R v Hoon and Pouoa

[2000] NSWCCA 137

CITATION:	Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137
FILE NUMBER(S):	CCA 60073/00; 60075/00
HEARING DATE(S):	19 April 2000
JUDGMENT DATE:	19 April 2000
PARTIES :	Regina v Jade Elizabeth Hoon Regina v Aigailetai Pouoa
JUDGMENT OF:	Stein JA at 1; Dunford J at 37; Simpson J at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 99/11/0638 DC 99/11/0699
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	D C Frearson (Crown) R W Burgess (Respondent - Hoon) C B Craigie (Respondent - Pouoa)
SOLICITORS:	S E O'Connor (Crown) Brenda Duchen (Respondent - Hoon) Nikola Velcic & Associates (Respondent - Pouoa)
CATCHWORDS:	CRIMINAL LAW - drug trafficking - Crown appeal against inadequacy of sentence - error of principle - general deterrence - subjective considerations - manifest inadequacies
LEGISLATION CITED:	Criminal Appeal Act 1912, s 5D Drug Misuse and Trafficking Act 1985, s 25A(1)
CASES CITED:	Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 Malvaso v The Queen (1989) 168 CLR 227 R v Allpass (1994) 72 A Crim R 561 R v Baker [2000] NSWCCA 85
DECISION:	Appeals dismissed

IN THE COURT OF
CRIMINAL APPEAL
60073/00
60075/00
STEIN JA
DUNFORD J
SIMPSON J

Wednesday, 19 April 2000

Regina v Jade Elizabeth HOON
Regina v Aigailetai POUOA
JUDGMENT

1 STEIN JA: Before the Court are two appeals by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act 1912 against the sentences imposed by Goldring DCJ on the respondents, Jade Hoon and Aigailetai Pouoa. 2 On 10 February 2000 his Honour sentenced each offender to a minimum term of 8 months imprisonment and an additional term of 6 months, a total sum of 14 months. In the case of Ms Hoon, the minimum term expired on 27 February 2000, she having been in custody since 28 June 1999. In the case of Ms Pouoa, her custody commenced on 29 June 1999 and the minimum term expired on 28 February 2000. 3 Both respondents had pleaded guilty to a charge of ‘ongoing supply of prohibited drug’ pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for an offence under the section is 3500 penalty points or 20 years imprisonment, or both. 4 The Crown served a Notice of Appeal on Ms Hoon on 27 February 2000 and Ms Pouoa on 28 February 2000. Ms Pouoa was released to parole at the end of her minimum term. Ms Hoon was also released to parole at the conclusion of her minimum term but later, so it seems, she was arrested and charged on other matters. She is back in custody in relation to these additional matters unconnected with the subject offence. The Court is unaware as to whether her parole may be revoked or otherwise. 5 Two other related persons were sentenced by Goldring DCJ at or about the same time. Mr Surita Rojanavong was sentenced on 10 February 2000 to 8 months imprisonment to commence on 22 June 1999. At the conclusion of his sentence, he was deported to Thailand. Mr Mathew Shrubb was sentenced to 11 months imprisonment to commence on 13 July 1999 and an additional term of 6 months. 6 On 9 March a Mr Con Karamitsios was also convicted of an offence under s 25A(1). The supply in his case involved five occasions within the 30 consecutive days mentioned in the section. Other offences were taken into account on his sentencing. These included possess heroin, possess cocaine, goods in custody, supply heroin and possess heroin. 7 He was sentenced to a minimum term of 9 months with an additional term of 2 years and 3 months. In respect of Mr Karamitsios, the Court has been informed that there has been no Crown appeal. 8 The charges against the present respondents arose in the following circumstances. 9 In March 1999 police received information that a large-scale heroin distribution network was operating within the Kings Cross area. Inquiries identified the principal organiser of the network. It was established that he employed two middle level managers, a street level manager and a group of eight ‘runners’ who distributed the heroin on the street. 10 These persons were selling ‘quarter weights’ (0.25g) of heroin on a daily basis, for $80 each. 11 The method employed was that each ‘runner’ was supplied five quarter weight deals of heroin at a time after contacting the street level manager. That manager then contacted the middle level manager and this person attended a pre-arranged location, met the ‘runner’ and replenished the supply of five street deals. The ‘runner’ would hand the middle level manager cash to the amount of $350 which was derived from the previous sales. Any amount over $350 was kept by the ‘runner’ as payment. 12 The respondents were identified as ‘runners’ for the network and they were not allowed to attend the safe house run by the middle management. 13 The respondent, Ms Hoon, was approached by an undercover police officer at Kings Cross on 21 June 1999 and she supplied him with an orange balloon cap of heroin for $80. The drug weighed 0.25g. She was arrested on 28 June 1999 and took part in an ERISP wherein she admitted that she had been selling heroin for about 3 months. She herself was addicted to heroin and occasionally used part of what she was selling. She gave the proceeds to the street level manager, except for $10 from each sale which she kept. She said that as at 21 June 1999 she had not been working for the street level manager and must have been dealing on her own behalf. 14 The respondent, Ms Pouoa, was approached by undercover police on 16 June 1999 at Kings Cross. She supplied him with a blue balloon cap of heroin for $80. Later that day the same officer brought another cap from her for $80. On 22 June 1999 another undercover officer purchased a cap of heroin from her for $80. She was arrested on 28 June 1999 and took part in an ERISP, wherein she admitted to selling heroin every few days for $80 per deal retaining $10 for herself. 15 The Crown submits that the sentence imposed on each respondent is manifestly inadequate and that his Honour gave insufficient weight to general deterrence and excessive weight to subjective considerations.

