R v Tran

R v TRAN
[2000] SASC 431

Court of Criminal Appeal: Prior, Olsson and Debelle JJ

1................ PRIOR J........... ............. I agree that this appeal should be dismissed. The sentence imposed was not manifestly excessive. The sentencing discretion has not miscarried, be it on the material put before the sentencing judge or because of recent initiatives taken with respect to a Drug Court. The approach of this Court is that suspension of sentences of imprisonment for this kind of offending is rare. Public deterrence is significant. The standards of punishment set by this Court are not to be eroded because of recent government initiatives (R v Mangelsdorf (1995) 66 SASR 60 at 70).

2................ OLSSON J....... This is an appeal by leave against a sentence imposed upon him by a judge of the District Court, consequent upon him pleading guilty to a charge of possessing heroin for sale.

In one sense, this was a fairly routine matter of its type, in relation to which the learned sentencing judge imposed what, prima facie, appears to have been a modest and appropriate sentence. However, particularly having regard to the potential impact of the activities of the recently created, so-called, Drug Court, considered in concert with the circumstances personal to the present appellant, Lander J was persuaded that it was appropriate for the present appeal to be considered by this Court. He thought it desirable for the Court to entertain what he described as a novel argument sought to be advanced in relation to the approach proper to be adopted to certain types of circumstance in which a prisoner has rehabilitated himself by undergoing treatment to cure his drug dependency.
It is, accordingly, desirable that attention first be directed to the relevant detailed factual background.
The appellant is a young man 22 years of age. He has no relevant criminal background. He was born in Vietnam and migrated to Australia with his family in 1980, when he was approximately two years of age. His father had, in fact, preceded the rest of the family, as a refugee, some two years prior to that time.
The family was originally resident in Sydney where the appellant's father initially performed factory work. He thereafter established his own business, first in the clothing trade and later as a fisherman, owning his own boat. In 1986 the family moved to South Australia, where they had relatives who resided at Virginia and were involved in the market gardening business.
The appellant's parents purchased a property at Virginia and commenced growing vegetables commercially. They later commenced to deal in vegetables as merchants on a large scale. The business prospered and currently employs some 15 people. It is a major supplier of certain lines to the leading supermarket retail outlets in this State.
The appellant's parents enrolled him at a leading private college in Adelaide. In 1994 he successfully completed matriculation as a student of that college. Whilst at school, on weekends and holidays, he worked on the family property as a labourer and learning its business. Having completed matriculation, the appellant enrolled at a university and commenced a four-year course leading to the qualification of Bachelor of International Business and Trade. Having successfully completed the first year of that course towards the end of 1996, he deferred, because he desired a break from study.
He then went to Melbourne and resided with a cousin, working at the Flemington markets, selling the produce of the family business. This was hard and demanding work, which necessitated him being at the markets from 1 a.m. to 8 a.m. most days. In mid-September 1997 he returned to Adelaide, because he wished to be with his girlfriend, who resided here, and to return to the family business at Virginia.
Shortly after his return to South Australia, the appellant was introduced to heroin use, through acquaintances of his friends. He initially used small quantities, but soon became dependent upon it. He smoked the drug, rather than injecting it. By January 1998 he realised that he could not control his addiction and visited his general practitioner. The doctor recommended that he be admitted to Warinilla Clinic for treatment. However, he was reluctant to accept that advice, because he doubted the efficacy of the programme at the Clinic, in his case.
In about April 1998 the appellant spoke with his parents and disclosed his problem to them. With the support of his doctor and family, he went to Melbourne and there underwent what is known as the Naltrexone Rapid Detoxification Programme. At the conclusion of the programme he returned to South Australia, clean from heroin.
Following that return, however, his relationship with his family deteriorated, because they exhibited little trust in him and required him to adhere to very strict rules. He became depressed and, by October 1998, his girlfriend broke off her relationship with him. His depression worsened and he relapsed into heroin use. He moved away from the family home early in 1999, sleeping at different premises. He resumed association with friends involved in the drug culture and became re-addicted to heroin prior to the commission of the offence presently under consideration.
