Citation: R v Chan Thanh Ma [1999] NSWCCA 154; (1999) 107 A Crim R 252
Court: New South Wales Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Barr J; McInerney AJ
Background
The appellant was found in possession of approximately 29.8 grams of heroin in his car and a small quantity in his pocket at a Cabramatta car park in March 1997. He pleaded guilty to supplying a prohibited drug under the Drug Misuse and Trafficking Act, having admitted to supplying heroin to friends on occasions and acknowledged the larger quantity was his.
The sentencing judge in the District Court imposed a total sentence of four and a half years, with a minimum term of three and a half years. The appellant sought leave to appeal against the severity of that sentence, arguing it was outside the proper range given the quantity involved, his plea of guilty, and his prospects for rehabilitation.
The appellant had a prior serious heroin supply conviction from 1991, and the current offence was committed less than one month before the expiry of the additional term of that earlier sentence.
Legal Issues
- Whether the sentence imposed by the District Court was beyond the proper range of sentencing discretion, having regard to the quantity of drugs and comparable sentences
- Whether the sentencing judge failed to give adequate credit for the appellant's plea of guilty and expression of contrition
- Whether special circumstances existed to justify a longer additional (parole) term to support rehabilitation from drug addiction
Decision
The Court of Criminal Appeal found the sentence was excessive. Statistical material before the Court indicated that only around 3 per cent of offenders sentenced for equivalent offences received a higher sentence, and the Crown conceded the sentence sat at the higher end of the range. In the Court's view, this placed it beyond the proper exercise of the sentencing discretion.
McInerney AJ identified a further concern in the sentencing judge's failure to make any explicit reference to the appellant's guilty plea in the sentencing remarks. The Court emphasised that a guilty plea carries important weight, both as evidence of contrition and as a saving to the Crown of the cost of a criminal trial. While it could not be said with certainty that the plea was ignored, the absence of any mention of it in the remarks was a matter requiring correction.
On rehabilitation, the Court accepted that the appellant had engaged in drug counselling, attended a Health Promotion Information Workshop, and expressed genuine desire to address his addiction. McInerney AJ found it appropriate to structure the sentence so as to provide adequate time for supervised support after release. The Court identified this as a special circumstance justifying the longer additional term.
The Court acknowledged the appellant's significant prior criminal history and the proximity of the reoffending to the end of his earlier sentence as aggravating matters, and noted the principles in R v Veen regarding the legitimate use of criminal history in sentencing. Nonetheless, these factors did not, in the Court's view, justify the sentence as originally imposed.
Orders Made
- Extension of time to bring the application for leave to appeal granted
- Leave to appeal granted; appeal allowed
- Sentence imposed by the District Court quashed
- In substitution: total sentence of four years imprisonment, comprising a minimum term of two years and six months commencing 15 March 1997 and expiring 14 September 1999, and an additional term of one year and six months
- Appellant eligible for release on parole on 14 September 1999
Key Takeaways
- Sentencing courts are required to address a guilty plea explicitly in their remarks on sentence; silence on this point risks an inference that it was not given appropriate weight, and may constitute error on appeal.
- Statistical evidence about comparable sentences is a relevant consideration in determining whether a sentence falls within or outside the proper range of judicial discretion.
- The Court of Criminal Appeal confirmed that criminal history may legitimately aggravate a sentence where it reveals moral culpability, a dangerous propensity, or the need for specific and general deterrence, consistent with R v Veen.
- Where rehabilitation from drug addiction is a genuine prospect, the Court may identify special circumstances justifying a longer additional (parole) term to allow for adequate post-release counselling and support.
- In reducing the sentence, the Court balanced the seriousness of repeated heroin supply offending, the proximity of reoffending to the end of a prior sentence, and the mitigating factors of a guilty plea and rehabilitation efforts.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25 (supply of prohibited drugs)
Cases:
- R v Veen (1988) 164 CLR 465