16    It is submitted on behalf of the Crown that the objective seriousness of the offences are high and, in each case, the sentence does not reflect the objective criminality. The respondents participated in an ongoing systematic distribution of heroin. A significant factor in the objective seriousness is said to be the ongoing nature and commercialisation of the operation rather than the actual amounts of heroin distributed. It has to be said, it seems to me, that the sentences are, prima facie, very lenient ones.

17 Section 25A(1) of the Drug Misuse and Trafficking Act came into operation on 7 August 1998. It provides that a person who, on 3 or more separate occasions during any period of 30 consecutive days, supplies a prohibited drug (other than cannabis) for financial or material reward is guilty of an offence. Because the offence is so new, no helpful Judicial Commission sentencing statistics are, as yet, available. 18 In Ms Hoon’s ERISP she was cooperative with the police and named the middle level manager who supplied her with the drugs. She said that she had been working on and off for him since March 1999. She was charged with supplying heroin on three separate occasions between 1 June 1999 and 28 June 1999. Apart from the one supply to the undercover officer on 21 June, some of the answers in the ERISP were equivocal and ambiguous leading his Honour to observe that she would not have been charged with this offence had she not been totally frank with the police. It was on the basis of her admissions that she was charged with a breach of s 25A(1). While there was no direct evidence of three separate supplies during the period charged, she pleaded guilty and her plea admitted the supply alleged in the charge. 19 Turning to the objective seriousness of the offence in respect of Ms Hoon, the Crown relies on the ongoing nature and commercialism of the operations, rather than the amounts involved. However, the amount of drugs supplied is still relevant, as is the number of times the drug was supplied during the relevant period. Here, the amount of heroin supplied on any one occasion was 0.25g. Three occasions are specified in the charge within the period mentioned. It is to this offence that she pleaded guilty, even though her ERISP may have admitted to other earlier acts of supply. 20 As to the commercialisation of the operation, it is plain that Ms Hoon was not in any way involved in the administration of the organisation. She did not receive any real profit from the commercialisation. The seriousness of being involved in an organisation concerned with the distribution of drugs must be acknowledged, as his Honour did. Nonetheless, both Ms Hoon and Ms Pouoa were ‘runners’ on the lowest rung of culpability. 21 Turning to the subjective circumstances of Ms Hoon, there is an obvious and direct link between her addiction and the offence. The offence was not committed purely for monetary gain. She was 19 years old and her age and addiction placed her in a vulnerable situation. His Honour observed that these factors appeared to have led her (and also Pouoa) into being recruited into a sophisticated distribution operation. 22 Ms Hoon gave evidence about her background which his Honour found to be frank. Her difficult background was outlined. Her parents separated when she was three. She was assaulted by her step-father and went to live with her father when she was 13 years. She started using drugs when very young and has a record for a number of drug-related matters. This was, however, her first time in prison. She was frank with his Honour about her difficulty in dealing with her drug problem and, perhaps with refreshing honesty, could not promise to overcome her addiction. His Honour was entitled to find that there was some ‘possible chances of rehabilitation’ and to find ‘special circumstances’, as he did. 23 A pre-sentence report was also before his Honour. It was not in our appeal papers but has been handed to the Court. The report corroborates a deal of Ms Hoon’s evidence to his Honour and does not assist in her opportunity for rehabilitation. 24 Bearing in mind the facts upon which Ms Hoon was sentenced, her cooperation with police, her subjective circumstances and her plea of guilty, I do not see that the sentence has been shown to be manifestly inadequate. It is necessary for the Crown to demonstrate an error in sentencing principle. See Griffiths v The Queen (1977) 137 CLR 293, Malvaso v The Queen (1989) 168 CLR 227 and Everett v The Queen (1994) 181 CLR 295. 