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Court of Criminal Appeal 17 June 2002

Regina v Luong

[2002] NSWCCA 238

Drugs
SENTENCING NO QUESTION OF PRINCIPLE.

Citation: Regina v Luong [2002] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 17 June 2002
Judge(s): Smart AJ; Greg James J

Background

The applicant was a 20-year-old man convicted in the District Court of supplying a prohibited drug (cocaine) on three or more separate occasions for financial reward, over a period of approximately one month in early 2001. He had been recruited at a railway station to act as a street-level sales agent, and police estimated his cocaine sales over two months totalled around $64,000. A secondary offence of goods in custody ($195, largely the proceeds of drug sales) was also taken into account.

At the time of his arrest, the applicant gave a frank recorded interview to police in which he voluntarily disclosed the full extent of his drug dealing, including details the police would not otherwise have known. He pleaded guilty at an early stage. While on remand, he refused a fellow inmate's demand to assist in distributing heroin in gaol, was seriously assaulted as a result, and was placed on protection for the remainder of his sentence.

Judge Sides of the District Court sentenced the applicant to five years and six months imprisonment with a non-parole period of three years. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the original sentence of five years and six months was manifestly excessive, having regard to the applicant's early and extensive admissions, early guilty plea, contrition, age, and the circumstances of his custody on protection.
  • Whether special circumstances existed warranting a variation in the ratio between the head sentence and the non-parole period.
  • Whether the Crown's failure to particularise the individual acts of supply relied upon caused the sentencing hearing to miscarry.

Decision

Smart AJ, with whom Greg James J agreed, found the sentence of five and a half years manifestly excessive. The Court accepted that the objective gravity of the offences was considerable, but held that significant weight had to be given to the applicant's frank admissions, which both proved the Crown case and disclosed information police would have been hard pressed to obtain independently. The applicant's early guilty plea, his contrition (which the sentencing judge had accepted as genuine), his youth, and his prospects of rehabilitation all warranted a substantial reduction.

The Court also found special circumstances justifying a lengthened parole period relative to the head sentence. The relevant factors were the combination of the applicant serving his sentence on protection following a serious assault, his being in full-time custody for the first time, his age, and his need for extended supervision on release to support his rehabilitation and reduce the risk of reoffending.

On the procedural point raised by the applicant's counsel, the Court rejected the argument that the Crown's failure to particularise individual supply acts was a ground for appeal. The acts relied upon were clearly apparent from the applicant's own record of interview, no objection had been taken at the sentencing hearing, and the applicant had himself volunteered the relevant information. The sentencing hearing had not miscarried.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentence quashed.
  • The applicant sentenced to imprisonment for four years, commencing 15 March 2001, with a non-parole period of two years commencing that day and ending 14 March 2003, on which date the applicant became eligible for release on parole. (This sentence took into account the goods in custody offence.)

Key Takeaways

  • A young offender's voluntary disclosure to police of criminality not otherwise known to authorities, combined with an early guilty plea and genuine contrition, can justify a substantial reduction from an otherwise appropriate sentence for serious drug supply offences.
  • Special circumstances warranting an adjusted non-parole period can arise from the combination of first-time full-time custody, service of a sentence on protection following an assault, young age, and a demonstrated need for extended post-release supervision.
  • Where a defendant has volunteered information that forms the basis of the Crown case, the absence of formal particularisation of individual supply acts does not cause a sentencing hearing to miscarry, particularly where no objection was raised at first instance.
  • In reducing the sentence, the Court of Criminal Appeal did not discount the objective seriousness of large-scale street-level cocaine supply; the reduction reflected the accumulation of mitigating factors rather than any minimisation of the gravity of the conduct.
  • A refusal by an inmate to participate in further criminal activity while in custody, even at personal cost (here, a serious assault), is a factor capable of informing the sentencing court's assessment of rehabilitation prospects.

Legislation and Cases Referenced

Legislation: None cited.

Cases: None cited.