R v Ha

[2004] NSWCCA 386

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Ha [2004]  NSWCCA 386

FILE NUMBER(S):
2004/1843

HEARING DATE(S):               1 November 2004

JUDGMENT DATE: 11/11/2004

PARTIES:
Regina v Hong Thai Ha

JUDGMENT OF:       Giles JA Buddin J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/0371

LOWER COURT JUDICIAL OFFICER:     Shillington ADCJ

COUNSEL:
(C)   E Wilkins
(R)   C B Craigie SC

SOLICITORS:
(C)   S Kavanagh
(R)   S O'Connor

CATCHWORDS:
Deemed supply of a prohibited drug (305 grams) - full time custodial sentence required  absent exceptional circumstances - in circumstances, including those arising after sentence, extended period of periodic detention imposed on re-sentencing

LEGISLATION CITED:
Criminal Appeal Act 1912 s 12(2)

DECISION:
See para 25

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2004/1843

GILES JA

BUDDIN J

SMART AJ

Thursday, 11 November 2004

Reginav     Hong Thai HA

Judgment

1.GILES JA:   I agree with Smart AJ

2.BUDDIN J:   I agree with Smart AJ.

3.SMART AJ:   The Director of Public Prosecutions appeals against the sentence of 15 months imprisonment to be served by way of periodic detention imposed upon the offender.  The non-parole period was 9 months and the sentence commenced on 5 June 2004.  The offender was found guilty by a jury of supplying a prohibited drug, namely pseudoephedrine in that he had in his possession more than the prescribed quantity (15 grams, the trafficable quantity).  The maximum penalty for the offence is 15 years imprisonment.

4.The offender's trial took place before a judge who shortly afterwards became unavailable and was unable to attend to the sentencing of the offender. A second judge was involved in the sentencing exercise but withdrew because of other exigencies and a third judge sentenced the offender.  The trial transcript occupied some 300 pages. There were also transcripts of the addresses of  counsel and the summing up.  The sentencing judge was given a synopsis of the evidence and proceedings by the Crown Prosecutor, with counsel for the offender providing a supplementary oral synopsis .  Both counsel were content with this course.  This procedure was somewhat informal and it would be better for a more formalised procedure to be adopted.  However, it is possible from the materials supplied to this Court to ascertain the facts sufficiently, most of which were not in dispute.  I do not think that either party was materially prejudiced by the procedure adopted.

5.The sentencing judge became seized of the relevant facts and his remarks on sentence can be readily understood in the light of the sentencing transcript.

6.On 1 May 2003 the offender went to a number of pharmacies mainly in the northern peninsula areas in succession and purchased tablets.  His vehicle was ultimately stopped and a search of it revealed 840 pseudoephedrine  based tablets.  There was evidence of earlier visits to and contact with pharmacies but no direct evidence of what occurred on those visits.  The maximum amount of pseudoephedrine  a person may have in his possession approximates the quantity of that drug in approximately 30 tablets.

7.The admixture, that is, the tablets containing the prohibited drug weighed 305.4 grams.  From these tablets (the admixture) the pseudoephedrine is extracted.  By various processes this would yield a maximum of 78.1 grams of pseudoephedrine base, but normally a pseudoephedrine base of about 31.24 grams to 46.8 grams.  Again this could be used to produce pure methylamphetamine, the quantities varying from as high as 87,8 grams down to 40 per cent – 60 per cent of that figure, that is to between about 31-47 grams.

8.The evidence did not support any suggestion that the offender was a dealer or manufacturer.  A search of his home revealed nothing suggesting any chemical process occurring at his home or any indicia of drug dealing.  The offender was described as a pseudo-runner.  He purchased the tablets in question and then on sold them, the likelihood being that they would end up being used to produce methylamphetamine.

9.It was estimated by a detective that the tablets found in the offender's possession would have cost about $800 and that the offender would have on sold them for $2,400 to $3,200, thus making a profit of $1600 to $2400 less expenses.

10.In his summing-up the judge told the jury, without objection, that the real issue in the case was Mr Ha's knowledge.  Did he know in each case that the tablets contained pseudoephedrine  or a prohibited drug?

11.At the sentencing hearing counsel for the offender told the judge, "… the defence was, which a jury did not accept, … that he was purchasing this medication to send overseas to his family in Vietnam because this was about the time of the SARS epidemic and the medicines here were much better than over there."

12.That was not strictly the defence but a contention to that effect was advanced at the trial.  This was the explanation which the offender gave for having such a large quantity of tablets in his possession.  He was not concerned about the particular contents of the tablets but rather with obtaining tablets which would be a help to the good health of family members in Vietnam.  Thus he was not involved in any way in introducing prohibited drugs into the community.  Counsel for the offender was correct in accepting that the jury's verdict rejected that explanation.

13.The sentencing judge found that the activities of the offender would have led to more of the dangerous drug, methylamphetamine, being in the community for sale.

