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Court of Criminal Appeal 24 June 2008

Van Can HA v REGINA

[2008] NSWCCA 141

Drugs

Citation: Van Can HA v REGINA [2008] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 24 June 2008
Judges: Grove J, Hulme J, Simpson J

Background

The appellant pleaded guilty in the District Court to two charges of supplying heroin on 18 October 2004. The first charge related to 27.1 grams sold to a buyer who was arrested shortly after leaving the appellant's premises. The second charge arose from the appellant's possession of $60,000 intended as the purchase price for a further quantity of heroin, which the sentencing judge inferred was not less than 150 grams.

Taylor DCJ sentenced the appellant to a total effective term of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months. The sentencing judge found that the appellant was engaged in a commercial drug enterprise motivated by greed, occupied a superior role in the drug hierarchy, and used equipment consistent with processing and pressing heroin for distribution.

The appellant sought leave to appeal, contending that the sentences were manifestly excessive and that the sentencing judge had made various errors in assessing his subjective circumstances and in applying sentencing principles.

  • Whether the sentences imposed were manifestly excessive having regard to comparable cases and the appellant's subjective circumstances
  • Whether the sentencing judge erred in the discount applied for the guilty plea
  • Whether the sentencing judge adequately complied with the mandatory requirements under s 21A of the Crimes (Sentencing Procedure) Act 1999 to identify and address aggravating and mitigating factors
  • Whether the sentencing remarks adequately communicated the reasons for sentence to the offender

Decision

Hulme J, with whom Simpson J agreed, found that the sentences were not manifestly excessive. The appellant was found to be a commercial operator dealing in substantial quantities of heroin for profit, using fortified premises and specialised equipment. Comparable cases involving heroin and other drugs of similar or lesser quantity supported the sentences imposed, and the partial accumulation of the two terms was not excessive.

Hulme J identified several errors by the sentencing judge, including inconsistency in the stated guilty plea discount (which shifted between 20% and 15 to 20%) and some difficulty with the treatment of the appellant's subjective circumstances. However, none of those errors led to a lesser sentence being warranted, and s 6 of the Criminal Appeal Act therefore precluded intervention.

Grove J agreed with the proposed orders but expressed a more favourable view of the sentencing remarks than Hulme J. He did not consider the remarks unduly cryptic, nor did he find a failure to comply with s 21A. Grove J did, however, note a separate concern: the sentencing judge had embedded references to 26 authorities and statutory extracts within the remarks, which obscured the reasoning and failed to communicate the sentence in terms the offender was likely to understand, as required by R v King [2003] NSWCCA 352. Grove J characterised this as a failure in that particular duty, but agreed it did not warrant a reduction in the sentence.

All three judges concluded that the overall facts and circumstances of the offending justified the sentences imposed, and that no lesser penalty was appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a commercial heroin supplier who dealt in substantial quantities, operated from fortified premises, and was motivated by financial gain could attract an effective sentence of 7 years and 6 months without that sentence being manifestly excessive.
  • Under s 6 of the Criminal Appeal Act, the Court cannot reduce a sentence on appeal merely because sentencing errors were identified; a lesser sentence must actually be warranted before intervention is available.
  • Grove J affirmed that s 21A of the Crimes (Sentencing Procedure) Act 1999 does not require a sentencing judge to conduct a formulaic checklist analysis of every listed aggravating and mitigating factor; compliance depends on the existence of relevant evidence and clear findings of fact in the particular case.
  • A failure to communicate sentencing reasons in language the offender is likely to understand remains a recognised error following R v King, and embedding extensive case citations within sentencing remarks may obscure rather than satisfy that obligation.
  • Sentences imposed on co-offenders and offenders involved in other drug types, including methylamphetamine, are capable of providing relevant sentencing comparisons, particularly following R v Adams [2008] HCA 15.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v King [2003] NSWCCA 352
- R v Stambolis [2006] NSWCCA 56
- R v Adams [2008] HCA 15
- Derrington v R [2008] NSWCCA 94
- R v Blanco (CCA (NSW), 22 October 1987, unreported)
- R v Burnett (1996) 85 A Crim R 76
- R v Atkins (CCA (NSW), 3 November 1998)
- Schaal (unreported, NSWSC, 8 September 1989)