25 I can see no error in principle. His Honour gave appropriate weight to general deterrence. Recently in R v Baker [2000] NSWCCA 85, Spigelman CJ noted the difficulties of Crown appeals succeeding where no particular error can be identified in the sentencing process and the Crown relies on an assertion of manifest inadequacy as the basis for the conclusion of some error in principle. 26 Another factor which I take into account in relation to both respondents, is a justifiable sense of grievance that they may have on being re-committed to prison. This arises from circumstances relating to two other ‘runners’ whom I have already mentioned. The defendant Rojanavong was sentenced to an 8 months fixed term by his Honour at the same time that the sentences on these respondents were imposed. It seems that his Honour did this because Mr Rojanavong was a Thai national and was to be deported, which has in fact occurred. However, he was also 19 years of age, around about the same age as these two respondents, and he was a ‘runner’ in the same organisation in similar circumstances to these respondents. He was not given any additional term of imprisonment. 27 The other matter of concern in relation to a sense of grievance relates to the defendant Con Karamitsios, who was also a ‘runner’, and in relation to whom I have mentioned was sentenced on 9 March 2000 to a minimum term of 9 months and an additional term of 2 years and 3 months. He was 25 years at the time - quite a deal older than these respondents - and the offence under s 25A(1) with which he was charged related to the supply on 5 occasions within the stipulated period. As I have mentioned, he also had a number of other offences which were taken into account. He has been released to parole following the serving of his minimum term and, importantly, has not been the subject of any Crown appeal. 28 To summarise, I do not think that the Crown has demonstrated any manifest inadequacy in the sentence or error of principle in relation to Ms Hoon. Further, one must not lose sight of the element of double jeopardy involved in Crown appeals. As I have mentioned, both respondents have now served their minimum terms. 29 I would dismiss the Crown appeal regarding the respondent Ms Hoon. 30 Turning to the respondent, Ms Pouoa, similar considerations apply. Her position is, to some extent, factually different to that of Ms Hoon. She supplied 0.25g of heroin to undercover police on three occasions between 16 and 22 June 1999. Like Ms Hoon, she was a ‘runner’ engaged in street sales. She was aged 18 years at the time and had become an addict at the age of 17 years. Feeding her drug habit was the principle reason for her participation in the organisation. 31 In terms of subjective considerations, while addiction is no excuse for supplying drugs, the offence was not for greed but doubtless to feed her habit. While the prospect of conviction, given the evidence, was probable, her plea of guilty and admissions should be given weight. 32 His Honour also had the benefit of a pre-sentence report and a report from a psychologist, both of which supported her prospects of rehabilitation. 33 The reports reveal that the respondent Ms Pouoa’s father died when she was aged 8 and she was raised by her mother alone in circumstances of considerable hardship. She was young and immature and subject to negative peer pressures which contributed to her entering the drug culture. There was a suggestion in the psychologist’s report which indicated a rebellion on her part against a very strict religious upbringing. She had not been to prison before and had two previous convictions for possessing drugs. His Honour found ‘special circumstances’, especially relating to her youth and concluded that her sentence should be the same as imposed on Ms Hoon. 34 Again, I do not see that his Honour committed any error of principle and I am satisfied the Crown has not demonstrated the sentence imposed was manifestly inadequate. In my opinion, the sentence was within his Honour’s discretion and this Court ought not intervene. 35 In both of these cases there was a substantial delay in sentencing the respondents while they remained in custody. This resulted in the respondents completing their minimum terms prior to the hearing of the Crown appeals. A re-committal to prison after seven weeks on parole for the respondent Ms Pouoa, heightened in the case of a youthful offender, may prejudice her prospects of rehabilitation. These facts would lead me, assuming I had found the sentence to be manifestly inadequate, to decline to intervene, see R v Allpass (1994) 72 A Crim R 561.