14.The judge held that the offender had not shown any contrition.  The offender was born on 15 August 1977.  On 22 April 2003 the offender was convicted on five charges of dishonesty in the Local Court and sentenced on each charge   to 3 months periodic detention to date from 2 May 2003.    He was involved in a credit card fraud.  Thus the principal acts of the offender the subject of the instant offence were committed while he was under a sentence of periodic detention.  This is an aggravating factor.  He completed that sentence without incident and satisfactorily.

15.The offender was born and brought up in Vietnam and reported a happy and supportive upbringing.  He came to Australia  on a student visa in 1998 sponsored by his future wife, whom he married shortly after his arrival.  He came to study English.  He is now a Permanent Resident.  They have two children, a daughter aged three and a son aged 10 months.  The offender's two younger brothers arrived in Australia in 2000 and 2003 respectively and live with the offender and his wife in private rental accommodation.  He has worked consistently and hard since coming to Australia but he suffered a back injury which resulted in him being unemployed for a period.

16.The psychologist, Dr C J Lennings, wrote that Mr Ha's capacity to express himself and to use the English language in any functional sense was practically non-existent.  The test of his reading ability revealed that his sight knowledge of words fell into the 5th grade level at school.  Dr Lennings further wrote that the offender did not seem to have any psychological problems and appeared to be a devoted family man.  There was an absence of indicators which would normally indicate recidivistic behaviour.  He enjoyed a high level of family support and reports an absence of violence or mental illness.  Dr Lennings thought the offender's characteristics would ordinarily indicate a good response to community service or periodic detention.

17.The sentencing judge also took into account a number of references which spoke highly of the offender as a person and an employee.

18.The sentencing judge concluded that the seriousness of the offence demanded a custodial sentence but in all the circumstances felt that it should be served by way of periodic detention.

19.The sentencing judge found correctly that there were special circumstances being the offender's prior good character, his family situation and good prospects of rehabilitation.

20.The need for general deterrence is high in cases involving dealing in and supplying prohibited drugs.  This applies where there is a deemed supply with an appreciable quantity of prohibited drugs. For the offence of supplying the prohibited drugs in question a full time custodial sentence would be required absent exceptional circumstances:  R v Clark (unrep NSWCCA 15 March 1990), R v Pilley (1991) 56 A Crim R 202 at 208, R v Leslie (1991) 55 A Crim R 68 at 70. Periodic detention is not usually considered an appropriate sentence for prohibited drug supply offences.

21.The circumstances in this case fall short of exceptional circumstances.  The sentence imposed was manifestly inadequate and warrants intervention applying the principles as to Crown Appeals set out in R v Way[2002] NSWCCA 42 at [70] per Wood CJ at CL. The sentencing judge should have imposed a full time custodial sentence consisting of a non-parole period of 18 months and a total term of 2 years 3 months.

22.There are no sufficient reasons why the Court should not proceed to re-sentence.  However, there are factors which would lead this Court to moderate the sentence which it would otherwise impose in addition to the usual restraint which it exercises in Crown appeals, because of factors such as double jeopardy.

23.The offender was arrested and charged on 1 May 2003.  He was found guilty by the jury on 1 March2004 and sentenced on 24 May 2004.  The notice of appeal was lodged on 26 July 2004.  The offender has deposed that he did not receive any letter warning that the Crown may appeal before he was served with the notice of appeal at Campbelltown Periodic Detention Centre many weeks after he was sentenced.  The offender has served five months of his periodic detention.  The Acting Officer in charge, Silverwater Periodic Detention Centre advised that the offender "has no misconducts and excellent work reports.  He is a role model of a prisoner."  On 23 October 2004 he proceeded to Stage 2 of the Periodic Detention Program.

24.The offender's employer has provided a reference attesting to the offender's hard work and good character.  His relatives and a friend have provided references of his willingness to help people, his hard work and his devotion to and support of his wife and young family.  It is evident that he has extensive family support.

25.In all the circumstances it is appropriate that the sentence  be served by way of periodic detention with credit to be given for that part of the sentence which has already been served.  I propose the following orders:

1.Crown appeal against sentence allowed.

2.Sentence imposed on 24 May 2004 by Shillington ADCJ quashed.

3.In lieu thereof the applicant is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a total term of 2 years 3 months to be served by way of periodic detention each term to date from 5 June 2004 and the non-parole period to expire on 4 December 2005.

4.Order that the applicant be given credit for the periodic detention served to date  for the subject offence.  Note that the offender commenced to serve his periodic detention as and from 5 June 2004 at Silverwater Periodic Detention Centre and direct that he report to the Officer in Charge at that Periodic Detention Centre on Friday 19  November 2004 at 7pm.

5.Liberty to both parties to apply in respect of the Periodic Detention Order. The final settlement of that order pursuant to such leave is remitted to a single judge of the Supreme Court. (Smart AJ) pursuant to s 12(2) of the Criminal Appeal Act 1912.

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LAST UPDATED:               17/11/2004