R v Gip

[2006] NSWCCA 115

Reported Decision: 161 A Crim R 173

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v GIP REGINA v LY [2006] NSWCCA 115
HEARING DATE(S):	1 March 2006
JUDGMENT DATE:	11 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Rothman J at 38; Smart AJ at 46
DECISION:	Crown appeals dismissed
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - supply of a prohibited drug - heroin - plea of guilty - whether an ongoing supply or trafficking of drugs - application of principles regarding exceptional cases and a non-custodial sentence - whether appropriate to ameliorate sentence due to impact of full-time sentence on children - whether sentence manifestly inadequate having regard to criminality - delay in lodging of Crown appeal
LEGISLATION CITED:	Criminal Appeal Act 1912 Drug Misuse and Trafficking Act NSW 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Liu [2005] NSWCCA 378 R v Wirth (1976) 14 SASR 291 R v Bednarz [2000] NSWCCA 533 House v The King (1936) 55 CLR 499 R v Price [2004] NSWCCA 186 R v Livas [2006] NSWCCA 54 R v Clark, unreported, NSWCCA (15 March 1990) R v Bardo, unreported, NSWCCA, (14 July 1992) R v Ozer, unreported, NSWCCA (9 November 1993)
PARTIES:	The Crown (Appl) Shayla Ngoc Trang Gip (Resp) Sung Ly (Resp)
FILE NUMBER(S):	CCA 2005/2124; 2005/2122
COUNSEL:	P G Ingram (Crown/Appl) A Williams (Gip/resp) S S Hanley (Ly/resp)
SOLICITORS:	Director of Public Prosecutions (Crown) Watsons (Gip/Ly)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0540 04/31/0091 04/11/0542 04/31/0090
LOWER COURT JUDICIAL OFFICER:	Andrew ADCJ
LOWER COURT DATE OF DECISION:	03/01/2006

2005/2124
2005/2122

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ

TUESDAY 11 APRIL 2006

GIP, Shayla Ngoc Trang v REGINA

LY, Sung v REGINA

Judgment

1 McCLELLAN CJ at CL: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent who, with his wife, was sentenced after pleading guilty to an indictment which alleged that between 9 October 2002 and 20 December 2002 he supplied a prohibited drug namely heroin being an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act NSW 1985. The maximum penalty for the offence was a term of imprisonment of fifteen years and/or a fine of $220,000. The respondent was sentenced to a term of imprisonment for two years to commence from 2 May 2005 and expire on 1 May 2007 with a non-parole period of fifteen months.

2 The respondent was charged with his de facto wife, Shayla Ngoc Trang Gip who pleaded guilty to the same offence. She was sentenced to imprisonment for a term of two years with a non-parole period of one year but the sentence was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown has also appealed her sentence. The appeals were heard together.

3 The sentences of both respondents were imposed on 30 August 2005 but it was not until 25 October 2005 that the Director of Public Prosecutions signed a notice of appeal. It was served on the respondent Ly on 26 October and on the respondent Gip on 1 November 2005.

4 Before the sentencing judge, there was a factual dispute in relation to the extent of the respondents’ drug dealing activities. Although the respondents pleaded guilty to supplying a quantity of 51 grams of heroin, the Crown alleged that the sentencing judge should find that there was a further supply of 3 ounces of heroin on 14 December 2002.

5 The argument before the sentencing judge was concerned with the conclusion which should be drawn from the telephone conversations that had been intercepted. His Honour records the submission of the Crown being that it was enough, having regard to the extended meaning of supply, in the Drug Misuse and Trafficking Act NSW 1985 that there be an agreement to supply to constitute an offence contrary to s 25. His Honour accepted that proposition but concluded that he could not be satisfied beyond reasonable doubt that the parties did in fact reach an agreement to supply. His Honour’s conclusion is that although there is evidence which suggests that they did, he could not rule out the possibility that, although there may have been negotiations, they did not conclude an agreement.

6 His Honour’s conclusion that he could not find more than one act of supply was reflected in the approach which he took to the sentences. His Honour referred to the decision of this Court in R v Clark, unreported, NSWCCA (15 March 1990) where it was indicated that general deterrence was of considerable significance when sentencing “drug traffickers.” His Honour also referred to the decision in R v Bardo, unreported, NSWCCA, (14 July 1992) at [1] and concluded after consideration of that decision that “trafficking in a substantial degree was a reference to supply on more than one occasion as the word trafficking denotes.”