On 13 May 1999 police raided flat premises at Henley Beach, where he was then residing with another person. In the lounge area of the flat the police officers found a balloon containing powder and a glass jar holding 11 more balloons, each of which contained powder. There were also other items of equipment consistent with a small-scale trading in heroin on a street basis. The powder in each of the 12 balloons weighed between .05 and .07 g. That powder contained varying concentrations of heroin, ranging from 42% up to as much as 85%. The total quantity of powder weighed 0.7 grams, which contained 0.49 grams of pure heroin.
When interviewed by the police, the appellant told them that he had been living at the flat, which was rented by the co-occupant, for two to three weeks. He conceded that all 12 balloons and their contents belonged to him and that he had purchased the heroin contained in them a day or so previously. He admitted that he had been dealing in heroin for about the previous month, on the basis that he smoked some of that which he bought and sold the rest to support his habit. He was arrested and charged with the present offence.
Following his arrest, the appellant discussed the situation candidly with his parents. He resolved to change his lifestyle and sought the support and assistance of his family. His family then rallied around him. Unfortunately, those who he knew to be associated with the drug culture persistently endeavoured to contact him, despite the efforts of his family to shield him from contacts of this type.
To his credit the appellant rejected all attempts at contacting him and, on one occasion, the family even approached the police and explained what was occurring. It is said that, by reason of this continuing problem, it was resolved that the only way in which the appellant would be able to break his addiction would be by leaving the jurisdiction and those associated with the drug culture.
In about June or July 1999 the appellant admittedly breached his bail conditions by going to Vietnam. He resided there with an aunt, who was a missionary in a Buddhist temple. He assisted her doing charity work and aiding the underprivileged. He was also engaged in meditation and prayer, whilst at the same time continuing with a Naltrexone programme, with medication supplied by his family from South Australia. During this time he met a young woman, to whom he became engaged.
In March of the present year he resolved to return to South Australia, to face up to his responsibilities and the fact that he had breached his bail. He had, once again, overcome his addiction. On return to this State he surrendered himself to the authorities and appeared before the District Court for sentence. Whilst awaiting the disposal of his case, he resumed working in the family business and has done well. He currently has the full support of his family and has been acting in the role of sales manager for the business.
When the appellant appeared before the learned District Court Judge for sentence, it was urged upon the latter that, in view of all of the circumstances and, in particular, the rehabilitation of the appellant, any sentence imposed ought to be suspended. The learned sentencing judge felt unable to accede to that proposition, but sought to recognise the attempts of the appellant to redeem himself by fixing an unusually short non-parole period. He sentenced the appellant to four years imprisonment, with a non-parole period of 18 months. In so doing he commented:-
“I have carefully considered these matters, but the circumstances personal to you do not outweigh the need in the public interest to not only impose an appropriate punishment upon those who engage in trading in heroin, the cause of much misery to others and the commission of crime to finance addiction, but also to make it clear to those who contemplate heroin trading that they will, on detection, be imprisoned, unless there is good reason to suspend their sentence."
Before this Court counsel for the appellant submitted that there was a direct parallel between the circumstances of the present appellant and what was likely to arise in the future, with persons coming up for sentence after having appeared before the Drug Court and rehabilitated themselves. It was put to us that there was now a need to focus afresh on the situation of small-scale drug offenders who had been addicted and had rehabilitated themselves.
It was inferred that, if the court maintained a policy of almost invariably requiring small time addicts/dealers actually to serve a custodial sentence upon conviction, regardless of the personal circumstances and attempts at rehabilitation, then the experiment evidenced by the creation of the Drug Court was almost bound to fail - because there was simply no incentive for such addicts to commit themselves to rehabilitative measures.
An affidavit was placed before this Court with the object of supplying information concerning the concept and mode of operation of the Drug Court. This is, in effect, a pilot programme which has recently been implemented without any statutory cover.
The stated aim of the programme is to create an environment within which, in the case of selected offenders, individualised case management plans are developed and implemented under the aegis of the Drug Court. These are designed to introduce addict offenders to, and help maintain them in, treatment and support programmes that will minimise/stop their use of illicit drugs, in order to prevent or decrease any further drug-related offending.
In practical terms, selected offenders who are prepared to plead guilty and participate in the programme, are diverted, at the Magistrates Court level, from the normal case flow management processes. They then become involved in customised and supervised rehabilitative treatment regimes. The sentencing process may well be deferred for up to twelve months, so that an offender’s progress can be monitored. The expectation is that a significant number of those concerned will ultimately appear for sentence as persons who have overcome their addiction and been rehabilitated.
