Vu v R

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: VU v. REGINA [2006] NSWCCA 188

FILE NUMBER(S):
No. 2005/1852

HEARING DATE(S): Friday 17 February 2006

DECISION DATE: 22/06/2006

PARTIES:
TIEN HUNG VU v. REGINA

JUDGMENT OF: James J Buddin J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0518

LOWER COURT JUDICIAL OFFICER: Williams, DCJ.

COUNSEL:
Crown: P. Miller
App: I. Barker, QC./S. Robson

SOLICITORS:
Crown: S. Kavanagh
App: AKN & Associates

CATCHWORDS:
Standard non-parole periods where plea of guilty - approach to be taken - offences assessed by sentencing judge in the middle range of objective seriousness - relevant matters in assessment - whether gambling and drug addiction relevant and, if so, assessed - whether offer to supply heroin to be treated in the assessment as objectively serious as an actual supply of heroin - in assessment of objective seriousness whether error in taking into account other offences - mitigating factors - whether taken into account - error in relation to special circumstances - such a finding warranted - appeal upheld in relation to the total non-parole period - non-parole period reduced by a period of two years.

LEGISLATION CITED:
Drug Misuse & Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
(1) Leave to appeal should be granted. (2) The appeal should be upheld in relation to the total non-parole period. (3) I am of the opinion that a finding of special circumstances should be made. I am, accordingly, of the view that the sentences imposed by the District Court should be set aside and the applicant should be re-sentenced as follows: (a) as to Count 2, the applicant is sentenced to a fixed term of imprisonment of six years and nine months to commence from 25 July 2003 and to expire on 24 April 2010. The fixed term is intended to be the equivalent of the non-parole period determined by the sentencing judge; (b) as to Count 1, (including the Form 1 offence) the applicant is sentenced to a non-parole period of seven years to commence on 25 July 2005 and to expire on 24 July 2012 and a balance of term of five years commencing on 25 July 2012 and expiring on 24 July 2017. There should be a partial cumulation of the sentence to reflect the total criminality. (4) The earliest date on which the applicant will be eligible for release on parole is 24 July 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1852
JAMES, J.
BUDDIN, J.
HALL, J.
THURSDAY 22 JUNE 2006