7 His Honour’s statement of the relevant principles may reflect a misunderstanding and it is appropriate to restate the principles which this Court has previously laid down.

8 In R v Clark, Hunt J, with whom Sharp J agreed, considered the circumstances of an offender who had pleaded guilty to two charges of supplying amphetamine and also asked that consideration be given to summary offences, one of possession of cannabis and another of administering amphetamines. In this context Hunt J said at [2]-[3]:

“This Court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate.
That statement is not, as has been suggested, restricted to those cases in which it has been demonstrated that a profit has been obtained. It may be the fact that in each such case a profit was made, as Kirby P pointed out in Regina v Hayes (1987) 29 A Crim R 452 at 463. That fact is not, however, thereby elevated to become a qualification of the statement itself. Insofar as Kirby P may be understood as suggesting to the contrary, [sic] I must respectfully disagree with him. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. That is made clear by Street CJ in Hayes ’ case at 457. The position is worse when there has been a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence.”

9 Hunt J does not define “trafficking.” Applying the dictionary definition it would seem that his Honour had in mind the activity of trading or dealing in drugs.

10 In R v Bardo, NSWCCA, unreported, 14 July 1992, Hunt CJ at CL returned to the remarks he made in Clark and said at [1]:

“In Regina v Peter Michael Clark (15 March 1990, unreported) this Court repeated previous statements made by it that sentences involving a substantial deterrence are to be imposed on drug traffickers, and that only in exceptional circumstances will a non-custodial order be appropriate. That case was concerned with the supply by the person concerned to a number of different people over a period of time, although not upon a profitable commercial basis. The point which was made was that custodial sentences were normally required, whether or not a profit had been obtained, for ‘trafficking alone in any substantial degree.’ The word ‘trafficking’ clearly carries with it the connotation of supply on more than one occasion.”

11 His Honour found that in the circumstances of that case the supply of a relatively small amount of drug on one occasion did not amount to trafficking in a substantial degree.

12 In R v Ozer, NSWCCA, unreported, (9 November 1993), Hunt CJ at CL had occasion to again consider the concept of trafficking and its consequences when sentencing an offender. His Honour accepted the finding of the sentencing judge that the offence was “a limited and isolated event.” For this reason his Honour held that the offender was not “trafficking” in the sense in which his Honour had used that word in the cases of supply on more than one occasion. However, his Honour did not exclude the possibility that involvement in one transaction could be described as trafficking. His Honour said:

“The sentencing principle stated in Regina v Peter Michael Clark and the other cases does not apply in this case. There are nevertheless obviously cases where, such is the detailed involvement of the accused in the preparation and execution of only the one commercial transaction, a full time custodial sentence is not only appropriate but also necessary.”

13 My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a full time custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown.

14 In the present case there are four grounds of appeal.

Ground One: The learned sentencing judge erroneously held that the Crown had failed to establish beyond reasonable doubt that the supply by the respondents of 51 grams of heroin on 19 December 2002 had not been an isolated instance of supply in that there had been a “supply” by them of three ounces on 14 December 2002.

15 The Crown argued that his Honour came to an erroneous conclusion with respect to conversations recorded by telephone interceptions which it is submitted related to drug dealing before 19 December 2002. The debate at the sentencing hearing was whether or not his Honour should find that as a result of those conversations there was evidence from which a finding of an “agreement to supply” as opposed to an “actual supply” could be made and accordingly find that more than one offence had been committed.

16 Perusal of the transcript of submissions on sentence reveals a detailed discussion between his Honour and counsel, both as to the evidence and, in particular, to the approach which his Honour should take to the application of the extended definition of supply. That definition is in the following terms:

“ supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”

17 The discussion was directed by counsel for the Crown who invited his Honour to sentence for the admitted offence (supply of 51 grams) plus the supply of a further amount of 3 ounces. During the course of it counsel, in response to a request by his Honour as to whether or not there were any further submissions, said the following:

“Well only to say your Honour would only have to be satisfied that there was an agreement to supply not that a supply actually occurred.”