The inference is that such persons may well have the expectation that their success will be recognised by a merciful sentence, possibly not involving a requirement actually to serve any term of imprisonment in the first instance.
All that can be said about the programme at this stage is that this Court cannot prognosticate as to its future attitude in circumstances of the type above identified. Nor can it really have cognizance of it for present purposes.
Because the programme is a recent development, no participants have completed it. Furthermore, we have no definitive information as to what criteria are being applied in selecting participants for diversion to it. This Court simply does not know whether a street dealer such as the appellant would have been considered eligible for such diversion.
Furthermore, it remains for future consideration what approach the Court of Criminal Appeal ought to adopt in relation to the principles which should be applied to a successful participant in the programme, particularly when it is borne in mind that there may be other circumstances, as in the instant case, in which it is said that successful rehabilitation has been achieved outside of such a programme.
It is beyond question that the principles to be applied to the sentencing of drug offenders are well settled. (R v Mangelsdorf (1995) 66 SASR 60 at 63-69.) What was there emphasised was that, having regard to the legislative policy clearly evidenced by the provisions of the Controlled Substances Act 1984, predominant factors in the sentencing process must be those of general and personal deterrence. Moreover, in that case, the Court of Criminal Appeal re-emphasised that drug addiction “provides little or no basis for leniency in cases involving trading in drugs contrary to s 32” of the statute. (See per Doyle CJ at 64-65.)
It follows that, whatever may be the policy of the executive government in encouraging the establishment of the Drug Court regime, this cannot deflect the Court from giving effect to the clear policy of the legislature, as exemplified by the reasoning in Mangelsdorf, absent some new legislative mandate giving an imprimatur to a change in sentencing principle related to the weight to be given to the rehabilitation of offenders. This problem may need to be addressed in a definitive fashion in the future, when the pattern of selection of participants in the new programme becomes clearer and those who have participated in the programme seek sentencing recognition of successful efforts on their part.
That is not to ignore what was said by Martin J in the recent case of The Queen v Lumsden [2000] SASC 49, in which he drew attention to what fell from Wood CJ at CL in R v Tran [1999] NSWCCA 109, albeit in the context of sentencing for the crime of armed robbery. There is no doubt that, as a matter of general principle, “rehabilitation of a unique and special nature should attract mercy rather than adherence to rigid standards of punishment”. However, this concept must be moderated by considerations arising under any relevant legislation such as, in this instance, the Controlled Substances Act.
In my view it is quite inappropriate to review the present appeal by reference to any possible implications which may arise in relation to the activities of the Drug Court. Not only would it be quite premature to do so, but also it is quite impossible, on the material before us, to determine whether, had the Drug Court been in existence and operation when the appellant was arrested, he would have been eligible and accepted for participation in the scheme.
This appeal must therefore be considered upon its own merits and in light of the facts peculiar to it.
The several authorities to which reference has already been made render it abundantly clear that, in relation to offences such as that now under consideration, the factor of rehabilitation is but one aspect to be taken into account. As Mr Brebner, of counsel for the respondent put it, in street trading cases such as this, the approach indicated in Mangelsdorf is that which must be adopted. This renders it crystal clear that the factors related to deterrence are not to become subservient to the factor of rehabilitation. On the contrary, except perhaps in quite exceptional circumstances, the reverse is the situation, in recognition of the clear policy of the legislature. It will be a rare case in which suspension of the inevitable custodial sentence will be justified.
It seems to me that this appeal falls to be disposed of on a quite narrow basis. The plain fact is that the appellant is quite unable to point to any specific error on the part of the learned sentencing Judge. Furthermore, it cannot reasonably be said that the sentence imposed is, on the face of it, manifestly excessive. On the contrary, the non parole period fixed is very merciful. It patently seeks to recognise all mitigating circumstances, in particular, the rehabilitation of the appellant.
Whilst one has considerable sympathy for the appellant, who must be applauded for overcoming his addiction, there is simply no principled basis upon which this Court can interfere. Indeed, to do so would be to send entirely the wrong message to other addicts who are tempted to engage in street trading to support their habit.
I would dismiss the appeal.