TIEN HUNG VU v. REGINA

Judgment

JAMES, J: I agree with Hall, J.
BUDDIN, J: I agree with Hall, J.
HALL, J: On 28 January 2005, the applicant, Tien Hung Vu, was sentenced in the District Court of New South Wales in respect of two counts as follows:-
Count 1:The first count on the indictment charged that between 9 July 2003 and 12 July 2003, the applicant did offer to supply a prohibited drug, namely, heroin, being an amount which was not less than the large commercial quantity.
Count 2:The second count on the indictment charged that on 25 July 2003, the applicant did supply a prohibited drug, namely, heroin, being an amount not less than the commercial quantity.
In respect of the first count, the applicant asked the Court to take into account a further offence on a Form 1, being a charge that between 9 June 2003 and 11 June 2003, he did supply a commercial quantity of heroin.
The two counts were laid under s.25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty in respect of the first count was life imprisonment: s.33(3)(a) of the Drug Misuse and Trafficking Act 1985.
In respect of the second count, the maximum penalty was a term of imprisonment of 20 years: s.33(2)(a) of the Drug Misuse and Trafficking Act 1985.
The above offences are specified offences in the Table to the provisions of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999, being matters in relation to which standard non-parole periods of 15 years and 10 years respectively apply where the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to that Division.
The sentencing judge determined that the applicant was entitled to the benefit of the maximum discount for the pleas of guilty in accordance with the guideline judgment in Regina v. Thomson & Houlton (2000) 49 NSWLR 383, namely, 25%.
Sentences imposed
The sentences imposed on 28 January 2005 were as follows:-
(a)In relation to Count 2 on the indictment, the applicant was sentenced to a minimum period in custody of six years and nine months. The commencement date of the sentence was 25 July 2003. A total term of nine years was specified to expire on 24 July 2014.
(b)In relation to Count 1 on the indictment and the Form 1, the applicant was sentenced to a minimum period in custody of nine years. The sentence was partially accumulated to date from 25 July 2005. The earliest date upon which the applicant was to be released to parole was 24 July 2014. A total term of 12 years was specified to expire 24 July 2017.
The total effective sentence, accordingly, was a term of imprisonment of 14 years commencing on 25 July 2005 and to expire on 24 July 2017. The non-parole period in respect thereto is a period of 11 years commencing on 25 July 2003 and to expire on 24 July 2014.
Factual matters
On the sentencing hearing, a factual summary was tendered along with other material. The factual matters referred to below have been largely drawn from the summary and that material. The facts are set out in relation to the offences in chronological order.
(a)The Form 1 offence (supply of 729 grams of heroin)
On 10 June 2003, police were contacted by personnel from a coach company who were suspicious of a male person who had paid for a sealed cardboard box to be placed on a bus to Brisbane as unaccompanied freight.
Police attended and opened the box which was found to contain packages of white powder, subsequently analysed and found to be heroin (gross weight: 729 grams with a purity of 66%).
On 11 June 2003, a male person attended at the Roma Street Bus Depot in Brisbane to collect the cardboard box which had been substituted by police. That person was arrested.
The last mentioned person informed Queensland Police that he had flown to Sydney on 10 June 2003 in possession of $300,000. He caught a taxi to an address at 25 Sharpe Street, Belmore which was the home of the applicant. He stated that he there met him and gave him the money for the heroin. The applicant counted the money before driving him to a bus depot in St. Peters. He was directed by the applicant to another vehicle.
The male person then walked to the vehicle and was given a sealed cardboard box by an unknown Asian male. The box was freighted by bus to Brisbane. The male person then flew back to Brisbane where he attended the bus depot to collect the box. He expected it to contain 700 grams of heroin. Following his arrest, the male person was registered as an informant.
(b)Count 1 (offer to supply, between 9 July 2003 and 12 July 2003, four and a half, 350 gram blocks of heroin)
On 11 July 2003, the applicant contacted the abovementioned informant using his intercepted telephone service. The applicant inquired if the informant was coming to Sydney that week. During a number of conversations, the applicant advised the informant of the availability of four and a half, 350 gram blocks of heroin for sale. The quantity of the substance under discussion was, accordingly, 1,575 grams which is in excess of the large commercial quantity of 1,000 grams specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985. The price for the blocks was stated to be $550,000 or $120,000 for one block. Negotiations ensued in relation to the possible supply of the heroin to the informant. Some several days later, the applicant informed the informant that he was unable to supply him with the four and a half blocks of heroin, stating that the heroin had “gone”. By reason of the significance of this last mentioned conversation, I reproduce the intercept material recorded on 18 July 2003
Extracts of incoming call from RL to the applicant (H)
“H:        Hello
RL:         Yeah g’day mate.
H:           Yeah.
RL:         How are ya?
H:           Good.
RL:         Um, so are those – is that four and a half blocks?
H:           It’s gone, it’s gone, it’s gone.
RL:         Gone?
H:           Yeah.
RL:Yeah, I wasn’t sure if I could get all the money anyhow, but – as I’d have to borrow you know a few hundred thousand to do that, but um, so that two, two for two eighty, yeah?
H:           Yeah, alright.
RL:         Yean um, Thursday, Friday, definitely, is that okay?
H:           Yeah.
RL:         Definitely, I won’t fuck you around, I promise.
H:           Yeah, okay.
RL:         Yeah.
H:           Okay.
RL:         Alright. Um, yeah, so is there anything else?
H:           No, if there anything I give you a call.
RL:Yeah, Yeah um, yeah well just give me a call, um, but definitely I won’t fuck you around.
H:           Yeah, okay.
RL:         Alright.
H:           Okay, bye.
END OF CALL”
(c)          Count 2 (supply 792.1 grams of heroin on 25 July 2003)
On 23 July 2003, the applicant and a co-offender flew to Brisbane and met the informant. Their conversation was recorded. It and other telephone calls were in relation to the applicant organising to supply the informant with 700 grams of heroin. The transaction was arranged to take place in Sydney on 25 July 2003.
The applicant required $300,000 cash in exchange for the supply of the heroin.
On 25 July 2003, the applicant picked up the informant at the Sydney Domestic Airport and there was a conversation between them in relation to the supply of the 700 grams of heroin that was to take place. The applicant drove the informant to the bus depot at St. Peters. The informant told the applicant that he had sent the money to Sydney by bus freight. The applicant waited in his vehicle whilst the informant entered the bus depot supposedly to collect the money. The informant returned to the applicant’s vehicle and placed a box on the back seat which purported to contain $300,000. The applicant commenced to drive away upon which police stopped the vehicle. The applicant was then placed under arrest.
A short time later, a co-offender was identified in a second vehicle and was stopped. Located in the vehicle was a sealed cardboard box which was found to contain an amount of white powder subsequently analysed and determined to be heroin with a gross weight of 792.1 grams with a purity of between 56.5% and 57.5%. The co-offender was placed under arrest.
Grounds of appeal
The applicant seeks leave to appeal against the sentences and relies upon a number of claimed errors made by the sentencing judge and additionally claims that the total sentence was manifestly excessive. The grounds of the application are as follows:-
1.His Honour, the learned sentencing judge erred in law in the following respects:-
(a)in not making due allowance for the appellant’s gambling and drug addiction;
