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Court of Criminal Appeal 22 June 2005

Regina v Michael HUANG

[2005] NSWCCA 244

Drugs
CRIMINAL LAW SENTENCE APPEAL CRIMINAL LAW SENTENCE APPEAL SUBJECTIVE CIRCUMSTANCES WHERE ACCUSED AVOIDED REHABILITATION

Citation: Regina v Michael HUANG [2005] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 22 June 2005
Judge(s): Spigelman CJ, Hunt AJA, Howie J

Background

The applicant pleaded guilty in the District Court to supplying prohibited drugs on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. The offence involved supplying heroin to undercover police officers on multiple occasions between 28 May and 4 June 2003 from a family home in Bossley Park, which had been fortified with metal bars on windows, multiple deadlocks, security grills, and a CCTV camera. The applicant conducted the operation together with his mother and, on at least one occasion, his sister.

Marien DCJ sentenced the applicant to five years' imprisonment with a non-parole period of three years and six months. His Honour found the operation was highly planned and organised, placed the applicant's culpability above that of a mere "runner," and identified as an aggravating factor that the offence was committed while the applicant was on conditional liberty under good behaviour bonds.

The applicant sought leave to appeal, contending that the sentencing judge erred in his treatment of the applicant's drug addiction as a subjective circumstance, that the sentence was manifestly excessive, and that the non-parole period did not adequately reflect a finding of special circumstances.

  • Whether new evidence on appeal was sufficient to displace the sentencing judge's findings regarding the applicant's subjective circumstances, particularly the weight to be given to his long-standing heroin addiction
  • Whether the sentence of five years with a non-parole period of three years and six months was manifestly excessive
  • Whether the non-parole period failed to give proper effect to the sentencing judge's finding of special circumstances, given the applicant's need for supervision and rehabilitation support

Decision

The Court of Criminal Appeal accepted that the applicant had been addicted to heroin from a young age, but declined to treat that addiction as a mitigating factor carrying material weight. The applicant had refused a 12-month residential rehabilitation programme offered by his father, stating he "wanted his freedom." Given that history of avoidance, the sentencing judge was correct to find the addiction did not meaningfully reduce the applicant's moral culpability for what was a planned and organised enterprise.

On manifest excess, the Court found that the cases cited by the applicant did not establish any recognisable sentencing pattern and that the circumstances of the comparable offences varied considerably. Spigelman CJ concluded that both the non-parole period and the full term were well within the proper exercise of the sentencing discretion, given the seriousness of the offence, the organised nature of the enterprise, and the significant weight to be given to general and personal deterrence.

On special circumstances, the Court rejected the submission that the 18-month parole period was insufficient. Spigelman CJ observed that the degree to which the sentencing judge had varied the statutory ratio was within his discretion and that this ground was "frankly unarguable, as it almost always is."

Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Long-standing drug addiction does not automatically operate as a mitigating factor in sentencing where the offender has repeatedly declined rehabilitation and the offending was deliberate and organised rather than impulsive.
  • A sentence of five years with a non-parole period of three years and six months for ongoing heroin supply under s 25A(1) of the Drug Misuse and Trafficking Act 1985, involving fortified premises and multiple supplies to undercover officers, was upheld as within the proper sentencing range.
  • Conducting drug supply from purpose-built fortified premises places an offender's culpability at a level above that of a "runner," as described in cases such as R v Henry (1999) 46 NSWLR 346.
  • In dismissing the special circumstances ground, the Court of Criminal Appeal reiterated that challenges to a sentencing judge's exercise of discretion in varying the statutory non-parole ratio will rarely succeed.
  • Committing a serious drug offence while on conditional liberty (good behaviour bonds) is properly treated as an aggravating factor in sentencing.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)

Cases
- R v Henry (1999) 46 NSWLR 346