The Queen v Dang[1999] QCA 414

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 239 of 1999

Brisbane

[R v Dang]

THE QUEEN

v

HOA DANG

(Applicant)

Davies JA

Ambrose J

Cullinane J

Judgment delivered 1 October 1999

Joint reasons for judgment of Davies JA and Cullinane J; separate reasons of Ambrose J concurring as to the orders made.

SET ASIDE SENTENCES ON EACH OF COUNTS 3, 4, 5, 6, 7, 8, 10 AND 11 BUT OTHERWISE REFUSE THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE.

1. DAVIES JA AND CULLINANE J: The applicant was convicted on his own plea of guilty on 23 June last and on the same day sentenced to an effective term of nine years imprisonment on 12 counts all involving the drug heroin.  On count 1, which was the offence of trafficking in heroin he was sentenced to nine years imprisonment;  on count 2, unlawful possession of that drug with a circumstance of aggravation he was sentenced to four years imprisonment;  on counts 3, 4, 5, 6, 7, 8, 10 and 11 which were offences of unlawful supply he was also sentenced to four years imprisonment;  on count 9 which was one of unlawful possession he was sentenced to three years imprisonment;  and on count 12, an offence of possession of a motor vehicle and a mobile phone for use in connection with the commission of a crime defined in Part 2 of the Drugs Misuse Act, he was sentenced to one years imprisonment.  All of these terms were to be served concurrently.

2. The applicant had spent 222 days in custody in relation to proceedings for these offences and for no other reason.  The appeal was argued on both sides on the assumption that the learned sentencing judge ordered that that period not be taken to be imprisonment already served under the sentence and his failure to declare that period to be imprisonment already served under the sentence was one of the bases of the appeal.  However, as will appear, that assumption does not seem to be correct.

3. The learned sentencing judge made no recommendation in respect of parole.

4. The offences were committed during the operational period of a suspended sentence of 18 months.  The learned sentencing judge ordered that the applicant serve the whole of the suspended term but directed that it too be served concurrently with the sentences which he had imposed.

5. The applicant contends that the effective term imposed of nine years was manifestly excessive.  That submission is made on two bases.  The first is that a sentence of nine years, without any parole recommendation, was excessive, in the circumstances of this case, for the trafficking offence.  And the second is, as we have mentioned, that the learned sentencing judge should have declared the time served in pre-sentence custody to be imprisonment already served under the sentence.

6. The first of these contentions focuses on two matters.  The first is the applicant's drug addiction and the fact that his trafficking, which it was submitted was at a low level, was merely to feed his drug habit.  It was submitted that cases of this kind should be distinguished from those in which a non-addicted drug dealer is trafficking for the purpose of profit, the former being sentenced to a lesser term than the latter.  It was submitted that the learned sentencing judge failed to make this distinction and accordingly sentenced the applicant on the basis of authorities in which the offender had been trafficking for the purpose of profit rather than because of his or her addiction.  Secondly it was submitted that, because of his early plea and his efforts at rehabilitation, albeit unsuccessful, the applicant should have been given a recommendation for early parole.

7. It is correct, as the applicant submits, that a distinction is made, in sentencing drug dealers, between an addict who deals merely to feed his or her own addiction and one who is not an addict but who deals solely for profit;  and that that distinction will tend towards a lower sentence for those in the first category than for those in the second.  This distinction and its basis were referred to and explained recently by this Court in Woods CA No 381 of 1994, judgment delivered 2 December 1994, unreported and Hammond (1996) 92 ACrimR 450 at 455 - 456.  See also the New South Wales Court of Criminal Appeal in R v Henry & Ors [1999] NSWCCA 111, 12 May 1999, unreported.  However two points should be made about that distinction and its consequence.  In the first place, as adverted to in Woods, the offender may not readily fit into one category or the other;  there may be elements of both.  Swan CA No 354 of 1993, judgment delivered 11 November 1993 and Sebez CA No 100 of 1994, judgment delivered 17 May 1994 are examples of cases in which that was so.  In the present case, however, it may be accepted that the appellant was an addict who was selling to support his own addiction.

8. Secondly, and relevantly to the present case, this distinction is no more than one of many factors which must be considered in sentencing an offender.  Other factors may counter balance or outweigh it.  Van Cam Lam CA No 166 of 1999, judgment delivered 30 July 1999;  [1999] QCA 299, is a case in which that was so, the Court of Appeal concluding that, notwithstanding that the appellant was an addict who trafficked to support his addiction, a sentence of nine years imprisonment was appropriate.  It should be noted, in view of the matters to which we shall shortly refer, that one of those counter balancing factors in that case was that the applicant continued to deal in heroin after he had first been charged.  It cannot be said, as the applicant submitted it could, that, invariably, the sentencing range for addict offenders is lower than that for non-addict offenders.