(b)in treating count 1 as though (contrary to the fact) heroin was actually supplied and the community thereby harmed;
(c)in attributing undue importance to the quantity of heroin contemplated by the offer the subject of count 1;
(d)in regarding an “ongoing supply of heroin” as relevant to his assessment of the objective seriousness of the offences;
(e)in failing to correctly assess the objective seriousness of the offences;
(f)in not according adequate significance to the appellant’s good record, relative youth, family circumstances and prospects of rehabilitation;
(g)in failing to take account of the appellant’s assistance to the police;
(h)in failing to accord adequate significance to sentencing statistics.
2.The total sentence was manifestly excessive.
An additional ground was added at the hearing in the following terms:-
“His Honour erred in holding that he had not been asked to find special circumstances and that he could see no basis upon which special circumstances could be found.”
The personal background of the applicant
The applicant was born on 6 March 1976, he therefore being 27 years of age at the time of the offences and presently is 30 years of age. He is a married man with two children aged two and four. He was born in Vietnam and spent some of his earlier and formative years in a Hong Kong refugee camp before coming to Australia at the age of 16 in 1993 with his mother and sisters.
Following his father’s death in 2001, he claims to have commenced using drugs and that by the time of his arrest he had developed a heroin habit said to have been costing between $50 to $500 a day and a cocaine habit worth $500 to $1,000 per week. The material tendered is said to support the fact that he was spending between $200 and $2,000 per week due to a gambling habit.
It is to be noted that in respect of these last-mentioned facts, reliance is placed upon the Probation and Parole Service pre-sentence report dated 25 November 2004 and a report of a psychiatrist, Dr. Dong B. Tran, dated 15 November 2004. The applicant did not give evidence at the sentencing hearing.
Standard non-parole periods
A question arose in these proceedings as to what should be the proper approach of a sentencing court when there is a standard non-parole period applicable to an offence and there has been a plea of guilty.
The Court received supplementary written submissions from the parties on this question which were of considerable assistance in identifying the correct approach to be undertaken.
The provisions of Part 4 Division 1A – standard non-parole periods of the Crimes (Sentencing Procedure) Act 1999 are to be applied in light of the considerations stated by this Court in Regina v. Way (2004) 60 NSWLR 168. The standard non-parole periods in the Table to Division 1A are to be taken as having been intended for a middle-range case where the offender was convicted after trial: Way (supra) at [68].
The sentencing exercise required to be undertaken for Table offences involves a critical focus upon, not only the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified: Way (supra) at [72].
A comparative exercise is required to be undertaken in relation to such offences between the offence at hand and the offence for which the standard non-parole period is prescribed. A sentencing judge will be required to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence: Regina v. Pellew (2004) 150 A. Crim. R. 575 per Simpson, J. at [13(iii)].
In sentencing after a plea, the standard non-parole period specified in s.54B though not obligatory still takes its place as a reference point: Regina v. Davies [2004] NSWCCA 319 per Wood, CJ. at CL. at [6]. See also Regina v. Porteous [2005] NSWCCA 115 per Johnson, J. (with whom Giles, JA. and Hoeben, J. agreed) at [21]. See also Regina v. Sangalang [2005] NSWCCA 171 per Hunt, AJA. (with whom Johnson, J. agreed).
Accordingly, in the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness: Porteous (supra) at [22].
In Regina v. Misiepo [2005] NSWCCA 405, Simpson, J. stated at [43]:-
“It is well established that a standard non-parole period fixed by s.54B of the Sentencing Procedure Act is intended to apply to a conviction after trial, and not to a conviction entered pursuant to a plea of guilty: Regina v. Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period fixed for offences against s.96 was therefore not strictly applicable in this case. That, however, does not render the standard non-parole period entirely irrelevant. A standard non-parole period stands as a benchmark, reference point, sounding board or guidepost: Way, para. [122] …”
In Misiepo (supra), Simpson, J. observed that the plea of guilty of itself constitutes sufficient reason to depart from the standard non-parole period.
In the Crown’s written submissions, it was correctly stated:-
“13.It is submitted that the approach to sentencing should be to first decide whether there are reasons for imposing a shorter or longer non-parole period than the standard one. When there is a plea of guilty, that factor may, alone or in combination with other factors, be a sufficient reason for not imposing the standard non-parole period. An assessment of the case as not in the mid-range of objective seriousness would also be a reason for not imposing the standard non-parole period. There could be other reasons. In any such case, the standard non-parole period remains relevant to fixing the non-parole period in much the same way as the maximum penalty does: see Way at [50] to [53]. In relation to some offences, this will result in longer non-parole periods than might have been imposed prior to the introduction of standard non-parole periods.
14.Having decided that the standard non-parole period was not going to be imposed, the sentencing judge would have regard to the standard non-parole period in the way suggested in Way and described by various metaphors. It is submitted that it does not matter whether regard to it is had during the process of formulating the non-parole period or after reaching a provisional sentence (see para. [124] of Way above) or both so long as proper regard to it is given. However, in Regina v. AT [2005] NSWCCA 410, the Court (Simpson, Adams and Hoeben, JJ.), after referring to [121] and [122] of Way, said at [33] that what was envisioned by Way was an ‘instinctive synthesis’ approach to fixing a sentence which should then be assessed against such ‘reference points or guideposts’ as the standard non-parole period.”
It was submitted on behalf of the applicant:-
“23.However, by starting from a position whereby, upon a plea of guilty, the standard non-parole period is automatically taken not to apply, it remains deceptively easy for a sentencing court to overlook entirely the requirements of s.54B and the reasoning process it involves. This appears to have happened in the present case.”
The parties’ submissions
The submissions on behalf of the applicant were formulated, having regard to the context of the provisions of Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999. They may be dissected into three areas as follows:-
(a)The asserted failure by the sentencing judge to expose his reasoning processes as required by the provisions of ss.54A, 54B(4) and s.21A of the Crimes (Sentencing Procedure) Act 1999.
(b)Error in the approach adopted by the sentencing judge which it is said led him to conclude that the offences were of mid-range gravity.
(d)Specific errors in the approach taken by the sentencing judge to the evaluation of the objective seriousness of the offences.
Each of these matters are to be considered in relation to each other for they are interrelated and additionally, as observed by Simpson, J. in Pellew (supra) at [27], error in approach by a sentencing judge to the evaluation of the objective seriousness of an offence does not carry with it the necessary implication that the conclusion was erroneous. It means that this Court must make its own evaluation.
In developing the applicant’s case in oral submissions, Mr. Barker, QC. emphasised the following:-
(a)An asserted absence of the discipline that is required in the approach to be taken in the assessment of the objective seriousness of the offences including, in particular, an asserted failure to identify individual factors relevant to the assessment of the objective seriousness of the offences.
(b)A failure to express the particular reason or reasons for concluding that the offences were in the middle range of objective seriousness.