18 His Honour ultimately deals with the matter in the following manner:

“The Crown says that for the purposes of supply it was enough to prove an agreement to supply. That may be so under the extended definition of supply in the Drugs, Misuse & Trafficking Act, but here I cannot be satisfied beyond reasonable doubt that the parties did in fact reach an agreement to supply. There is some evidence that they did not. There is no physical evidence of an act of supply. In all of these circumstances, I cannot be satisfied beyond a reasonable doubt that there was a supply of three ounces of heroin on 14 December 2002. Consequently I proceed on the basis that the amount supplied is 51 grams of heroin on 19 December 2002 and that there is one act of supply.”

19 Before this Court his Honour was criticised for confining the issue to whether or not there was evidence which could satisfy him that the parties did in fact reach an agreement to supply and it is submitted that his Honour should have examined the matter by considering whether or not there had been an offer to supply. Having regard to the fact that counsel for the Crown expressly invited his Honour to approach the matter by finding whether or not there was “an agreement to supply” in my opinion this Court should not entertain the criticism. The case for the Crown was framed on the basis that supply could be proved by proving an agreement but if his Honour was not satisfied of that fact, the respondent should be sentenced for the single act of supply.

20 I have reviewed the evidentiary material which was tendered on the sentence hearing and to my mind no criticism can be made of his Honour’s conclusion that the evidence did not enable a finding beyond reasonable doubt that an agreement to supply the 3 ounces was made.

21 This ground fails.

Ground Two: The learned sentencing judge erroneously confined to cases where there has been the supply of a prohibited drug on more than one occasion the principle that only in exceptional cases will a non-custodial sentence be appropriate for an offence of drug trafficking

22 The respondent Ly received a custodial sentence and accordingly ground two is relevant only to the position of the respondent Gip in so far as a non-custodial sentence was imposed. Otherwise the Crown submits that his Honour has failed to reflect in the sentence a finding which his Honour should have made that the respondents were involved in activity for which significant preparation was made and accordingly the level of criminality should have resulted in a greater sentence for the respondent Gip and a custodial sentence for the respondent Ly.

23 The substantial difficulty facing this submission is that faced by the first ground of appeal. No submission was made to his Honour that if a second act of supply could not be established nevertheless the admitted act should be viewed more seriously by reason of the preparatory steps which had been taken.

24 This ground fails.

Ground Three: The learned sentencing judge erred by ameliorating the sentence imposed on each Respondent because of the impact that a full-time custodial sentence would have upon the respondents’ children.

25 This Court has been careful to define the circumstances in which hardship to children may be relevant in ameliorating the sentence which would otherwise be imposed. The imprisonment of a breadwinner or parent will inevitably impose hardship upon other members of the family. In Regina v Liu (2005) NSWCCA 378 I said:

“The general common law rule was that hardship to third parties is not relevant to sentence, although exceptions were made. One exception was said to be when both parents were imprisoned simultaneously or the family circumstances meant that the imprisonment of one parent effectively deprived the children of parental care: see D A Thomas, Principles of Sentencing, 2nd ed, p 212; Franklin (1981) 3 Crim App R (s) 65; see also R v Boyle (1987) 34 A Crim R 202 at 205; R v Wirth (1976) 14 SASR 291 and R v Edwards (1996) 90 A Crim R 510.”

26 In Edwards Gleeson CJ, with whom the other members of the Court agreed, emphasised that it was only in exceptional circumstances that hardship to a third party could operate to ameliorate the sentence which should otherwise be imposed. Accordingly, if the hardship to be suffered by the spouse or children of a person sent to prison cannot fairly be characterised as exceptional in degree it should be disregarded. His Honour at 516-7 cited with approval the following passage from the judgment of Wells J in Wirth (1976) 14 SASR 291 at 295-296:

“The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the court in mitigation of that sentence?
…
Hardship to spouse, family and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court … It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.”

27 In the present case there is evidence before the sentencing judge of the family circumstances of the respondents. They were living in a de facto relationship and had two children who were then aged 3½ and 16 months. When Gip was originally detained on remand there was evidence that this resulted in significant health problems for the youngest child. Those problems were to a degree alleviated once Gip was released on bail.

