R v Pham No. Sccrm-99-69 Judgment No. S308

[1999] SASC 308

R v PHAM
[1999] SASC 308

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

1. DOYLE CJ       I agree.

2. BLEBY J          I agree that the sentence should be varied in the manner proposed and for the reasons given by Wicks J.  As to the question of suspension of the sentence, I consider this to be a borderline case, but in the end, I am persuaded that general deterrence from embarking upon any form of heroin trading must be of paramount consideration.

3. WICKS J The appellant was charged on information with knowingly taking part in the sale of heroin to another person contrary to s 32(1)(d) of the Controlled Substances Act 1984. The offence was committed on 17 December 1998. The appellant pleaded guilty to the offence in the Magistrates Court on 2 March 1999 and was committed to the District Court for sentence.

4. The learned sentencing Judge ordered that the appellant be imprisoned for four years with a non-parole period of one year and that both the head sentence and non-parole period should run from the date of sentence, 9 April 1999.  The learned sentencing Judge indicated that, but for the plea of guilty at an early stage, the head sentence would have been a period of five years and six months.  An order for forfeiture of $70 in the appellant’s possession was made.

5. The appellant was given leave to appeal to this Court on 17 June 1999.  The grounds of appeal were that the learned sentencing Judge erred in that:

6. he failed to give sufficient consideration in the question of whether the sentence of imprisonment should have been suspended;

1. he failed to give sufficient consideration to:

(a)     the amount of heroin in the appellant’s possession;

(b).... the appellant’s personal circumstances including his good character;

(c).... the unusual circumstances of the appellant’s offending, and

(d).... the impact a custodial sentence would have on the appellant’s mother;

1. in all the circumstances the sentence of imprisonment was manifestly excessive.

1. On the date of commission of the offence, plain clothes police observed the appellant standing against the passenger window of a Ford motor car parked in Cowan Street, Angle Park.  The police approached the appellant but he ran away.  The police gave chase and he was apprehended.  He had $70 cash in hand.  The passenger in the motor vehicle was found to be in possession of two pieces of alfoil containing a white powder which was subsequently analysed and found to be heroin.  It was also weighed subsequently and found to be a weight of 0.12 grams of powder containing 0.07 grams of heroin.  The appellant admitted handing over the heroin in exchange for $70.

2. Shortly before the above incident the appellant met a person known to him only as “John” at the Adelaide Casino.  They saw each other on seven or eight occasions, becoming increasingly familiar.  On one of the last occasions, the appellant was asked by John how he was.  He explained that he was under a great deal of stress and very upset.  He had recently separated from his girlfriend and was feeling depressed.  As a result of making that comment John offered him something to smoke which he believed to be a hard drug.  At the time he did not believe what he was smoking to be heroin.

3. On a subsequent occasion, the appellant was given by John more of the same substance.  After the second incident one thing led to another and John asked the appellant to take part in a sale at Angle Park.  That incident has already been mentioned.  At the time of the sale the appellant did not know that the substance in the packets was heroin but, nevertheless, appreciated that it was a significant hard drug.

4. The appellant had not been involved in the sale of drugs on any previous occasion.  His decision to assist his new found friend in this matter was a spontaneous one. He was asked to deliver the alfoil packets referred to earlier in these reasons to an occupant of a parked car.  There is no doubt that the appellant was engaged in a sale by retail of a hard drug to an end user requiring it for consumption or use.  In the transaction in question, the appellant was used as a pawn by John.  At the time of the sale at Angle Park, the appellant knew that he was dealing in a hard drug but did not know that the drug in question was heroin.  In the course of submissions on penalty, the learned sentencing Judge accepted that, judged subjectively, the appellant may not have appreciated that what he was dealing in was heroin.

5. The appellant is 36 years of age.  He has lived in Australia since 1983.  He was born in Vietnam and emigrated to Australia with various members of his family.  His father died in Vietnam.  The appellant has, in effect, been the head of the family since their emigration to Australia.

6. The appellant currently resides with his mother who is now elderly and is not in good health.  In Vietnam, she sustained significant injuries in a motor cycle accident and has been unwell ever since.  The appellant is solely responsible for her care.  She has required his assistance for the last five years.  Given her health difficulties, she is very concerned about her future.  She does, however, have a married daughter who may need to render assistance.