The written submissions for the applicant were developed in oral submissions in the following terms (transcript, 17 February 2006, p.2):-
“In our submission, he fell into serious error in not properly assessing the objective seriousness and in fixing matters going to objective seriousness with matters going to punishment. He further fell into error in not taking account of evidence before him, which bore upon the objective seriousness of the offence, and that is the evidence as to the applicant’s drug addiction and gambling problem …”
It was further submitted that it was unclear from the remarks on sentence as to whether or not the sentencing judge ascribed mid-range seriousness because of factors typical to cases involving the supply of heroin involving factors such as planning and organisation. In this respect, reliance was placed upon Way (supra) wherein this Court stated (at [100]):-
“Before parting from this aspect of the Division, we observe that we do not consider that a mid-range offence should be regarded as one that is necessarily ‘typical’ of those that are charged under the relevant provision …”
It was submitted on behalf of the applicant that all heroin supply cases involve a degree of planning, possession of the drug and sometimes involve an agreement to supply (in this case an offer to supply). The presence of these characteristics, so the submission went, are to be assessed with that in mind.
It was also submitted that individual errors were to be considered in determining whether the particular standard non-parole period arising under the Table to Division 1A of Part 4 of the Act could have any application. That was to be determined, initially, by considering the objective seriousness of each of the offences.
Consistently with what this Court stated in Way (supra) at [85], the assessment called for an inquiry into the actus reus, the consequences of the conduct and the factors which might have impinged upon the mens rea of the applicant. The latter required consideration of the applicant’s motivation. Reference was made to the examples given in Way at [86], namely, circumstances involving duress, provocation and robbery to feed a drug habit.
The submission for the applicant, accordingly, focused upon whether specific matters existed which were capable of supporting the sentencing judge’s conclusion that the offences were in the middle range of objective seriousness. The specific matters in this respect are considered in the following paragraphs.
(a)Failure to make due allowance for the applicant’s gambling and drug addiction
At the sentencing hearing on 16 December 2004, Mr. Byrne, SC. on behalf of the applicant tendered the report of Dr. Tran which was admitted without objection as Exhibit 1. The transcript (p.10) records reference to the contention that the applicant’s use of illegal drugs brought him into contact with people who supplied drugs “… and his criminal activities in that regard can be said, in my submission, to be linked to, at least initially, to his use of prohibited drugs. So there is a clear link, it’s not a person who appears to be living entirely off the sale of prohibited drugs in order to support a lavish lifestyle. He was a drug user at the time when these offences were committed and that’s something that, whilst not offering any excuse or justification of any kind, it offers some explanation, some background, and as those cases say, it’s something that can be legitimately taken into account when assessing sentence …”.
Reference was made to the following passage in the remarks on sentence concerning the circumstances in which the applicant came to use and rely upon prohibited drugs.
“These are extremely serious matters. With one qualification in regard to Mr. Phu Vu, I would have thought that unequivocally they are in the middle range of objective seriousness for these offences. Mr. Hung Vu has no criminal record, although that is not entirely unexpected. He is aged 28. He lives with his wife and two children and his mother at Belmore. There is uncorroborated and somewhat conflicting information that he has a drug and gambling problem but there is no evidence in support of those propositions …
The claimed basis for his offending is a substantial drug and gambling addiction, although to what extent this is in fact the case is difficult to determine.”
It was contended on behalf of the applicant that the sentencing judge effectively discarded the proffered motivation for the offending, namely, the gambling and drug addictions. It was submitted that they were factors bearing on the objective seriousness of the offences. Senior counsel for the applicant also disputed the statement by the sentencing judge that there was no evidence to support the “propositions” as to drug and gambling problems. In this respect, reliance was placed upon statements in the pre-sentence report dated 25 November 2004 and in Dr. Tran’s report as contradicting the statement that there was no evidence to support them.
The pre-sentence report (p.2) under the heading “Factors Relating to Offending” and the sub-heading “Alcohol and other Drugs” refers to a statement attributed to the applicant that he commenced the use of drugs in 2001 following the death of his father and that he claimed that since that time he had been dependent on heroin and cocaine and would also regularly use amphetamines and ecstasy.
There is also made under the heading (p.3) “Attitude to the offence” reference to a statement attributed to the applicant that, at the time, “his judgment was clouded as a result of his chronic drug addiction”.
These statements need to be considered in light of the limited evidence in the form of Dr. Tran’s report. The report refers to a statement by the applicant that he needed money “to sustain both heroin and gambling habits” and on p. 3 it is stated:-
“Mr. Vu was somewhat vague with regard to illicit substance use. He said that he began to use heroin, his drug of preference, in 2001. He has reportedly only smoked it and denied ever having injected any substance. He said he would normally smoke about one gram of heroin a day.
He said he used cocaine, also by smoking, for only six months in 2000. He said he has used amphetamine and ecstasy on an infrequent basis in the past.”
The report also refers to the applicant’s statement that his illicit substance use had escalated as a result of his family problems.
Dr. Tran, under the Opinion and Recommendations, states that the applicant’s offending behaviour could be understood in the context of him having:-
“… developed problems with both heroin and gambling”. He would have been drawn into drug activities as a way of meeting his addiction needs and in order to finance his gambling habit”. The sudden loss of his father and the resulting problems with his family would have exacerbated both his drug use and his problem gambling.”
In Regina v. Henry (1999) 46 NSWLR 346, Spigelman, CJ., emphasised that it has long been the position taken in this State that addiction is not, of itself, a mitigating circumstance (at [178]), citing a number of authorities on the point. In reference to the decision of the Full Court of the Federal Court in Douglas v. The Queen (1995) 56 FCR 465, Spigelman, CJ. observed that that was an extreme case which was of little assistance in establishing a general principle that addiction lessens moral culpability:-
“On the contrary, it affirms that self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice …” (at [185])
In Regina v. Spiero (1979) 22 SASR 543 at 549, King, CJ. observed that whilst there is an understandable sympathy for a person who has become entangled in drug addiction, the courts cannot treat addiction as an excuse, or even a mitigating factor in relation to serious crime, adding:-
“… those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same serious punishment as would be received by others.” (at p.549)
In oral submissions, Mr. Barker, QC. stated that the observations of Spigelman, CJ. in Regina v. Henry (see paragraph [55] above) were made in the context of the discussion of drug addiction as a mitigating factor going to punishment. In the context of the present case, it was contended the addictions of the applicant had importance in the context of the required assessment of the objective seriousness of the offences. The suggested distinction warrants close consideration. If the submission for the applicant on the point is accepted uncritically and without limitation, there is a danger that the strong statement of principle to the effect that addiction is not of itself a mitigating circumstance may be undermined.
In Way, it was noted that circumstances that are personal to an offender become relevant because of their “causal connection” with the commission of the offence for which a sentence is to be imposed. In that context, the Court referred to matters of motivation - such as duress, provocation and robbery to feed a drug addiction. The reference to the role that drug addiction may play in a determination of the objective seriousness of an offence and how that is to be reconciled and applied in every case alongside the principle that addiction is not a mitigating circumstance is one which need not be resolved here. The question for resolution in the present case is whether the evidence before the sentencing judge was sufficiently probative to establish that there was a causal connection between the offences and the drug and gambling addictions.
Mr. Barker’s alternative submission was that, even if his primary submission on the question of addiction was not accepted, the fact of addiction must, in any event, be an important factor going to punishment. It was contended in this respect that the sentencing judge simply disregarded it.
The report of Dr. Tran proceeds upon an acceptance of the applicant’s unverified statements that his involvement in drugs was a means of coping with his father’s illness and death. There is no indication that this assertion by the applicant, accepting it at face value, was the product of or based upon a diagnosed psychological condition beyond a normal grief reaction. Additionally, Dr. Tran’s report does not establish that the applicant’s judgment had been adversely affected to the extent that it prevented him from knowing and appreciating right from wrong or from seeking help for his condition.
The Crown acknowledged that the applicant’s addiction might be relevant in considering the objective criminality of the offences or as subjective features of the offender or as an explanation for the offences, citing the observations of Spigelman, CJ. in Henry (supra) at [174] to [185] and [197] to [202] and Wood, CJ. at CL. at [273] to [274]. However, the Crown also submitted, correctly in my opinion, that the sentencing judge’s reference to the lack of evidence on the drug and gambling addictions is a reference to the absence of sworn evidence from the applicant and/or corroborative evidence from anyone else, such as a family member, who might be in a position to have knowledge of his lifestyle before and after his father’s death.
Mr. Byrne, SC before the sentencing judge relied upon observations of Studdert, J. in Regina v. Selim [1998] NSWSC 165, who stated:-
“… to what extent a penalty otherwise appropriate should be adjusted if the offender commits the offence to feed an addiction calls for a closer assessment of all the relevant circumstances …”
In Henry, Wood, CJ. at CL. at [273] identified three relevant principles, namely:-
(a)The need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation.
(b)However, the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence, insofar as it may throw light on such matters as:-
(i)The impulsivity of the offence and the extent of any planning for it.
(ii)The existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism.
(iii)The state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grip of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act.

