Citation: Regina v David Chang [2003] NSWCCA 327
Court: NSW Court of Criminal Appeal
Date: 14 October 2003
Judge(s): Sheller JA, Sully J, Howie J
Background
The appellant pleaded guilty in the Local Court to two drug supply offences and was committed to the District Court for sentencing. The first and more serious offence involved the ongoing supply of heroin on three or more occasions between 25 and 28 February 2002, contrary to section 25A of the Drug Misuse and Trafficking Act, which carries a maximum of 20 years imprisonment. The second offence involved a separate supply of heroin on 30 May 2000, contrary to section 25(1) of the same Act, which carries a maximum of 15 years imprisonment.
At sentencing in the District Court, the appellant was found to have sold heroin from a vehicle in a shopping centre car park after being observed by police. He made full admissions during a police interview, disclosing that he had purchased and on-sold approximately 100 deals of heroin across multiple transactions. Two goods-in-custody matters involving cash were also taken into account on a Form 1 schedule.
The District Court imposed sentences totalling six years and three months, with a combined non-parole period of four years and six months, with partial accumulation between the two sentences. The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the sentences were unjust.
Legal Issues
- Whether the sentencing judge gave insufficient weight to the appellant's voluntary disclosure of otherwise undetectable offending.
- Whether the sentencing judge erred in finding that the quantity of heroin in count 2 was 14.9 grams rather than 4.9 grams as indicated by the analyst's certificate.
- Whether the sentences were manifestly excessive such that appellate intervention was warranted under section 6(3) of the Criminal Appeal Act 1919.
Decision
On the third ground (the analyst's certificate issue), the Court accepted that the quantity of heroin for count 2 should have been 4.9 grams, not 14.9 grams. However, the Court found this error did not automatically require a reduction in sentence. Weight is relevant but is not, of itself, determinative of what is just in sentencing a particular case.
On the first ground, the Court acknowledged the significance of the appellant's voluntary admissions and full cooperation with police. The sentencing judge had considered this as a subjective mitigating factor. The Court found no error in the weight attributed to it.
The appeal ultimately turned on whether the sentences fell outside the permissible range of sentencing discretion. The Court held that the objective seriousness of these offences was high, and that the sentences were properly severe. The Court also noted that the sentences were aggravated by the appellant's breach of bail conditions and existing bonds, which the Court described as not a trifling matter in the context of the orderly administration of criminal justice.
Judicial Commission statistics were raised in argument but the Court found them immaterial, noting the statistical profile referred to did not match the profile of this particular offender. Sully J, with Sheller JA and Howie J agreeing, concluded the total sentence fell within a proper sentencing discretion and was not manifestly excessive.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A factual error concerning the weight of a drug does not automatically warrant a reduction in sentence; weight is a relevant consideration but is not determinative of the just outcome in any particular case.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that the test on a manifest excess ground is not whether a differently constituted tribunal might have imposed a more lenient sentence, but whether the sentence imposed falls within a permissible sentencing range.
- Breaches of bail conditions and existing bonds are treated as genuine aggravating factors in sentencing, with the Court noting that such breaches retard rather than advance the orderly administration of criminal justice.
- Voluntary disclosure of otherwise undetectable offending is a recognised subjective mitigating factor, though its weight in any given case remains within the sentencing judge's discretion.
- Statistical sentencing data from the Judicial Commission carries limited weight where the offender's profile does not align with the cases reflected in those statistics.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25(1), 25A
- Justices Act (NSW), s 51A
- Criminal Appeal Act 1919 (NSW), s 6(3)
Cases: No specific cases were cited by name in the portions of the judgment provided.