Citation: Regina v Vireak Long [2001] NSWCCA 159
Court: New South Wales Court of Criminal Appeal
Date: 30 April 2001
Judge(s): Wood CJ at CL; Sully J
Background
The appellant was a 20-year-old man who was intercepted by police at Sydney Airport while attempting to board a flight to Adelaide carrying approximately 711 grams of heroin concealed in his jacket. He pleaded guilty at the earliest practicable opportunity to supplying not less than a commercial quantity of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW), an offence carrying a maximum of 20 years' imprisonment. Two related matters were taken into account on sentence: possession of suspected proceeds of crime and self-administration of heroin.
The District Court sentenced him to 6 years' imprisonment with a non-parole period of 4 years and 6 months (75% of the head sentence). The sentencing judge found that the appellant knew considerably more about the transaction than he disclosed, and noted as an aggravating feature that at the time of the offence the appellant was subject to a recognisance for a prior heroin supply offence.
The appellant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was excessive, targeting in particular the 25% discount applied for the guilty plea, the treatment of his youth, and the failure to find special circumstances that would justify extending the non-parole period beyond the statutory norm.
Legal Issues
- Whether the sentencing judge gave adequate weight to the appellant's youth as a mitigating factor
- Whether the 25% discount applied for the early guilty plea was sufficient
- Whether special circumstances existed that should have led to a reduction in the proportion of the sentence to be served before parole eligibility
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the substantive appeal, finding no error in the sentence imposed below.
On the question of youth, Sully J accepted that youth is a recognised mitigating factor, particularly where an offence can be attributed to immaturity or impulsiveness. However, his Honour found that the appellant's supply offence was deliberate, in character, and connected to prior criminal conduct in the same milieu. These were not the actions of an immature schoolboy; they were the actions of a young adult with relevant prior experience. Youth therefore warranted recognition but not the weight the appellant urged.
On the guilty plea, the Court accepted that a 25% discount was entirely appropriate and within the proper range for an early plea. No error in that assessment was identified.
Regarding special circumstances (the legal basis on which a sentencing court may extend the non-parole period beyond the usual statutory proportion), Sully J confirmed that material capable of constituting special circumstances was before the sentencing judge. However, the critical question was whether the sentencing judge's decision not to translate those circumstances into a reapportionment of the sentence should be disturbed. The Court held it should not. The sentencing judge was entitled to take the view that the appellant was as likely to be rehabilitated by remaining in custody, drug-free, as by early release into an environment where he had previously come into contact with heroin trafficking.
Orders Made
- Leave to appeal granted
- Substantive appeal dismissed
Key Takeaways
- Youth is not a blanket mitigating factor: the Court of Criminal Appeal confirmed that where an offence is deliberate, in-character, and committed by a young adult with relevant criminal history, youth carries reduced mitigating weight compared to offences attributable to genuine immaturity or impulsiveness.
- A 25% sentencing discount for an early guilty plea was upheld as appropriate in the circumstances of a serious drug supply offence.
- The existence of material capable of constituting "special circumstances" does not compel a sentencing judge to alter the apportionment between head sentence and non-parole period; it creates a discretion, not an obligation.
- In dismissing the appeal, the Court applied the principle from Hampton (1998) that an appellate court should not lightly interfere with a primary sentencing judge's discretionary exercise on special circumstances merely because a different view could have been taken.
- Offending committed while subject to a recognisance for the same type of offence was treated as a significant aggravating circumstance by the sentencing court.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes Act 1900 (NSW), s 558 (recognisance provisions, as referenced in the sentencing remarks)
Cases
- Phelan (1993) 66 A Crim R 446
- Hampton (1998) 101 A Crim R 399
- Bo Too and Maiereriki, NSWCCA, unreported, 16 July 1992, per Hunt CJ at CL
- GDR (1994) 35 NSWLR 376