(c) The need to obtain funds to support a drug habit may be relevant as a subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it might:-

(i)Impact upon the prospects of recidivism/rehabilitation.

Suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible.
(iii)Justify special consideration in the case of offenders judged to be at the “cross roads”.

Wood, CJ. at CL. went on to state that, to go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle.
It may be said immediately that the evidence in this case does not readily establish anything in the nature of an uncontrollable impulsivity or disordered thought processes or unwilled acts. In stating this, I have not overlooked the applicant’s statement in the pre-sentence report to the effect that his judgment was clouded as a result of chronic addiction, though acknowledging that he knew his actions were wrong.
In relation to matters of factual relevance, Dr. Tran’s report indicates that he essentially based his assessment upon information elicited from the applicant in his interview with him on 6 November 2004. The history obtained by him includes reference to the applicant relating his offending behaviour to the fact that he needed money to sustain both heroin and gambling habits and that he attributed the former to his family circumstances (as to the history given of the circumstances precipitating his addiction etc., see below). It is also to be observed that Dr. Tran recorded that the applicant was “… somewhat vague with regard to illicit substance use” (p.3). Dr. Tran’s opinion is expressed in guarded terms, including, reference to the fact that his offending behaviour “could be understood in the context of him having developed problems with both heroin and gambling”. His further reference to the fact that the applicant would have been drawn into drug activities as a way of meeting his addiction needs and in order to finance his gambling habit is not so much an expression of opinion on a causal issue of a medical nature as simply a statement largely based on the applicant’s own account.
As the applicant did not give evidence and called no evidence from anyone to corroborate him, the only basis for the opinion of Dr. Tran is therefore to be found in the out of court statements made by the applicant to Dr. Tran. In those circumstances, there is a need for caution in attaching weight to the reported statements and the opinion based on them: see generally Regina v. Qutami (2001) 127 A. Crim. R. 369 at [59] per Smart, AJ.
This is particularly so given that the history recorded by him, as the Crown has observed, is in conflict with the history recorded in the Probation and Parole Service pre-sentence report.
Dr. Tran’s report (pp.2 to 3) refers to “family problems” and notes that the applicant had taken his father to Canada and the day after arriving there his father suffered a stroke for which he needed to be hospitalised and from which he never recovered. The report records:-
“Mr. Vu said that his family has continued to blame him for sending his father to Canada and for what happened to his father afterwards. He said he got so upset with his family that he turned to drugs … and that it was partly due to peer influence …”
In the pre-sentence report, however, the history is suggestive of an extreme grief reaction. The report (p.2) records the history given by the applicant that he commenced the use of drugs in 2001 after the prolonged illness and subsequent death of his father and that (p.3):-
“The offender became involved in drugs approximately three years ago as a means of coping with the illness and subsequent death of his father with whom he reports he had a very close relationship …”
In circumstances in which an applicant does not give evidence before the sentencing judge and relies upon reports which contain conflicting histories, the applicant assumes a risk that the sentencing judge, given the conflict, may not be able to accept the evidence on a particular matter in this case, as to the circumstances that have given rise to the addiction claimed. Even if there is a possibility of reconciling the histories here, as for example, construing the reference to the upset with family members as some sort of grief reaction, there is a limit to the weight that can safely be placed upon the report.
There are other inconsistencies in the two reports. In the pre-sentence report the applicant stated that he had been dependant on heroin and cocaine and would also regularly use amphetamines and ecstasy. In Dr. Tran’s report, the history of drug usage was that he used heroin but, inconsistently, stated that he used cocaine for only six months in 2000 and that he used amphetamine and ecstasy on an infrequent basis in the past. The inconsistency as to the use of particular drugs and the frequency of such use is not without significance, although in the context of relating a general problem with drug addiction, should not necessarily be given undue weight. The point, however, remains that, given inconsistencies in the histories recorded in the two reports, the sentencing judge’s task was unnecessarily complicated.
Insofar as the applicant sought to rely upon drug addiction as relevant in the assessment of the objective seriousness of the offence and/or as relevant subjective circumstance, it is, in my opinion, essential that the evidence be of a nature and quality as attracts the operation of the principles identified by Wood, CJ. at CL. in Henry (supra).
The Crown submitted that in the circumstances of the present matter, the most that could be made of the applicant’s alleged drug addiction and gambling habit would have been to avoid what might otherwise have been an aggravating motive such as pure greed or a desire to fund other criminal activity: Henry (supra) at [225]. The Crown, however, also emphasised that the applicant became involved in the activities in question at a mature age and there was no suggestion that he did so other than as a matter of free choice.
I am of the opinion that the Crown is correct in the way in which the evidence, at its highest could be used on the question of the applicant’s drug and gambling addictions. However, notwithstanding, I do not consider that appellable error has been established by the sentencing judge not finding that the drug and gambling problems were factors which operated to reduce the objective seriousness of the offences.
(b)Treating count 1 as though (contrary to the fact) heroin was actually supplied and the community thereby harmed
It was contended on behalf of the applicant, that the sentencing judge erred in rejecting the submission of senior counsel on these points. The following passage in the remarks on sentence was said to involve error:-
“It was suggested by Mr. Byrne, SC. … that the most serious offence can be somewhat discounted in that no drug was actually supplied, so that there was no actual harm to the community caused by that offence. In that regard, however, what cannot be overlooked is that that particular transaction was part of an ongoing supply of heroin … that involved an actual supply before and after the date in question of 729 grams and 792 grams respectively. I have no doubt that had Lokerse had the money to purchase the approximate 1.575 kilograms of heroin, Mr. Hung Vu would have been able to supply it, and had the obvious capacity to do so. Indeed, the inference available from the tape intercept is that the heroin, earmarked for Lokerse, went to another or others.”

