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District Court 3 October 2014

R v Chang

[2014] NSWDC 297

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES SUPPLY PROHIBITED DRUG HEROIN COMMERCIAL QUANTITY

Citation: R v Chang [2014] NSWDC 297
Court: District Court of New South Wales
Date: 3 October 2014
Judge: Cogswell SC DCJ

Background

The offender, a 29-year-old Taiwanese national living in Sydney on a working visa, was caught in an undercover police operation in December 2013. At a car park in Auburn, he sold 2.5 grams of heroin to an undercover officer for $1,500, described as a sample. He then agreed to supply a "block" of heroin (understood to represent approximately 350 grams) for $95,000.

The conversation between the offender, a police informer, and the undercover officer was recorded on a listening device. The offender was arrested on 11 December 2013, several days after the transaction.

Critically, the offender was on bail at the time for a separate Commonwealth charge of intentionally importing 2.5 kilograms of ephedrine. He had no prior criminal record in Australia and no known convictions in Taiwan.

  • Whether the offender genuinely intended to carry out the supply of the commercial quantity of heroin, or whether the arrangement was a "rip off" with no real intention to supply
  • What sentence was appropriate given the objective seriousness of the offences, the aggravating factor of offending on bail, and the mitigating factors personal to the offender
  • Whether special circumstances existed to justify adjusting the ratio between the head sentence and the non-parole period

Decision

On the "rip off" argument: The offender's counsel submitted that his client had no capacity to supply the block of heroin and that the transaction was intended as a fraud on the buyer rather than a genuine supply. The court rejected this. The recorded conversations contained statements made against the offender's own interests, which the court found inconsistent with a fraudulent intent. The court also considered it implausible that the offender would have planned to defraud a person living in the same suburb. There was no evidence to support the rip-off assertion, and it was not accepted as a reasonable possibility.

On objective seriousness: The court accepted the submission that the offending sat towards the lower end of the range for offences of this type. No drugs actually entered the community: the supply of the commercial quantity arose from an agreement rather than a completed physical transaction. The weight involved was also towards the lower end of the commercial quantity range.

On the sentence: The court identified a starting point of six years for the commercial quantity supply, incorporating the serious aggravating factor of committing the offence while on bail. A 25% discount was applied for the guilty plea entered at the earliest opportunity, reducing that sentence to four and a half years. The court imposed an aggregate sentence covering both offences under s 53A of the Crimes (Sentencing Procedure) Act 1999, given that the crimes arose from the same transaction.

On special circumstances: The court accepted that the offender's situation, being imprisoned for the first time in a foreign country with limited English, few visitors, and no family support in Australia, constituted special circumstances. This justified a modest reduction in the non-parole period below the standard three-quarter ratio, from approximately three years and four months to three years.

Orders Made

  • Aggregate sentence of four and a half years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of three years, commencing 11 December 2013 and expiring 10 December 2016
  • Additional term of one year and six months, commencing 11 December 2016 and expiring 10 June 2018
  • Order for destruction of the 2.44 grams of heroin actually supplied, under s 39P of the Drug Misuse and Trafficking Act 1985

Key Takeaways

  • An agreement to supply a prohibited drug can constitute the offence of supply under the Drug Misuse and Trafficking Act 1985, even where no drugs physically change hands in a completed transaction.
  • A "rip off" defence, that is, a claim that the offender never intended to actually supply and was defrauding the buyer, requires evidential support. In the absence of any such evidence, and where recorded conversations contain admissions against interest, the court may be satisfied beyond reasonable doubt that a genuine intention to supply existed.
  • Committing a serious drug offence while on bail for another serious drug matter is a significant aggravating factor under NSW sentencing law and can meaningfully increase the sentence imposed.
  • Where an offence involves a commercial quantity of heroin arranged through an undercover operation with no drugs entering the community, the objective seriousness may be assessed at the lower end of the range for that category of offending.
  • First-time imprisonment in a foreign country, combined with limited English and minimal family or social support, can constitute special circumstances justifying a longer parole period relative to the head sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- R v DW [2012] NSWCCA 66