Regina v Luong

[2002] NSWCCA 238

CITATION:	Regina v Luong [2002] NSWCCA 238
FILE NUMBER(S):	CCA 60813/01
HEARING DATE(S):	17 June 2002
JUDGMENT DATE:	17 June 2002
PARTIES :	Regina v Thuan On Luong
JUDGMENT OF:	Greg James J at 23; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/3239
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

COUNSEL :	(A) H Dhanji (C) G I O Rowling
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor
CATCHWORDS:	Sentencing - applicant volunteers unknown information as to his criminality and sentence being served on protection - no question of principle.
LEGISLATION CITED:	Nil
CASES CITED:	Nil
DECISION:	See para 22

IN THE COURT OF
CRIMINAL APPEAL

GREG JAMES J

SMART AJ

Monday 17 June 2002

REGINA v THUANH ON LUONG

JUDGMENT

1. SMART AJ: Thuanh On Luong seeks leave to appeal against the asserted severity of a sentence of imprisonment of five years six months, with a non-parole period of three years for the offence of between 15 February 2001 and 15 March 2001 supplying a prohibited drug on three or more separate occasions for financial reward.

2. The offence of goods in custody ($195) was taken into account. That was the sum the applicant had when arrested. He conceded $150 was the proceeds of three sales. I also take this into account.

3. About 12.50 pm on 15 March 2001 the applicant spoke with a number of persons in Adolphus Street, Canley Heights. A short time later, he was a passenger in a blue Ford Telstar driven by Truong Quoc Nguyen. After a brief period, police signalled for the vehicle to stop, which it did. The applicant dropped four balloon packages onto the ground. These were retrieved by the police. A mobile phone was taken from the centre console of the vehicle.

4. In his recorded interview, which commenced about 2.38 pm, the applicant told the police that he first started dealing in cocaine about two months previously. He was recruited by a man called Brad at Cabramatta Railway Station, who offered him the opportunity to start up a little money making business. This was attractive to the applicant, who was unemployed. Brad required the applicant to sell drugs which Brad supplied to him.

5. The applicant preferred to sell cocaine rather than heroin. After the applicant agreed to act as a sales agent for Brad, the applicant acquired a mobile phone and arranged for someone to purchase a prepaid number for it, and a prepaid SIM card. The applicant declined to disclose the name of the person or persons who made the purchases for him.

6. The applicant told the police that his mobile telephone number was passed around. His customers telephoned him, a meeting was arranged with little caps being sold for $50 each. The applicant said that he did not know how many sales would be made on any one day. He estimated “Maybe about 80 or something”, and that he would therefore receive about $4,000 per day. Out of that sum he would pay the supplier about $3,000. He said that he received a quantity of powder from his supplier and that “they” divided it up into eighty pieces.

7. He said that he was only supplying his customers for two days per week and that he had been doing so on and off. He also said that Brad had not given him much cocaine in March, as it was hard to get rid of with so many police around. He had had to take it easy. He had seen Brad earlier on 15 March 2001, at the Bonnyrigg Plaza car park, but had not obtained any more supplies. He still had eight little caps to sell.

8. In his evidence, the applicant said that on a good day he sold eighty caps per day. That seems a high figure. It raises a question as to the accuracy of the applicant’s estimate. The applicant was a user of cocaine. He had become a user when he and his acquaintances went nightclubbing. He said that he became addicted to cocaine about six months prior to his arrest, and was consuming about $200 worth of cocaine per day.

9. Senior Constable Weinstein said that after the applicant was arrested his mobile telephone rang a large number of times, and that he (Weinstein) Senior Constable went and met many of the callers, who wanted to make purchases of cocaine, and spoke of purchases previously made from the applicant.

10. The police estimated that over a two month period the applicant’s sales of cocaine in the streets and parks had totalled $64,000. That figure was based on eighty sales at $50 per little cap per day, two days per week, for two months. That assumes, of course, that every sale day was a good day.

11. The striking features of the applicant’s record of interview with police are its frankness and the way in which it revealed the extent of the applicant’s criminality, and proved the Crown case. Otherwise, the Crown would have had to rely on the telephone calls and the evidence of those customers, if any, who were prepared to give evidence, plus the dropping of the four balloons containing cocaine.

12. The applicant is entitled to a substantial discount for the extent of his admissions, for supplying information which the police did not have, and would have been hard pressed to obtain, and his early plea of guilty. In his evidence, the applicant said he was so open with the police because he saw it as a chance to quit drugs and to stop living a criminal life. This evidence, and the underlying frankness augur well for the applicant’s rehabilitation, including the cessation of his involvement in drug taking activity.The judge was satisfied that to a significant extent the plea of guilty was motivated by contrition.

13. The applicant was born on 13 January 1981 and was thus aged twenty at the time of the offences. He continues to have the support of his family, who have been visiting him while he is in custody. The judge stated that the applicant had completed year 12, whereas he left school aged eighteen years, without doing so. The employment which he had had consisted of casual and unskilled employment of short duration.

14. While in gaol, prior to being sentenced, the applicant was seriously assaulted. Toward the end of March 2001, the applicant was approached by a fellow inmate who required him to assist in bringing heroin into gaol to distribute it. When he declined to do so, he was attacked. After receiving medical attention, he was placed on protection and will remain on protection for the duration of his sentence.

15. As at the date of sentencing, he was working in gaol, and he had done a number of courses. He was intent on rehabilitating himself. He said that he had learned from the experience of others whom he had encountered in gaol.

16. The judge noted that the applicant had prior convictions, principally for serious driving offences. On 10 January 2001, he was sentenced to six months periodic detention for driving whilst disqualified. He was also subject to a bond of twelve months for possession of a prohibited drug.

17. After taking into account the objective gravity of the offences, which is considerable, the early admissions, the early plea of guilty, the applicant’s contrition and the matters disclosed by the applicant to the police, which they would not otherwise have known, and the applicant’s subjective features, I am persuaded that the sentence of five and a half years is manifestly excessive.

18. The Probation and Parole officer has written:

“The offender presents as an immature young man who was easily persuaded to participate in an activity which he said he knew to be fraught with risk.”

19. The judge correctly found special circumstances, being the combination of the applicant’s sentence being served on protection, his first time in full time custody, his age and his need for a considerable period under supervision once released to parole, to ensure that he does not return to a life of crime. I would also find special circumstances, and for the same reasons.

20. Since his sentencing, the applicant has continued to complete useful courses to improve his skills. At the present time he is working on electrical cables. He presently has a C1 classification. He was recently offered a C2 classification if he agreed to go off protection and go to the gaol at Windsor to do the Young Offenders program. Initially he agreed to do this, but later changed his mind, because he heard that some of the people who assaulted him could be at Windsor. He was not prepared to go off protection and thereby risk meeting up with his former assailants.

21. Counsel for the applicant took some specious technical points. He complained that the particular acts relied upon by the Crown as instances of supply had not been particularised, and should have been. They appeared with clarity from the applicant’s record of interview. No objection was taken at the sentencing hearing because the acts relied upon by the Crown were known to the applicant and had been volunteered by him. The sentencing hearing did not miscarry.

22. I propose the following orders:

1. Leave to appeal granted.
2. Appeal allowed; sentence quashed.
3. In lieu of the sentence imposed and taking into account the offence of goods in custody, the applicant is sentenced to imprisonment for a period of four years, commencing on 15 March 2001, with a non-parole period of two years, commencing that day and ending on 14 March 2003, on which day the applicant is eligible to be released on parole.

23. GREG JAMES J: I agree. The orders of the Court, therefore, will be as proposed by Justice Smart.

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