The contention on behalf of the applicant was that this statement indicates that the sentencing judge considered that an offer to supply to be less objectively serious than a case where a large commercial quantity of heroin has actually been supplied with the potential for it to reach the streets. It was further contended that the sentencing judge effectively dismissed the fact that the offence did not involve an actual supply of heroin and that the real consequences of the offending were effectively “nil” from a community harm standpoint.
In relation to the first point, the submission emphasised that, whilst an offer of supply was central to the offence on Count 1, the fact that the transaction never materialised could not be ignored in a proper assessment of the objective criminality involved in the offence. In particular it was submitted on behalf of the applicant that the quantity of heroin, whilst an aspect of the offence, in terms of actual consequences was “fictional” in the circumstances of the case:-
“… if matters of quantity are not to be given too much emphasis, the consequences of an offer of supply, however large, can seldom be as serious as an actual supply of heroin, even of a relatively small amount.” (paragraph 26 of the appellant’s written submissions)
The central premise implicit in the applicant’s submission, that an actual supply of prohibited drugs must be more serious in its criminality than an offer or an agreement to supply, not followed by actual supply (and therefore not leading to consequential harmful effects upon the community arising from supply), requires consideration in light of this Court’s approach in other cases involving offers or agreements to supply.
The Crown submitted (at p.24 of its written submissions):-
“… There is no reason in principle why a genuine offer to supply a prohibited drug should be regarded as any less serious an offence than a proven act of supply …”.
The Crown cited Regina v. Smith [2002] NSWCCA 378 at [16] to [17] and Regina v. Ambatsidis [2002] NSWCCA 125, whilst acknowledging that those cases dealt with agreements to supply.
In Regina v. Higgins (CCA, unreported 15 December 1993) at 6, to which the Crown also drew the court’s attention, one finds some support for the proposition that, in some circumstances, there may be a basis for distinguishing the criminality involved in an actual supply as against that associated with agreements or offers to supply. In that case, Grove, J. stated (at p.6):--
“By definition in the Drug Misuse and Trafficking Act, supply includes offering or agreeing to supply and whilst – as a generality – I would contemplate that actual supply would usually be more serious than an offer or agreement which was not completed, I see no basis for concluding that supply in the form of offer or agreement is a matter to be equated, irrespective of the amount involved, with small dealing. I do not regard the applicant as having shown that he should be treated along the lines of the pattern of sentencing appropriate for small heroin dealers …” (emphasis added)
The emphasised words in this extract indicate that, firstly, Grove, J. was not here suggesting that there is a uniform approach on the issue and, secondly, the relative criminality between an offer to supply and actual supply clearly is a matter to be determined according to the facts of each case. To take but one example, an offer not fulfilled due to a change of mind by the offeror is obviously not a case of equal seriousness to an offer that is unfulfilled by reason of extraneous circumstances but for which the offer would have been performed by the offender.
In Ambatsidis (supra), Simpson, J., with whom Barr, J. agreed stated (at paragraph [14]):-
“Finally, it was put that inadequate weight was given to the fact that (in relation to the first charge) no heroin was ever actually supplied. The legislature has expressly included agreement to supply in the concept of supply, and it does not seem to me that this fact alone mitigates the offence. It was appropriate to look at all the circumstances of the offence, including the applicant’s strenuous efforts to obtain heroin and to maintain his connection with Detective Biaggi.”
Similarly, in Smith (supra), Wood, CJ. at CL., with whom Howie, J. agreed, stated:-
“Ground 2 similarly lacks substance, there being no reason in principle why a genuine agreement to supply drugs should be regarded as any less serious than a proven act of supply. The decision in Regina v. Kalpaxis [2001] NSWCCA 119 provides no support for the applicant, it having been a case where the offender never had any of the drugs in question, let alone any intention of supplying them. He was, at the time, suffering from a mental illness which led to a substantial departure from reality.
In the present case, the tenor of the intercepts point unerringly to the conclusion that this applicant was transacting genuine drug deals, at the times and at the places mentioned in the conversations.”
”Supply” is defined in s.3 of the Drugs Misuse and Trafficking Act 1985 in these terms:-
“’Supply’ includes sell and distribute and also includes agreeing to supply or offering to supply or keeping or having in possession for supply or sending, forwarding, delivering or receiving for supply or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”
This comprehensive definition extends the reach of the Act to multifarious aspects of the supply side of trafficking in prohibited drugs. The provisions of the Drug Misuse & Trafficking Act 1985 do not in themselves established a distinction in terms of objective seriousness between an actual supply, an agreement to supply or offering to supply or any of the other activities comprehended by the definition. In this respect, for example, in Regina v. Nassif [2005] NSWCCA 38, Bell, J., with whom Grove, and Buddin, JJ. agreed, stated, in relation to the definition of “supply”:-
“30.Having regard to the breadth of the statutory definition, I am not persuaded that an attempt to receive drugs for supply is necessarily to be categorised as less objectively serious than an offence of supply constituted, for example, by an agreement to supply the same quantity of drugs. The assessment of the objective seriousness of a given offence, including an attempt, depends upon the particular circumstances of the case.”
There will usually be a varying degree of objective seriousness between one or other of the activities that fall within the statutory definition of supply, but this, as reflected in the judgment of Bell, J., depends, not upon any general concept of a hierarchy of seriousness attaching to one or other of the activities that may constitute a “supply” as defined in s.3, but upon the facts and circumstances of each case. Plainly, agreements to supply or offers to supply prohibited drugs each constitute transactional activities that play an important and essential role in the chain of drug trafficking.
In terms of offering to supply factors which will often be relevant in determining the objective seriousness of an offence under s.25(2) of the Act will include:-
•The terms of the offer, in particular, as to the quantity of a drug, its price, etc.
•Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.
•Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
•Whether the offeror at all material times had the intention to fulfil the offer.
•Whether the offeror had the capacity to fulfil the offer to supply.
•Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.
In context, the remarks on sentence which have been extracted in paragraph [76], appropriately emphasised that the offer to supply in reality was an aspect of an overall or ongoing supply of heroin before and after the date in question. That was a matter that was plainly relevant to demonstrating that the applicant was shown to have a serious intent, if possible, of completing the transaction. I do not agree, however, that the evidence sufficiently established that the heroin earmarked for Lokerse was in fact supplied to another.
These aspects of the remarks on sentence, however, do not entirely dispose of the question as to whether in this particular case the offer to supply a prohibited drug was as objectively serious or equally serious to an actual supply of heroin. In Way (supra), the Court at [85], observed that the inquiry into an assessment of the “seriousness” of the offence is one which takes into account, inter alia, “the consequences of the conduct”. The remarks on sentence (at pp.5-6) appropriately referred to the potential harm to the community which results from such offences and that, in this case, the offending was part of a planned and organised criminal activity involving a series of criminal acts. However, for reasons that are unclear from the intercepted conversation set out above, the applicant was not in a position to fulfil the offer.
That said, there was no evidence or explanation from or given on behalf of the applicant which sufficiently explained the circumstances that either negated or prevented him from pursuing the offer to supply. The content of the intercepted conversation does not, in my opinion, clearly establish that the applicant of his own volition decided to withdraw the offer or decided against pursuing it. It is, at least, equally consistent that extraneous circumstances intervened to prevent him giving effect to an intention to supply heroin.
