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23
Court of Criminal Appeal 29 April 1999

Regina v Chan

[1999] NSWCCA 103

Drugs
INADEQUATE SENTENCES FOR DRUG OFFENCES DISCOUNT FOR ASSISTANCE FAMILY HARDSHIP DETERRENCE PARITY.

Citation: Regina v Chan [1999] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 29 April 1999
Judge(s): Sheller JA, Studdert J, Smart AJ

Background

The respondent, Yat Ping Chan, was sentenced in the District Court in September 1998 for a series of heroin supply offences committed in December 1995 and November to December 1996. The 1995 offences involved supplying heroin to an undercover police officer in a Cabramatta hotel car park for $13,000. The 1996 offences were substantially more serious: Chan was found in possession of over 400 grams of heroin after spending several hours in a processing flat with his wife, and was also implicated in receiving over 1,200 grams of heroin through a network of post office boxes under false names.

Critically, the 1996 offences were committed while Chan was on bail for the 1995 charges. The District Court sentenced him to a concurrent fixed term of two years for the 1995 offences and a cumulative minimum term of 18 months (with a two-year additional term) for the 1996 offences.

The Director of Public Prosecutions appealed on the ground that all sentences were manifestly inadequate.

  • Whether the sentences imposed in the District Court were manifestly inadequate given the objective gravity of commercial heroin supply offences
  • Whether the involvement of an undercover police officer warranted a reduction in the respondent's culpability for the 1995 supply offences
  • The appropriate discount for late guilty pleas entered approximately one year after arraignment
  • How the principles of totality and special circumstances should apply when aggregating sentences across two separate sets of offences
  • The weight to be given to personal hardship (including family circumstances) when sentencing for serious drug offences

Decision

The Court of Criminal Appeal, in reasons delivered by Smart AJ (with Sheller JA and Studdert J agreeing), allowed the Crown appeals and quashed all sentences imposed by the District Court.

On the undercover officer issue, the Court rejected the trial judge's reasoning that the mere presence of an undercover operative automatically diminishes a supplier's culpability. Drawing on established authority, the Court affirmed that reduced culpability may arise only where there is a real possibility the offence would not have been committed but for police encouragement or incitement. Chan was running a heroin supply business; there was no basis to find the police pushed him further than he was already willing to go.

The Court accepted that a discount for guilty pleas was appropriate on utilitarian grounds, but held it should be small. The pleas were entered a full year after arraignment, the Crown case was described as overwhelming on each count, and the contrition or remorse those pleas might evidence was correspondingly limited.

On the 1996 offences, the Court emphasised that objective gravity was the dominant consideration. Those offences involved a commercial enterprise of considerable scale, were committed on bail, and included a large commercial quantity of heroin distributed through a covert post office box network using false identities. Personal hardship, including family circumstances, could not displace the imperatives of deterrence. The Court found special circumstances existed due to the aggregation of sentences and the earlier period spent in custody, which justified a departure from the statutory ratio between minimum and additional terms.

Orders Made

  • Crown appeals allowed; all sentences imposed by the District Court quashed
  • For each December 1995 supply offence (taking into account the possession offence): concurrent fixed term of 2 years 6 months imprisonment, commencing 16 November 1996, expiring 15 May 1999
  • For each November to December 1996 supply offence (taking into account two goods in custody charges): 6 years imprisonment comprising a minimum term of 3 years 3 months commencing 16 May 1999 and expiring 15 August 2002, and an additional term of 2 years 9 months commencing 16 August 2002, served concurrently with each other but cumulatively on the 1995 sentences

Key Takeaways

  • The involvement of an undercover police officer in a drug supply transaction does not automatically reduce an offender's culpability; diminished culpability arises only where there is a real possibility the offence would not have occurred but for police encouragement or incitement.
  • Late guilty pleas entered approximately one year after arraignment, in the face of an overwhelming Crown case, attract only a small discount, even where the pleas may carry some evidence of remorse.
  • Where an offender reoffends on bail at a significantly greater level of criminality, the sentencing court must treat that circumstance as a serious aggravating factor, and personal or family hardship cannot override the need for deterrence in cases of commercial drug supply.
  • Sufficient objective gravity in large-scale heroin supply offences will make deterrence the dominant sentencing consideration, displacing significant weight otherwise available for subjective features.
  • Aggregation of sentences across separate indictments, combined with an earlier period of pre-sentence custody, can constitute special circumstances justifying a departure from the standard statutory ratio between minimum and additional terms.

Legislation and Cases Referenced

Cases Cited:
- Rahme (1991) 53 A Crim R 8
- Mandica (1980) 24 SASR 394
- Taouk (1993) 65 A Crim R 387
- R v CT Edwards (1996) 90 A Crim R 510
- R v Day (1998) 100 A Crim R 275
- R v Byrne (CCA, 5 August 1998, unreported)
- R v TR (CCA, 1 November 1996, unreported)
- Dugan (1984) 2 NSWLR 554

Legislation: No specific legislation was cited in the provided text.