Citation: Chiang v R [2016] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 1 April 2016
Judges: Beazley P, Harrison J and R A Hulme J
Background
The appellant was detected by police during a drug detection dog operation at the entrance to a music festival at Luna Park, Sydney. Officers observed him in a close conversation with another man, followed by a handshake, after which the appellant placed something into his shoulder bag. As he walked away, he was overheard saying into his phone, "Nah, I've got to go home and wrap them first." On approach by police, he produced 24 ecstasy tablets from his pocket. The agreed statement of facts recorded that he possessed the tablets for the purpose of supply.
At sentence in the District Court, the appellant gave evidence seeking to characterise his involvement as a non-commercial arrangement: he said he intended to consume ten tablets himself over several hours and distribute the remaining 14 to five or six friends at no charge, as it was his "turn" to bring drugs to a festival. The sentencing judge rejected this account as vague, uncorroborated, self-serving, and untrue. His Honour imposed a sentence of 18 months imprisonment with a nine-month non-parole period, after a 25 percent discount for an early guilty plea.
The appellant sought leave to appeal on two grounds: that the sentencing judge erred in rejecting his account of the purpose of possession, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge was entitled to reject the appellant's evidence about the purpose for which he possessed the drugs, where that evidence was uncorroborated and found to lack credibility
- Whether the sentence of 18 months imprisonment (with a nine-month non-parole period) was manifestly excessive having regard to the appellant's personal circumstances and the nature of the offending
Decision
On the first ground, the Court of Criminal Appeal upheld the sentencing judge's approach. The appellant bore the onus of proving, on the balance of probabilities, facts outside the agreed statement that were favourable to him. The sentencing judge was not required to accept the appellant's account simply because it was given; credibility assessments of that kind fall squarely within the sentencing judge's function. The Court confirmed that appellate intervention is available only where there is an identifiable error of principle, mistake of fact, or error of law, not merely because the appellate court might have reached a different conclusion on the evidence. No such error was demonstrated here.
On the second ground, however, the Court found the starting sentence of two years (before the plea discount) was excessive in the circumstances. The appellant was a relatively young man with no significant criminal history. He had cooperated with police, pleaded guilty early, demonstrated genuine contrition, and showed good prospects of rehabilitation. Importantly, while the sentencing judge rejected his account of a non-commercial arrangement, his Honour expressly declined to find that the supply had any financial motivation or that there were other aggravating features. Those unchallenged findings weighed in the appellant's favour.
The Court also noted the appellant's unresolved drug issues, his mental health difficulties since arrest, and the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act 1999, including rehabilitation. It concluded that the appropriate sentence was 12 months imprisonment, reduced to 9 months following the early plea discount. A finding of special circumstances was made to produce an immediate release on parole.
Orders Made
- Leave to appeal granted and the appeal allowed
- Sentence imposed in the District Court on 2 October 2015 quashed
- In lieu thereof, the appellant sentenced to imprisonment comprising a non-parole period of 6 months and a balance of term of 3 months, dating from 2 October 2015
- Non-parole period expiring 1 April 2016; total term expiring 1 July 2016
- The Court directed the release of the appellant on parole forthwith
Key Takeaways
- A sentencing judge is not obliged to accept a defendant's evidence about the purpose of drug possession merely because it is given; credibility and reliability assessments in that context lie within the sentencing judge's function, and appellate intervention requires an identifiable error of principle, fact, or law.
- Where a defendant seeks to establish facts outside an agreed statement of facts that are favourable at sentence, the onus rests on the defendant to prove those facts on the balance of probabilities.
- In finding manifest excess, the Court of Criminal Appeal identified that the absence of any finding of commercial motivation, combined with youth, early plea, cooperation, contrition, and rehabilitation prospects, required a significantly lower starting point than two years.
- Under s 3A of the Crimes (Sentencing Procedure) Act 1999, the purposes of punishment include rehabilitation, and unresolved drug issues and mental health difficulties are relevant sentencing considerations even where a defendant's account has been rejected.
- A full-time custodial sentence remained appropriate for non-commercial supply of ecstasy at a music festival, notwithstanding the reduction in the overall term.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1)
Cases:
- AB v R [2014] NSWCCA 339
- Aoun v R [2011] NSWCCA 284
- Clarke v R [2015] NSWCCA 232
- Colville v R [2015] NSWCCA 149
- Dinsdale v The Queen [2005] HCA 54
- Filippou v The Queen [2015] HCA 29
- Markarian v The Queen [2005] HCA 25
- McVittie v R [2015] NSWCCA 92
- Mulato v Regina [2006] NSWCCA 282
- R v Hinton (2002) 134 A Crim R 286
- R v Holden [2014] NSWCCA 230
- R v O'Donoghue (1968) 34 A Crim R 397
- R v Taylor [2000] NSWCCA 442
- R v Visconti [1982] 2 NSWLR 104
- R v Zamagias [2002] NSWCCA 17
- Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278