I consider that the sentencing judge was entitled to have regard to the fact that the offer to supply by the applicant was made in the context and as an aspect of an ongoing supply of heroin by him to Lokerse and that that added a significant dimension to the objective seriousness of the offence. What I have previously referred to as an impermissible inference by the sentencing judge that the heroin that had been earmarked for Lokerse, in fact, went to another or others, does not, in my view, render the assessment made as to the objective seriousness of the offer to supply, erroneous. I would, accordingly, dismiss this ground.
(c)Undue emphasis on quantity of heroin contemplated by the offer
In relation to Count 1, it was submitted that it appears that the sentencing judge had been influenced in his reasoning by the quantity of the drugs the subject of the offer alleged in the first count. In this respect, reliance was placed on Markarian v. The Queen (2005) 215 ALR 213 and Wong v. The Queen (2001) 207 CLR 584 for the proposition that too much emphasis on matters of quantity without regard to the facts of the case constitutes error.
The submission was that the quantity was, in the circumstances of this case, as a matter of actual consequence, essentially “fictional”. I do not consider that a fair reading of the remarks on sentence discloses an undue emphasis given to the amount of the heroin involved. I do not consider that the sentencing judge selected the quantity of heroin the subject of the offer as the chief factor taken into account in fixing the sentence: Wong (supra) at [70].
(d)Error asserted in relation to the objective seriousness of each offence by taking into account other offences
The submission on behalf of the applicant was that the sentencing judge erred in taking into account other offences, so as to place the matter in the setting of an “ongoing supply of heroin”.
It was submitted on behalf of the applicant, that the fact that an offence occurred as part of a planned or organised criminal activity, or in the context of multiple offending, was a consideration which was relevant to the punishment of the offender and was not a matter properly to be brought into account in assessing the objective seriousness of the particular offence. It is the assessment of the particular seriousness of the offence in question that is said by the applicant to be “a critical point in sentencing under Division 1A and … the sentencing exercise in general, informs the weighing of relevant and known aggravating and mitigating factors …”.
The sentencing judge at p.5 of the remarks on sentence, referred to the fact that the particular transaction was part of an ongoing supply of heroin and stated at pp.6-7:-
“At this scale of offending, where it is apparent that the admitted behaviour was part of an ongoing criminal activity, mitigating factors need to be substantial in order to significantly reduce the otherwise appropriate penalty. Standard non-parole periods of 15 years and 10 years have been set for these offences …”
In Way (supra) at [99], this Court stated:-
“The position has now changed in relation to sentencing in respect of offences for which standard non-parole periods have been set, insofar as there needs to be an examination of the level of objective seriousness in the offence, in which considerations which do not have a nexus with its commission are to be placed to one side.”
The issue, in this case, is whether in the assessment of the objective seriousness of the offence in Count 1, the sentencing judge was entitled to have regard to what was described as “… an ongoing supply of heroin (by the applicant) … that involved an actual supply before and after the date in question of 729 grams and 792 grams of heroin respectively” (p.5).
In Way, the Court observed in the well-known passage at [85] that the multiplicity of purposes of sentencing set out in s.3A of the Act do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as “objective facts and matters” and which may affect the judgment involved in assessing “seriousness”.
I am of the opinion that the sentencing judge in determining the objective seriousness of the offence in Count 1 was entitled to have regard to evidence concerning the Form 1 offence (11 June 2003) and the Count 2 offence (23 July 2003) and that the Count 1 offence could be said to have occurred as part of “an ongoing supply” for the purposes of, at least, determining whether, in respect of Count 1, the applicant had the intention of carrying out the offer made. Unlawful transactions which were proximate to a particular offence may be relevant as matters that impinge upon the mens rea of the applicant: Way (supra) at [85]. That, in turn, is relevant to an assessment of the question of the seriousness of a planned or organised offence. Accordingly, I do not consider that the applicant has established error in relation to this aspect of the matter.
(e)Failure to take into account mitigating factors: previous good record, relative youth, family circumstances and prospects of rehabilitation
In the written submissions for the applicant, it is stated that the sentencing judge appears to have only given weight to one mitigating factor present before him – the applicant’s plea. The applicant’s lack of a prior criminal record does not appear to have been regarded as significant in the sentencing process, the sentencing judge having made the statement that it was “not entirely unexpected” because of his age. It was submitted that whilst relative youth is frequently a mitigating factor, in this case it appears to have worked against the applicant. Further, it is contended that a sentence involving a first time in custody can also have particular relevance for a young offender, referring to Way (supra) at [104].
Reference was made in the remarks to the fact that the offender had a “normal supportive relationship with his wife and children” and that there were good prospects for his gaining employment on release.
In the remarks on sentence (p.6), following a maximum discount being allowed for the plea of guilty, the sentencing judge proceeded:-
“… of lesser importance in this particular case are the factors of having no previous record, his alleged good character and prospects of rehabilitation, particularly having regard to the matters I have earlier referred to. Regrettably, many serious drug offenders are often persons of apparent good character with no previous convictions. There are also often other family members in the background who will be affected by the inevitable lengthy prison sentence to be imposed. However, this is clearly a case of trafficking in hard drugs to a substantial degree for profit, albeit that the profit may have been expended on supporting a gambling and/or drug habit.”
It is fair to say that the abovementioned subjective features were not accorded any significant weight. The Crown submitted that a man of the applicant’s age, is not in the class of young offender whose youth and immaturity may call for leniency. Even though the applicant is not strictly a young offender in determining sentence, his age, however, is of some relevance. Whilst the sentencing judge had regard to the applicant’s prospects of rehabilitation, it is fair to say that he appears not to have been given any significant weight to that matter. At p.7 of the remarks on sentence, there is simply a reference to the fact that any non-parole period would be long enough to achieve any appropriate rehabilitation and/or reintegration into the community.
The Court is required by s.21A(3) of the Crimes (Sentencing Procedure) Act 1999 to take into account in determining the appropriate sentence for an offence the fact that an offender was of good character (s.21A(3)(f)), whether the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise (s.21A(3)(h)).
In Regina v. Leroy (1984) 13 A. Crim. R. 469 at 474, Street, CJ. stated:-
“This Court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the applicant plainly enough was, are selected because their records, their past and their lifestyle are not such as to attract suspicion. It is this, in particular, which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.”
See also Regina v. Opa [2004] NSWCCA 464 at [40].
It is clear from the passage in the remarks on sentence at p.6 which I have extracted above, that the sentencing judge was mindful of both the approach to be taken by courts as discussed by Street, CJ. in Leroy and the fact that this was a clear case of trafficking in hard drugs involving substantial amounts of money, albeit, that the profit may have been expended on supporting a gambling and/or drug habit.
111 Following close examination of the facts of this matter, I am constrained by the circumstances of the case and the approach to be taken to such matters of mitigation to hold that there is no discernable error raised by this ground to the application.