28 Having considered the evidence the sentencing judge identified the relevant principles from the decisions in R v Wirth and R v Bednarz (2000) NSWCCA 533 and then made the following findings:

“I think there are such highly exceptional circumstances in this case. This matter involves very young children. Both parents are facing the possibility of full-time custody. The effect of incarceration of the mother on the older child who is now three and a half is already documented and he is a child of fragile health. A further child has been born since that time and is now 16 months. I find that to be very compelling evidence and I find that it takes this case within the highly exceptional category. I think that the effect upon the offender’s young child by separation from it’s parents is far more serious and of a different nature than that which normally attends a separation from a mother by her children from imprisonment.”

29 As Simpson J indicated in Bednarz there may be difficulties in defining in a particular case whether the circumstances are relevantly “highly exceptional.” Minds will differ about whether it is appropriate to classify a particular case in this manner. Although I have reservations as to whether or not the finding was appropriate I am not persuaded that the finding made by his Honour was not open. Accordingly, this Court should not interfere: see House v The King (1936) 55 CLR 499 at 505.

30 The sentencing judge also had regard to the potential hardship to the children when sentencing Ly. His Honour said that amongst other matters he took “into account also the hardship any imprisonment would mean to the children.” Having determined that the sentence imposed on Gip would be suspended it is difficult to justify a reduction in the sentence for Ly based upon hardship to the children. However, his Honour refers to the matter only incidentally and as but one of a catalogue of matters which his Honour considered justified a reduction in the sentence which might otherwise have been imposed. I am not persuaded that this finding has resulted in a sentence which was inappropriate.

Ground Four: The learned sentencing judge erred by imposing a sentence that is manifestly inadequate having regard to the criminality for which the respondents Gip and Ly were to be sentenced.

31 The Crown submitted that, even if ground one is rejected, the objective seriousness of the offence committed by the respondent Gip was of a very high order in view of the circumstances that:

a. the drug involved was heroin;
b. the quantity of 51 grams was over sixteen (16) times the traffickable quantity (3 grams) and ten (10) times the indictable quantity (5 grams);
c. the purity of the heroin was 24.5% which is high;
d. the offence involved significant planning and execution to attempt to avoid detection.

32 In particular, the Crown complained that having regard to the objective matters, notwithstanding the subjective circumstances of the respondent, Gip, a custodial sentence should have been imposed.

33 In relation to Ly, the Crown emphasised that, apart from the objective seriousness of the particular offence, Ly was on a three-year bond at the time of that offence. That bond had been imposed in March 2001 for an offence of driving whilst disqualified. An earlier two-year bond for a similar offence had expired on August 2002, which was only 4 months before the commission of the present offence.

34 I am not persuaded that the sentence which his Honour imposed in relation to either respondent was inadequate. I have already determined that his Honour’s decision to suspend the sentence in respect of Gip was relevantly within his Honour’s discretion. In relation to both offenders the statistics provided to the Court from the Judicial Commission of New South Wales confirm that the term of both the non-parole period and the head sentences were within the appropriate range for the circumstances of this offence as determined by his Honour.

One further matter

35 There is one further significant matter. The sentences were imposed on 30 August and almost two months elapsed before the Crown lodged the appeal. In R v Price [2004] NSWCCA 186 the delay involved was two months between sentence and the lodging of the Crown appeal. At [54] the Court said of that delay:

“A delay of that order is generally unacceptable, particularly where an offender has a period of 12 months or less to serve … and especially where he or she is serving a first gaol sentence. No good reason was given for the delay and it is a weighty matter in deciding whether to intervene.”

36 In my opinion those remarks are apposite to the circumstances of each of the present respondents. This is as much the case in relation to the respondent Gip who has received the benefit of a non-custodial sentence as it is in the present case in relation to the respondent Ly.

37 I would dismiss both appeals.

38 ROTHMAN J: I join in the order proposed by his Honour McClellan CJ at CL. I would add the following comments in relation to the issue associated with the sentence to be imposed on “drug traffickers”.

39 This Court, in R v Clark, expressed a view reflecting the then and current community view on the importance of general deterrence on drug traffickers; it is only in exceptional circumstances that a non-custodial sentence will be appropriate.

40 In R v Bardo, supra, Hunt CJ at CL states that the term “trafficking”, when used in the principles adumbrated in R v Clark, carried with it the connotation of supply on more than one occasion.

