R v Chin
[2003] NSWCCA 267
•29 August 2003
CITATION: R v Chin [2003] NSWCCA 267 HEARING DATE(S): Friday 29 August 2003 JUDGMENT DATE:
29 August 2003JUDGMENT OF: Mason P at 1; Hidden J at 2; Shaw J at 18 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - Sentence - supplying commercial quantity of ecstasy, supplying cocaine - whether sentences excessive - whether parity of sentence required with another offender whose offences were related to, but independent of, the applicant's PARTIES :
Regina (respondent)
Jason Hong Chun Chin (applicant)FILE NUMBER(S): CCA 60133/03 COUNSEL: Ms N Mikhaiel (applicant)
Ms F Guy (respondent)SOLICITORS: J Rigg (applicant)
SE O'Connor (respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0105 LOWER COURT
JUDICIAL OFFICER :Twigg DCJ
60133/03
Friday 29 August 2003MASON P
HIDDEN J
SHAW J
1 MASON P: I invite Hidden J to give the first judgment.
2 HIDDEN J: The applicant, Jason Chong Hun Chin, pleaded guilty in the District Court to a charge of supplying a commercial quantity of ecstasy, which carries a maximum sentence of twenty years imprisonment, and a charge of supplying cocaine, which carries a maximum sentence of fifteen years imprisonment. He also asked the sentencing judge to take into account on a Form 1 a charge of goods in custody. His Honour sentenced the applicant on the first charge, taking into account the matter on the Form 1, to imprisonment for six years with a non-parole period of three and a half years. On the second charge his Honour sentenced the applicant to a concurrent fixed term of imprisonment for three years. The applicant seeks leave to appeal against those sentences.
3 The facts can be stated briefly. The first charge arose from the applicant’s supply of ecstasy in tablet form to a number of men over the four-month period between February and June 2001. It is conservatively estimated that over that period he supplied a little under 478g of the drug. On three of those occasions he supplied the drug to a man called Andrew Manser, to whom it will be necessary to refer a little later. In this enterprise the applicant received fairly substantial sums of money. Upon his arrest on 1 June 2001 the applicant was in possession of $7,000, which he had received from Mr Manser for the purpose of one of these transactions, and it was that amount of money that was the subject of the goods in custody charge on the Form 1.
4 The second charge arose from his dealing with cocaine over a period of about a month between April and May 2001. Over that period he supplied about four and a half grams of that drug but he also offered to supply some twenty-nine grams.
5 The applicant was twenty-five years old at the time of the offences and is now twenty-seven. In his earlier adult years he had had a severe gambling problem, which had led to his incurring significant debts. At the time of the offences he was himself abusing drugs but that was not the motivation for his drug supplying. The reason for that was to repay a friend and some family members who had earlier covered substantial debts he had incurred while gambling.
6 His subjective case otherwise was favourable. He had no criminal record of any significance. He came from a supportive family and had a girlfriend who, at the time of sentence, was faithful to him. His Honour found him to be remorseful. He had prospects of rehabilitation and the relationship of the non-parole period to the six-year head sentence on the first charge demonstrates that his Honour found special circumstances warranting that course.
7 His Honour was of the view that an appropriate starting point for sentence was seven and a half years imprisonment and his Honour appears to have intended that to be an appropriate global starting point for both offences. That figure his Honour reduced by twenty per cent so as to arrive at the head sentence of six years on the first charge, in the light of the applicant’s pleas of guilty, although they were not early pleas.
8 Counsel for the applicant in this Court has challenged the sentences on two bases. It is said that they are manifestly excessive and it is also said that the effective sentence of six years is markedly disparate from sentences later imposed on the man Andrew Manser; so disparate as to provide this applicant with a legitimate sense of grievance.
9 As to the first ground, it must be said that the starting point of seven and a half years is high and that the sentences actually passed on each of the offences viewed individually are high. In so saying I am mindful that the first count was, in effect, a rolled up charge embracing a pattern of drug supply over a four month period, and that in passing that sentence his Honour was required to take into account the additional offence on the Form 1.
10 Nevertheless, the practical approach taken by counsel for the applicant is that the ultimate question for this Court is whether the six-year sentence is an appropriate global reflection of the whole of the applicant’s criminality. Put another way, the question for us is this: if his Honour had passed more moderate sentences on each of the charges but had made those sentences wholly or partly cumulative, so as to arrive at an overall sentence of six years, would that global sentence be manifestly excessive? I am not persuaded that it would.
11 There is very little information about the pattern of sentencing for the supply of ecstasy, somewhat surprisingly. We have been referred to no decision of this Court and the Judicial Commission statistics embrace only six cases. On those statistics the sentence passed upon the present applicant is the highest. Nevertheless, looking at the six-year sentence as a global reflection of the applicant’s criminality and, in particular, having regard to the seriousness of the first offence involving the supply of ecstasy over a considerable period, I am not persuaded that that sentence was outside the proper exercise of his Honour’s discretion.
12 The effective non-parole period of three and a half years is undoubtedly a long time in gaol for a young man. Nevertheless, the non-parole period itself must reflect the criminality involved and in my view this non-parole period properly does. In addition, the manner in which his Honour has structured the sentences leaves the applicant with a substantial period of parole eligibility during which his rehabilitation can be fostered.
13 The other challenge to the sentences, as I have said, raises the question of parity with sentences imposed upon the man Andrew Manser. Manser was dealt with by another judge for a charge of also supplying a commercial quantity of ecstasy and a related charge of supplying a relatively small amount of amphetamine. He was sentenced effectively to two years imprisonment, with a non-parole period of eighteen months, to be served by way of periodic detention. The sentencing judge arrived at that lenient result because Manser made out a particularly favourable subjective case, including substantial co-operation with the authorities.
14 The only link between Manser’s criminality and that of the applicant is that part at least of the ecstasy with which Manser was involved was ecstasy supplied to him by the present applicant. In every other respect the offences are separate and distinct. In no sense could Manser be described as a co-offender with the applicant. There is no suggestion that they were acting in concert, in some kind of drug supplying enterprise.
15 No doubt every offender who supplies drugs has got them from someone, but that does not make that someone a co-offender so that an appellate court should look upon the sentences imposed upon each of them and determine whether there is an appropriate relativity between them. For that reason, in my view, the argument based upon parity is misconceived. In any event, as I have said, Manser made out a very favourable subjective case. It does not appear to me that any parity argument could properly be based in the present case because the episodes of criminality of the two men, while in one sense linked, are entirely separate.
16 For those reasons I would propose that leave to appeal be granted but I would dismiss the appeal.
17 MASON P: I agree.
18 SHAW J: I agree with Hidden J.
19 MASON P: The orders of the Court are as indicated.
Last Modified: 09/19/2003
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