(f) Failure to have regard to assistance to the police
In the Crown’s submissions, it is observed that no submission was made to the sentencing judge that the applicant’s sentence should be discounted or reduced on the ground of assistance. It submitted that the applicant was not frank with police but was evasive and that any assistance given in the interview with police was minimal. The Crown observations in these respects are correct and should be accepted. I do not consider that the matter of assistance constitutes a basis for a finding of appellable error.
(g) Failure to attach significance to sentencing statistics
Sentencing statistics maintained by the Judicial Commission do provide relevant information, in particular, in determining the range of sentences imposed for particular offences and as such, along with other matters, can offer guidance in particular cases. However, in the present case, it does not appear that the sentencing judge was referred to any sentencing statistics and, as pointed out on behalf of the applicant himself, there is a paucity of statistics on cases since 1 February 2003. The well accepted caution that must be exercised in utilising such statistics operates in the present case.

I do not consider that any error has been demonstrated in relation to this matter.
(h) Additional ground of appeal: special circumstances
This ground of appeal asserted that his Honour erred in holding that he had not been asked to find special circumstances and that he could see no basis upon which special circumstances could be found.
At p.7 of the remarks on sentence, the sentencing judge stated that he had not been asked to find special circumstances and he could see no basis for such a finding. He added that, in particular, any non-parole period would be long enough to achieve any appropriate rehabilitation and/or reintegration into the community.
It was erroneous to state that no request for a special circumstances finding had been made. It is clear from the transcript of 16 December 2004 (p.20) that senior counsel then appearing for the applicant specifically adverted to the fact that the standard non-parole periods did not impact on the ability of the Court to consider special circumstances and to adjust the statutory proportion specified in s.44 of the Crimes (Sentencing Procedure) Act 1999. Senior counsel requested the sentencing judge to have regard to specific matters in the pre-sentence report under the heading “supervision” and, in particular, the benefits of supervision and particular issues which affected the applicant personally, in particular, substance abuse and addiction. It was submitted that the report substantiated that those matters could be addressed effectively by way of supervision.
Senior counsel also relied upon observations contained in Dr. Tran’s report and quoted from it referring, in particular, to the applicant’s motivation for change, having developed insight.
There are two aspects on the question of special circumstances. The first is that, in respect of Counts 1 and 2, the sentences imposed conform to the statutory ratio in each case. That appears to evidence an intention by the sentencing judge to apply the ratio in the context in which he erroneously understood that there had been no request for a finding of special circumstances. However, with accumulation of sentences, the non-parole period and the total sentence exceeded the statutory ratio (78.57%). Had the statutory ratio been also applied to the total sentence, there would have resulted a non-parole period of 10 years and six months and not 11 years, as determined by the sentencing judge. The second aspect concerns the question as to whether or not, there having been an error as identified in relation to whether an application for special circumstances had in fact been made, this Court should, itself, intervene and itself find special circumstances.
In this respect, as observed by Spigelman, CJ. in Regina v. Simpson (2001) 53 NSWLR 704 at [65], in addition to the need to identify and articulate special circumstances in order to overcome the statutory constraint in s.44 of the Crimes (Sentencing Procedure) Act 1999, there is a need to ensure that the time an offender must spend in custody reflects all of the circumstances of the offence and the offender – including the objective gravity of the offence and the need for general deterrence. Such facts operate to confine the proper range for the exercise of the discretion.
The question, therefore, becomes whether or not the circumstances in this matter are such as to justify a lower ratio than the statutory proportion or, in other words, that they are sufficiently “special”. This is a question involving matters of fact and judgment.
This again requires reference to Dr. Tran’s report. Central to Dr. Tran’s assessment was that the applicant appeared to be motivated for change, having developed insight into his condition together with the potential rehabilitative benefits of a shorter fixed term, especially given his cultural isolation within the correctional environment and his vulnerability as a first-time offender of non-English speaking background.
Dr. Tran also referred to the prospect that the longer the applicant remains incarcerated, the family support that he currently has, becomes less sustainable. Such support, he said, is critical to his psychological well being.
In Regina v. Carter [2003] NSWCCA 243, Dunford, J. (with whom Ipp, JA. and Greg James, J. agreed) stated, at [20], that offenders cannot expect to have the non-parole period reduced to facilitate their rehabilitation unless there are significant positive signs which show that, if allowed a longer period on parole, rehabilitation is likely to be successful, and not a mere possibility.
The approach taken by this Court in Carter reflects that, in terms of prospects of rehabilitation, a sentencing court would expect to see evidence of a firm commitment to an intensive rehabilitation course or other appropriate support on release and for there to be evidence upon which a prediction can be made, with an appropriate level of confidence, that the offender would be more likely to avoid re-offending if he or she had a longer non-parole period. In Carter, for example, Dunford, J. stated at [19] that the evidence of those proceedings indicated that “it was nothing more than a pious hope”.
Dr. Tran recorded the applicant’s statement that he had realised the need to seek professional help for his problem gambling and that he has tried to seek counselling for it in custody but that it had been difficult because of the language barrier. The pre-sentence report also notes that the applicant had enlisted the guidance and support of a drug and alcohol worker. He, however, advised that he had not participated in any drug and alcohol rehabilitation programme. There is overall a degree of optimism expressed by Dr. Tran concerning the applicant’s rehabilitation prospects.
I consider, on balance, that there are a sufficient number of relevant factual matters to justify a finding of special circumstances and in that respect I would vary the statutory ratio so that the non-parole period is to take into account accumulation of the offences, equating to approximately 64% of the total term of imprisonment. The effect of such an approach would be to reduce the effective non-parole period from 11 years to nine years. In so concluding I also have regard to the fact that, had the sentencing judge done no more than apply the statutory ratio to the total sentence (as he had applied to the individual offences), that that, in any event, would have reduced the total non-parole period to 10 years and six months.
(i) Manifestly excessive
The Crown has observed that the sentences imposed were significant but that the offences were serious. The offences in question were undoubtedly serious.
The sentencing judge, having determined that the sentences were in the middle of the range of objective seriousness, was criticised for not having identified the precise reasons for that conclusion. His Honour, however, did expressly refer to the serious nature of the offences and specifically had regard to the following factors:-
(a)Whilst it was difficult to determine where the applicant stood in the drug hierarchy, it was apparent from the intercepts that he was readily able to obtain large quantities of heroin and was in a position to negotiate price with respect to purchases.
(b)The applicant was able to hold quality batches of heroin for persons who wanted to obtain drugs of a similar quality to past supplies.
(c)There was enormous potential harm to the community which, in the case of heroin alone, involves direct or indirect costs including health costs and criminal damage and behaviour.
(d)The fact that the offending was part of a planned and organised criminal activity involving a series of criminal acts.
(e)The fact that the case was one of trafficking in hard drugs for a substantial degree of profit, albeit that it may have been expended on supporting the applicant’s gambling and/or drug habit.
(f)The fact that the offending was part of an ongoing criminal activity.
(g)The standard non-parole period of 15 years and 10 years had been set for the offences in question and that in cases such as the present the standard non-parole period was to be regarded as a guide or reference point to an appropriate sentence.
I consider that it was open to the sentencing judge to determine, as he did, that the offences were in the middle range of objective seriousness for such offences.
I do not consider, in all the circumstances, that the sentences imposed can be said to be manifestly excessive.
I consider that:-
(a)Leave to appeal should be granted.
(b)The appeal should be upheld in relation to the total non-parole period.
(c)I am of the opinion that a finding of special circumstances should be made. I am, accordingly, of the view that the sentences imposed by the District Court should be set aside and the applicant should be re-sentenced as follows:-
(i)As to Count 2, the applicant is sentenced to a fixed term of imprisonment of six years and nine months to commence from 25 July 2003 and to expire on 24 April 2010. The fixed term is intended to be the equivalent of the non-parole period determined by the sentencing judge.
(ii)As to Count 1, (including the Form 1 offence) the applicant is sentenced to a non-parole period of seven years to commence on 25 July 2005 and to expire on 24 July 2012 and a balance of term of five years commencing on 25 July 2012 and expiring on 24 July 2017. There should be a partial cumulation of the sentence to reflect the total criminality.
(d)The earliest date on which the applicant will be eligible for release on parole is 24 July 2012.

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LAST UPDATED: 22/06/2006

[2006] NSWCCA 188

22 June 2006