course, relevant subjective matters which required the consideration of the sentencing Judge. With one exception, I do not understand it to be contended that the learned sentencing Judge did not adequately canvass those matters in his Honour's remarks on sentence; and save for that one exceptional matter, I do not think there is any need to canvass them in any fine detail now.

17 Against that background, it is appropriate to turn in a more particular way to the notified grounds of appeal.

18 As to the ground of appeal which propounds that the learned sentencing Judge did not give sufficient weight "to the applicant's disclosure of otherwise undetectable guilt", it is the case that his Honour referred in terms to that factor in the applicant's case. His Honour did so at page 11 of his remarks on sentence and in these terms:

"I take into account that if he had not confessed fully to some of his drug transactions which the police did not know about, the police would not have been able to proceed with them they would not have been able by detection I would think, to find out the things that he told them.”

19 Since it is obvious that his Honour did not simply overlook that factor, the applicant's point necessarily focuses upon a proposition that his Honour achieved an end result in the sentences passed which cannot be sustained upon a basis which makes a proper allowance in accordance with the relevant authorities for the fact that the applicant himself disclosed offending conduct which otherwise probably would not have come to light. It will be necessary to leave that particular issue to one side until the other grounds of appeal have been considered; but it is, in my opinion, relevant to make at once the point that whatever the relevant authorities say on the question of a discount in such a situation, they do not authorise, as I understand them, the passing ultimately of sentences which simply do not face up to the need to preserve at all times a proper, and a manifest, proportion between the sentences ultimately passed, and the offending behaviour in connection with which they are passed.

20 The ground added by yesterday's notification raises a number of what I might describe as mathematical problems, which are not easily resolved upon the basis of the material at hand. As best I can divine from that material, the gross weight of the heroin recovered in connection with the first count was 4.9 grams; and the gross weight of heroin recovered in connection with the second count was 14.9 grams; for a total of 19.8 grams.

21 In so far as it is relevant for the purposes of the State legislation to have regard to the pure heroin content of those amounts, - (and I am not persuaded, as at present advised, that it is necessarily the case that the matter has to be approached in that way under the State, as distinct from the Commonwealth, legislation concerning prohibited drugs), - then the respective pure weights would seem to have been: 1.82 grams in the case of the first count, and about 4.9 grams in the case of the second count. I say “about 4.9 grams” because examination of the relevant analyst’s certificate does not, I think, enable one to say in a concluded way that the pure heroin content of the entirety of the gross quantity recovered was in fact as precise as 4.9 grams. However that may be, the pure weight total would come to something in the order of 6.72 grams.

22 It was submitted for the applicant that a demonstration of that kind of disparity: that is to say, a disparity between gross weight upon the basis of which it seems that the sentencing Judge proceeded either in whole or in part; and the amount of pure heroin content in so far as it can be calculated from the available evidence; is so great a disparity as to require, almost as of course, some intervention by this Court to correct in the applicant's favour the sentences in fact imposed upon him.

23 I would not, myself, accept that submission.

24 That the question of weight is a relevant consideration in drug-related matters is, I think, clearly established by the authorities; but none of the authorities of which I am aware, and certainly none of them to which the Court was referred during today's argument, would support the proposition that weight is, of itself, determinative of what ought justly to be done in the particular case in the matter of sentence.

25 That means that the present application, if it is to succeed, must succeed upon the third notified ground of appeal: that is to say, the ground that the sentence is manifestly excessive in a sense that warrants the intervention of this Court pursuant to s 6 subsection (3) of the Criminal Appeal Act. That is largely a matter of individual judgment in the context of that instinctive synthesis to which relevant appellate authorities on the art and practice of sentence refer.

26 I, myself, take the view that the objective seriousness of these offences was of such an order that they were properly punished by properly severe sentences. The question, as always, is not whether a tribunal constituted by three Judges may have imposed more lenient sentences. The question is whether the sentence in fact imposed lies within a permissible sentencing range.

27 There has been, as is practically inevitable these days, some reference made to Judicial Commission statistics. It is enough to say that in my opinion, the profile of the statistics to which reference was made is not a profile which provides information material with respect to the profile of the present offender. I do not find, myself, any assistance at all in the statistical references which have been made during the course of argument.

28 As I have said, I consider these to have been serious offences. I think that their aggravation by reason of the breaches of the bond, and of the bail conditions, is not a trifling matter. If bonds and bail conditions are not maintained with a proper resolve, then the orderly and just administration of criminal justice, so far from being advanced, will be significantly retarded.

29 I think that when a fair view is taken of the objective gravity of these offences; and when there is balanced against it a sensible allowance for the subjective matters of which I have spoken; it cannot be said that the end result achieved falls manifestly outside the range of a proper sentencing discretion.

30 I would grant leave to appeal but I would dismiss the appeal.

31 SHELLER JA: I agree.

32 HOWIE: I agree.

33 SHELLER JA: The order of the Court will be as proposed by Sully J.

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Last Modified: 11/14/2003