41 The statement of principle by this Court in R v Clark (or likewise, the explanation in R v Bardo) is not a legislative enactment. It ought not be the subject of analysis in the same way as a statute. As the passage cited by McClellan CJ at CL from R v Clark makes clear, it is the involvement in general supply of drugs to others that is the concern of the principle which favours custodial sentences. As such, the term “drug trafficking” or “trafficking” ought not be given rigid definitions, or subjected to the same scrutiny to which we subject “supply” and “deemed supply” in the Act. Nor should the Court constrain itself by an overly technical approach to a sentence to be imposed.

42 As I made clear in R v Livas [2006] NSWCCA 54 at [14], there seems to be no good reason why the mere fact that there is only one offence that has been charged or proven ought to prevent the Court from coming to the view that the offender has been involved or is involved in trafficking. The Crown and the defence, in this case, have concentrated on the detail of the principles in Clark and Bardo without regard to the general principles of which they form part.

43 The ultimate question is whether the accused is involved, in the ordinary sense, in trafficking. The mere fact that a person has been caught on only one occasion does not mean the person is not involved in trafficking. The question for the sentencing judge is whether there are facts, proven beyond a reasonable doubt, which facts give rise to an exercise of discretion consistent with the approach in Clark. Those facts may be an agreement to supply on another occasion, an attempt to supply on another occasion, participation in a process which envisages supply on more than one occasion, participation in a syndicate, or a number of other circumstances.

44 The ultimate question must be whether, on the application of ordinary principles of sentencing, full-time custody is warranted. In any situation where the person has been shown to have been involved (directly or indirectly) in an ongoing arrangement, or intended ongoing arrangement, for the supply of drugs, that person, for the purpose of the sentencing principle, should be taken to have been involved in trafficking. The isolated, one off incident of supply, of which Bardo and Livas are examples, does not include persons who, although charged with one offence, are otherwise shown to have an involvement in a process which contemplates supply on more than one occasion. That could be shown, as already stated, by proving any one of a range of activities which give rise to the inference of past, present or future involvement in trafficking.

45 Having made that comment, the manner in which these issues were addressed by Counsel before the sentencing judge would make it wholly unjust to deal with the issues afresh on appeal.

46 SMART AJ: The Crown appeals against the sentences imposed on Sung Ly and his de facto wife, Shayla Ngoc Trang Gip. Each pleaded guilty to a charge of supplying a prohibited drug, namely, heroin, between 9 October 2002 and 20 December 2002. He was sentenced to imprisonment for 2 years with a non-parole period of 15 months to date from 2 May 2005 and she was sentenced to imprisonment for 2 years with a non-parole period of 12 months. In her case there was an order suspending the execution of the sentence for 2 years and directing that she be released from custody on condition that she enter into a good behaviour bond for 2 years.

47 There was no dispute that the charge covered the supply of 51 grams of heroin on 19 December 2002 by the offenders. The Crown contended both at the sentence hearing and on appeal, that this supply was not an isolated instance but had occurred in the course of one or more other similar dealings and sought to prove that beyond reasonable doubt. From the transcript of the sentence hearing there are two views as to the Crown’s approach to this issue at that hearing.

48 The view taken by the Crown on this appeal was that the Crown at the sentence hearing narrowed the issue to whether the sentencing judge was satisfied beyond reasonable doubt that on 14 December 2002 there had been a supply within the extended definition of supply in the Drug Misuse and Trafficking Act 1985. There was a major dispute at the sentence hearing whether the Crown had proved beyond reasonable doubt that there had been a supply of 3 grams of heroin on 14 December 2002.

49 There is an alternative view that, while the Crown contended at the sentence hearing that on 14 December 2002 there had been an instance of the supply of heroin, it relied on the whole of the intercepted material and the surveillance material to prove beyond reasonable doubt that the supply of heroin on 19 December was not an isolated instance. On this approach the failure to prove beyond reasonable doubt that there had been a supply of 3 grams of heroin on 14 December 2002 was not fatal to its contention that the supply on 19 December 2002 was not an isolated instance. After reviewing the whole of the sentence proceedings I prefer this alternative approach to the Crown’s stance at the sentence hearing. Ultimately, it will be necessary to return to the approach taken by the Crown in this Court. I propose first to review the sentence hearing. At the start of that hearing on 19 August 2005 (p3) the judge was told by the Crown Prosecutor:

“What the Crown alleges is that the offenders were involved in the business of supplying drugs and that their involvement preceded 19 December 2002 when they were arrested and the Crown relies on the evidence of the telephone intercepts and of the surveillance that was conducted.”