DEBELLE J The facts are recited in the reasons of Olsson J.
The sentence was clearly appropriate for the offending in this case: see R v Mangelsdorf (1995) 66 SASR 60. The sentencing judge mercifully ordered a short non-parole period for the express purpose of encouraging and reinforcing the appellant’s efforts to rehabilitate himself.
The introduction this year of the trial operation of the Drug Court and its programmes to assist rehabilitation of drug offenders does not give rise to any ground on which this Court should interfere with the sentence. The establishment of the Drug Court is a well-intentioned scheme to assist the rehabilitation of certain drug offenders. But the court has been established without any statutory authority. It is a pilot scheme and is aimed to assist the rehabilitation of selected offenders only. The information supplied to this Court does not state the criteria by which persons are selected for participation in the programme. It is not, therefore, possible to determine whether the appellant would qualify for the scheme. Furthermore, Parliament has not amended the provisions of the Controlled Substances Act 1984 and, in particular, the provisions of s 32(5) which clearly express the intention of Parliament that the penalties should be severe for certain kinds of drug offences, which include the offence for which the appellant pleaded guilty: R v Santalab cited in R v Mangelsdorf (supra) at 65. As this Court has held, deterrence, both general and personal, is a predominant factor, although due regard will be had to rehabilitation: see R v Mangelsdorf (supra) at 70 – 71. The appellant has not been included in the Drug Court programme. He therefore is not entitled to be sentenced under it. Unless and until Parliament alters the sentencing principles relating to drug offences, those who are not included in the Drug Court programme will be liable to the penalties prescribed under the existing statutory régime. The establishment of the Drug Court was not, therefore, a factor which in any respect is relevant to the sentencing of the appellant. There is, therefore, no error in the sentencing process. The appeal should therefore be dismissed.
There is a further factor which leads me to dismiss the appeal. The appellant broke his bail agreement and resided in Vietnam from July 1999 until March 2000. While in Vietnam, he says, he rehabilitated himself with the assistance of an aunt. On returning to Australia he surrendered to the warrant issued for his arrest. While he is to be commended for undertaking that rehabilitation, the credit for that is to some extent off-set by his breach of the bail agreement. It is difficult to determine how to balance the breach of the bail agreement with the rehabilitation. The breach tends to tell against the appellant, notwithstanding that he surrendered himself on his return to South Australia. I prefer to express no final opinion on this difficult question, particularly as this aspect was not argued. But, as a general rule, I would have thought that it would be sending the wrong message to offenders if they thought they could avoid the consequences of a breach either of a bail agreement or of the terms of parole because they were engaged in rehabilitation. There is an obviously inherent flaw in such a process of reasoning.

For all of these reasons, I dismiss the appeal.

[2000] SASC 431

19 December 2000