36    I propose that the Crown appeal regarding the respondent Ms Pouoa also be dismissed.

37 DUNFORD J: I agree that the Crown appeals should be dismissed in each case, but I do not agree that his Honour's Remarks on Sentence disclose no error of principle and, in my view, the sentences were demonstrably inadequate. 38 Section 25A of the Drug Misuse and Trafficking Act (1985) was introduced in 1998 following a recommendation of the Royal Commission into the New South Wales Police Service. It was submitted that Miss Hoon was charged with only three instances of supplying small amounts, but, in my view, s 25A involves more than that, and the objective criminality of offences under that section is considerably greater than the supply on three or more occasions. 39 The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply. As pointed out in the Minister's Second Reading Speech in relation to the relevant legislation, the section is designed to:

" ... target dealers who have organised their forces in such a way as to limit the full effect of the Drug Misuse and Trafficking Act 1985 . . . "
He went on:
"The amount of drugs which are supplied is immaterial to an offence under section 25A, either within each individual offence or in total."

40    Obviously the section is primarily directed to those persons higher up the organisation than the respondents in this case, but the section is wide enough to cover "runners" such as the respondents, who can fairly be described as "retail couriers". 41    Distribution networks cannot operate without those at the lowest levels and those persons play an essential part in the operation, albeit, a lesser role than those higher up in the organisation. Accordingly, offences under the section, even by persons fulfilling the functions performed by the respondents in this case, must be regarded as more serious than offences under s 25. 42    In my view, the sentences imposed in these cases were manifestly inadequate and his Honour failed to pay significant regard to the objective seriousness of the offences and to general deterrence. In the light of the small additional terms imposed, I also consider that his Honour, although correctly finding special circumstances existed, failed to have sufficient regard to rehabilitation. In my opinion, both the minimum and the additional terms should have been significantly greater. 43    However, the Court's power to uphold Crown appeals is discretionary. I have regard to the sentences imposed on other offenders at the same level, particularly Mr Rojanavong, Con Karamitsios and Mathew Shrubb, although I understand there is a Crown appeal in relation to Shrubb listed for hearing in June, and consider that these respondents would have a justifiable sense of grievance if their sentences were increased. 44    In addition, both have completed their sentences, although Miss Hoon has since been returned to custody on a remand in relation to another matter. To be released in February and returned to custody in April without any allegation that she has failed to abide by the terms of her parole and without any allegation that she has committed any other offence would impose considerable hardship on Miss Pouoa. 45    Another difficulty in the case is that, from the material available to his Honour at the time, the prospects of rehabilitation in relation to Miss Pouoa appeared considerable better than those in relation to Miss Hoon, but Miss Hoon has provided more additional information to the police relating to co-offenders, and was not charged with as many individual acts of supply. 46    Balancing these considerations created problems of their own, and ultimately the learned Crown Prosecutor has submitted today that they should both be treated the same. It is for these reasons that I agree the Crown appeal should be dismissed in each case. 47    SIMPSON J: I agree with the orders proposed but again, I take a slightly different approach. 48    In the case of Miss Pouoa, it was proper for the sentencing judge to take account of and give considerable weight to the strong evidence of rehabilitation, having particular regard to her youth, notwithstanding the serious nature of the offence. That evidence justified the judge in taking what would otherwise have been an unusually lenient course. such a course was in the interests not only of Miss Pouoa but also of the community in effecting her rehabilitation. 49    This was a case in which it was open to the Judge to conclude that her prospects of rehabilitation deserved greater weight than the community’s demands for retribution or of general deterrence. 50    For those reasons, I agree with the presiding judge that the sentence imposed of Miss Pouoa was not manifestly inadequate. 51    Miss Hoon’s circumstances were different. There was absolutely no evidence of any prospect of rehabilitation. Indeed, as I read the evidence given by her - and of course I do not have the advantage of anything other than the words on the page - she showed no sign of having any real wish to overcome her heroin addiction. That produces a grim prospect of rehabilitation such that rehabilitation could not seriously have been regarded as an issue. That would have justified the sentencing judge in taking a different approach in relation to her sentence. 52    However, there were other factors, including questions of parity, that operated in her favour. I doubt that, having regard to what I have said about rehabilitation, parity alone would have justified the sentence that was ultimately imposed on Miss Hoon, but there was also the significant effect of her plea of guilty, her youth, and the matters referred to by the others members of the Bench. 53    I indicate to the view that, notwithstanding all of those matters, the sentence at the time it was imposed was manifestly inadequate but in the exercise of discretion in relation to Miss Hoon I would dismiss the Crown appeal. 54    STEIN JA: Accordingly, the orders of the Court are that both appeals be dismissed.

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