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District Court 2 May 2008

R v Chan CHAO

[2008] NSWDC 127

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUG ECSTASY SIGNIFICANT CRIMINALITY ON PAROLE AT TIME OF OFFENCE

Citation: R v Chan Chao [2008] NSWDC 127
Court: District Court of New South Wales
Date: 2 May 2008
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty in the Local Court to a charge of supplying a prohibited drug, specifically 61 ecstasy tablets weighing 16.9 grams. Police stopped the vehicle he was driving after he committed a traffic offence, and a search of the car uncovered the tablets, approximately $1,800 in cash, and multiple separate plastic bags consistent with drug dealing.

The offender maintained throughout the investigation and at sentencing that the drugs were for personal use, claiming to take eight to ten tablets per day. He also attributed the cash found in the car to his girlfriend. During cross-examination, the court found both explanations to be false, concluding the money was connected to drug supply and that the offender admitted lying only after being pressed.

The offender was 31 years old, had emigrated from Cambodia as a child, and had prior convictions for dishonesty offences. Critically, he had been released from custody on parole only a few months before committing this offence.

  • What sentence was appropriate for the supply of 61 ecstasy tablets, having regard to the objective gravity of the offence?
  • What weight should be given to mitigating factors, including the early guilty plea, personal background, and claimed remorse?
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period.
  • How the offender's parole status at the time of the offence should affect the sentencing outcome.

Decision

The court was satisfied that the offender was not a casual or limited supplier but a significant drug dealer who planned to profit from multiple separate transactions. The presence of numerous plastic bags, the cash, and the implausibility of the personal use claim all pointed to organised supply for financial gain.

The court found the offender's remorse to be rehearsed rather than genuine, noting that he had attempted to mislead both the Probation and Parole Service and the court during the sentencing proceedings. Because the offender had not discharged his onus of establishing genuine remorse, the court also declined to find that he had good prospects of rehabilitation.

The offender's parole status at the time of the offence was treated as a significant aggravating factor. The court found that a prior finding of special circumstances had effectively enabled the offender to be released earlier, and that he had used that opportunity to commit further serious offending. This led the court to decline a finding of special circumstances in the present sentencing, resulting in a standard ratio between the non-parole period and the head sentence.

A 25 per cent discount was applied to reflect the utilitarian value of the early guilty plea. The court identified the sentence as needing to reflect the objective seriousness of the conduct, provide personal deterrence, and deter others who might engage in similar drug supply activity.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of two years and three months, commencing 3 October 2007 and expiring 2 January 2010, with release to parole on that date.
  • Head sentence set at three years.
  • Order made for the destruction of the seized drugs.
  • Backup charges (possession of a prohibited drug and possession of a prescribed restricted substance) were dismissed.

Key Takeaways

  • The District Court declined to find special circumstances where the offender had previously benefited from a longer parole period under an earlier sentence but used that early release to commit further serious offences.
  • A claim of genuine remorse will not be accepted where the offender has persistently misled the court and the Probation and Parole Service during the sentencing process; the onus rests on the offender to establish remorse to the court's satisfaction.
  • Committing a drug supply offence while on parole, only months after release from custody, is a significant aggravating factor that can directly affect the structure of a sentence, including the non-parole to head sentence ratio.
  • Multiple plastic bags found alongside the drugs and cash were treated as physical evidence of planning and an intention to engage in numerous separate supply transactions for profit, supporting a finding of significant criminality.
  • An early guilty plea attracted a 25 per cent discount for utilitarian value, even where other mitigating factors, including remorse and rehabilitation prospects, were not established.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), in particular s 21A (aggravating and mitigating factors, including financial gain and planning)

Cases cited:
No cases were cited in the judgment.