50 The Crown Prosecutor (T4) stated that the intercepted material (telephone calls) and the surveillance material would allow the Court to infer that there was a prior occasion on 14 December 2002 concerning the supply of 3 ounces of heroin involving the offenders.

51 The Prosecutor stated (T5):

”I rely on the extended definition it could be an agreement to supply or an offer to supply.”

52 The riposte of counsel for Ms Gip was (T5):

“… even on that basis there’s insufficient evidence in relation to an offer of supply or an agreement.”

53 The telephone intercepts reveal an ongoing relationship between the offenders and Raymond Russell and Jason George Deron from at least October 2002. There are many telephone calls between the offenders and Mr Russell. Messrs Russell and Deron came from the Newcastle District, including areas to the south of that District. They frequently arranged to meet, and met the offenders, about 8.30pm at a place on the Central Coast. The offenders travelled from Cabramatta. The surveillance material records a meeting on 10 October 2002 between Mr Russell and people in the offenders’ Honda sedan. An item is seen to pass hands. The Honda, and the vehicle in which Mr Russell was travelling, depart.

54 There are also telephone calls between the offenders and a male called Khanh, in which they employ a code, for example “Get two bottles of wines” (22 November 2002 at 0203 hours) - that is two ounces of heroin. The telephone intercepts reveal that the offenders obtained their supplies from a male called Khanh. For example, on 8 December 2002 at 1313 hours Mr Ly telephoned and asked Khanh for 25 dong (a name used for heroin). Khanh indicated that he did not have that quantity and enquired whether 10 would be all right. Mr Ly stated that that would not be enough. There was then some discussion about “get the ‘whatsie’ to pay them”.

55 On 8 December 2002 at 1748 hours Mr Ly telephoned Raymond Russell and advised that he (Ly) was going up that night. Mr Russell preferred the following night, but Mr Ly said “some customers they call me tonight.” They agreed to meet at about 8.30pm that night. Mr Russell told Mr Ly, “Bring two up”. Mr Ly agreed.

56 On 10 December 2002 at 1605 hours, in a telephone call, Messrs Ly and Russell agreed to meet about 8.30pm about “some biz”.

57 On 14 December 2002 at 1116 hours Mr Russell telephoned Mr Ly and said, “Don’t forget to find out about the good stuff for us. You know what I said last night.” Mr Ly commented that he had not seen “the boss yet”. They arranged to meet at 8.30pm that day. At 1825 hours Mr Ly telephoned Mr Russell and postponed their meeting until around 9pm. Less than a minute later Mr Ly telephoned Khanh. Mr Ly asked for three bottles (three ounces of heroin) and Khanh agreed. At 1946 hours Mr Ly telephoned Khanh and advised, “I’ll be there in about fifteen minutes.” At 2006 hours Mr Ly telephoned Khanh and gave him directions as to how to get to their meeting point. At 2008 hours Khanh telephoned Mr Ly and sought and received a further direction to their meeting place. At 2054 and 2057 hours there were conversations involving Mr Russell, Mr Ly and Ms Gip as to meeting shortly. At 2145 hours Mr Ly telephoned Mr Russell and stated, “Yeah, I can’t because … I can’t …that … that price’s too dear. I can’t reach it. I can’t get it you know.” Mr Russell asked, “Too dear?” Mr Ly replied, “Yeah … because the yellow one, you know …”. At 2147 hours Mr Russell telephoned Mr Ly. Mr Ly could not say how much he would pay until he had “them” tested. There was some discussion about price and Mr Ly wanted “them” to come down in price and someone to have a look at what was being offered. Mr Russell left it on the basis that Mr Ly would see what they (the suppliers) wanted to do.

58 From the conversations it seems that Mr Ly’s suppliers had access to better quality products (drugs) and that Mr Russell wanted some of these. Mr Ly was not prepared to pay the price being asked for these. He may have had to buy greater quantities than Mr Russell wanted.

59 It was common ground that at the meeting on 14 December 2002 between Messrs Ly and Russell the police did not see anything being handed over nor could they see what was handed over at any other meeting.