7. The learned sentencing Judge had before him and took into account a report of Dr K Y Ting.  In his report, Dr Ting said:

   "I can also confirm that I have been his mother Mrs Ho Tu Ngen’s doctor for more than 10 years.  He is Mrs Ho’s main carer as he is her only son.  (She has a married daughter who has her own life and family to care for).  Mrs Ho suffers from chronic lower back pain, headache and right shoulder pain.  Her headache can be extremely severe and in fact she had been taken by ambulance to Accident and Emergency Department of Queen Elizabeth Hospital in the past because of severe headache.  She also suffers from chronic tinnitus and insomnia for more than 6 years.  She further suffers from chronic fatigue/lethargy and dizziness of uncertain aetiology possibly related to a degree of chronic depression.

   She is quite dependent on her son to look after her in general and to also take her to see doctor and to shopping etc.

   I am quite sure Mrs Ho would suffer both mentally and physically in the event that her son received a custodial sentence."

1. According to the appellant’s antecedents, he has only one conviction and that is for driving without due care in 1995.  In particular, he appears to have no convictions relating to the use, possession or sale of drugs.

2. From the sentencing remarks, the learned Judge appears to have taken into account the amount of heroin in the appellant’s possession, his personal circumstances, the circumstances as to how he came to offend and the impact a custodial sentence would have on his mother.  There is no substance to the grounds of appeal in relation to these matters.  It remains to consider whether the sentence was in all the circumstances manifestly excessive and whether the sentence of imprisonment should have been suspended.

3. In considering the first of those matters, I have had regard to the personal circumstances of the appellant and in particular to the fact that he is the principal carer of an elderly and sick mother.  I have had regard to the particular circumstances of this case.  The appellant has got into bad company and has been led astray.  He has no previous record of criminal behaviour and in particular appears to have had no previous involvement with illicit drugs.  I have had regard to the fact that a very small amount of heroin was involved in the transaction in question.  There is no evidence that this transaction formed part of a systematic course of conduct involving the sale of heroin either by wholesale or by retail.  I have also considered the fact that there must be an adequate deterrent in matters of this kind in order to minimise the incidence of re-offending and in order to deter others from following the same path.

4. The decision of this Court in R v Katsambas (1997) 97 A Crim R 51 provides guidance in respect of the range of sentence applicable. In that case, Cox J, in presiding over the Full Court, said at p55:

   "For the typical small scale retailer of heroin, the sentencing process generally begins at about 6 years ...  That will accommodate the common type of case in which an actual sale or attempted sale is proved and the dealer is found with some packets or a substantial amount of money or both in his possession ...  If, as in the case of Meyer, the evidence proves directly or indirectly no more than an isolated transaction, the starting point will be lower."

1. In my opinion the sentence imposed in this case is manifestly excessive and should be set aside.  The appellant should be treated more leniently than a small scale retailer.  It would appear that the transaction in question was the only sale in which he had participated.  It was an isolated transaction.  The appellant’s action in assisting his friend in the way he did was a spontaneous one.

2. The starting point taken by the learned sentencing Judge was five years and six months.  For these reasons I consider that the starting point was too high.  I would take as my starting point four years.  I would propose a sentence of four years with a reduction of 25% for a plea of guilty at an early stage.  This would leave a head sentence of three years.  I would propose a non-parole period of nine months; both the head sentence and the non-parole period to run from the date upon which the appellant was first taken into custody.  I would re-impose the forfeiture order made by the learned sentencing Judge.

3. That leaves the question of suspension.  R v Mangelsdorf (1995) 66 SASR 60 dealt with the imposition of a sentence in respect of the possession of heroin for sale. In delivering the principal judgment of the Full Court, Doyle CJ referred to the question of suspension in the following terms at p 70:

   "For offences of such seriousness, suspension must be rare indeed.  In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the judge made.  To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence."

1. I take those words to be of general import in relation to dealing with drugs.  I do not read them as limited merely to cases where a course of conduct is established.  I would not suspend the sentence in this case.  The circumstances do not justify suspension.

2. I would allow the appeal.  I would set aside the sentence imposed by the learned sentencing Judge and substitute a head sentence of three years with a non-parole period of nine months; the head sentence and non-parole period each to run from the date upon which the appellant was first taken into custody.  I would decline to suspend the sentence.  I would impose an order for forfeiture of the $70 which was in the possession of the appellant when he was arrested.