60 There was mention of samples (see transcript of 30.11.02 at 1223 hours).

61 A study of the intercepts leads to the conclusion that there was an ongoing business relationship between the offenders and Messrs Russell and Deron and between the offenders and Khanh, involving the supply of drugs. There were discussions, negotiations and transactions involving the supply of heroin. However this may be, it is necessary to return to the way in which the case was argued by the Crown before the sentencing judge and this Court.

62 In her closing submissions (T35-T36) to the sentencing judge the prosecutor pointed out that the quantity of heroin involved was not a small amount, at least 51 grams of heroin. She added that even if the Court found that only 51 grams were supplied it was not an isolated incident and that the Court had evidence that clearly placed the offenders’ criminality in its proper context. She added that there had been an association between the offenders and others of a criminal nature that commenced way before 19 December 2002.

63 After the legal representatives for the offenders had made their submissions the sentencing judge invited the Crown to make any further submissions. The prosecutor submitted that the judge would only have to be satisfied that there was an agreement to supply, not that a supply actually occurred. The prosecutor did not further develop her submission that there was an offer to supply. It is a moot point whether the phrase “offer to supply” requires a price to be fixed. Does “offer to supply” include a case where a party offers to supply the drug but no price is fixed? What is the position if the price is to be agreed, but is never agreed? There is also the case where the price is stated in the offer, but the price is rejected. These points were not argued and their determination must await another day.

64 Returning to the events of 14 December 2002 in the circumstances briefly summarised, it was well open to the judge not to be satisfied beyond reasonable doubt that 3 grams of heroin was supplied on or about 14 December 2002. There were discussions and negotiations, but it was not clear whether they went any further.

65 Having regard to the way in which the matter was argued before this Court by the Crown, the last mentioned conclusion meant that the Crown could not rely on more than the events of 19 December 2002. While the Crown’s case was argued with much skill and industry, I have reservations as to the correctness of its approach and its assessment of how the case was argued before the sentencing judge. The Crown’s views on these matters were open and so my reservations must be put aside. Counsel for the offenders was not required to deal with the matter on the broader basis to which I have referred.

66 To establish that the offence was not an isolated instance the Crown does not have to be able to prove another specific instance beyond reasonable doubt. Proof beyond reasonable doubt that the offence was not an isolated one may be inferred from conduct or statements by the accused. It may be apparent that a business is being run or that there is a course of conduct. I would not limit the ways or manner in which proofs of the required standard may be adduced.

67 Ms Gip had a compelling subjective case. If both she and her husband went to prison there would be the difficulty of caring for their two young children, one of whom was sickly.

68 The judge rightly concluded that there were highly exceptional circumstances which justified the Court in taking into account the hardship which would be occasioned to two young children. If both parents were imprisoned the available relative to assist with the care of the children was a 78 year old aunt who also had to work. During the period (20 December 2002 – 19 February 2003) when Ms Gip was in pre-sentence custody, her elder child, who was born on 19 October 2001, was adversely affected to a marked degree. He refused to eat and play and stopped developing. On 27 December 2002 he contracted a febrile illness. He continued to have fevers. He had a history of asthma. He was underweight. Both eardrums were inflamed. He had regressed considerably since being separated from his mother. After being reunited with his mother in February 2003 he improved considerably and was making progress again with his development.

69 At the date of sentencing there was a second child, aged 16 months. Ms Gip suffered from psychiatric illnesses of some severity. It is not necessary to summarise these.

70 The sentencing judge correctly determined the sentence which should be imposed on Ms Gip and correctly suspended the sentence. This Court should not in any event, in the exercise of its discretion, intervene.

71 As to both offenders there was a delay of 2 years 8 months between their arrest and coming before the judge on 19 August 2005 for sentence. This does not appear to be their fault, although Ms Gip’s pregnancy probably delayed the hearing. As to Mr Ly, the notice of appeal was not served until 26 October 2005. Mr Ly has already served over two-thirds of the non-parole period of 15 months. He is due to be released on parole on 1 August 2006. It would not be fair to extend his period in prison at this late stage.

72 As to Ms Gip, the notice of appeal was not served until 1 November 2005. She was in pre-sentence custody for 2 months. For an offence which occurred on 19 December 2002, being the day of her arrest and bearing in mind that she was released from prison on bail on 19 February 2003, it would not be right after so long a delay to send her to prison when she has to care for two young children, one of whom is sickly.

73 The Crown appeals should be dismissed.

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