9. The applicant in the present case is 42 years of age having been born on 15 October 1956.  He was born in Vietnam and came to Australia with his wife and children in 1981.  He has a small but significant criminal history since that time.  He was convicted of stealing in 1983 for which offence he was fined.  He was again convicted and fined in 1986, this time for importing heroin.  In 1991 he was convicted of wilful damage, attempted stealing and unlawful possession of a motor vehicle for which he was sentenced to an effective term of two years imprisonment with a recommendation for parole after six months.  He was given an additional two months imprisonment in 1993 for contempt.  In 1995 he was convicted of receiving and sentenced to three years imprisonment wholly suspended for an operational period of four years.  In 1996 he was convicted of possession of a dangerous drug and fined.  The commission of this offence also caused this Court to order that 18 months of the suspended sentence be served.  No attempt was made to prove that the commission of those earlier offences was caused or contributed to by his heroin addiction.

10. However the applicant was a heroin addict before coming to Australia.  The drug found in his possession, the subject of the 1996 offence was heroin.  Moreover the prognosis in respect of his addiction is poor.  Dr McCulloch, a psychologist who interviewed him, thought that, although he had made attempts to overcome his addiction, including participating in a methadone programme, he lacked motivation to seriously control his addiction.  In this respect the case must be contrasted with that of Woods.

11. The applicant's drug dealing consisted of eight supplies to an undercover police officer totalling 7.976 grams of heroin having a total value of $6,000.  The supply occurred over a period of seven months, ending only when an undercover operation which revealed the applicant's criminal activity was terminated.  A tape recorded conversation between the applicant and the police officer revealed that the applicant was busy selling heroin to other customers also.  The heroin supplied was of a high purity but the prosecutor conceded on the sentence hearing that, because heroin of high purity may now be obtained on the street, the degree of purity is no longer a safe indication of where the offender stands in the chain from original supplier to ultimate consumer.  In those circumstances and because there were no other indicia, despite search of his residence, of his dealing at a higher level, he should be treated for the purpose of sentencing as a street dealer.

12. The applicant was arrested on count 2, the offence of possession of a dangerous drug, on 16 April 1998.  He was allowed bail but continued to offend, including by dealing in heroin, after that date.  The fact that he did so whilst still the subject of a suspended sentence and whilst on bail is an important factor.

13. The applicant pleaded guilty and credit should be given for this.  But it is plain that, as the case relied on sales to an undercover police officer, the applicant would have had little prospect of success on a trial.

14. The applicant's solicitor, in his submissions to this Court, referred to the applicant's continued attempts to rehabilitate himself, to which reference has already been made, and submitted that these should have a mitigatory effect on the sentence.  No doubt these are creditable but, as has also been mentioned, because of the applicant's lack of motivation, the prospect of their success appears slim.  Their effect on the sentence which would otherwise be appropriate must therefore be small.

15. It has been said on previous occasions that it is not easy to reconcile all of the sentences imposed for heroin trafficking.  No doubt this is, in part, because of the large variety of circumstances arising in different cases.  The applicant relied primarily on Woods, to which we have already referred, Nguyen CA No 501 of 1995, judgment delivered 22 February 1996 and Clarke CA No 393 of 1996, judgment delivered 29 November 1996.  Woods, which was a sentence of four years imprisonment with a recommendation after 12 months, is plainly distinguishable from this case.  There the applicant had a minor criminal history which had not resulted in prison or even a community based order.  Moreover there was some prospect in his being able to overcome his drug dependency.  For that reason, in particular, the Court thought that his prospect of rehabilitation outweighed the need for deterrence.

16. Nguyen and Clarke are closer to this case but are nevertheless distinguishable.  In Nguyen the sentence was one of six years.  But unlike the present applicant Nguyen had no prior criminal history.  The appeal was an applicant's appeal against the sentence which Pincus JA, in refusing the application, described as "particularly reasonable".  It is not, for that reason, one which this Court has held to be appropriate.

17. Clarke was an Attorney's appeal against the suspension of a five year sentence and the question in issue before the Court appears to have been whether that sentence should have been suspended.  The Court held that it should not have been and removed the suspension.  The respondent in that case had only one previous conviction, for possession of cannabis for which she had been fined a small sum.  Perhaps more importantly she had succeeded, by the time of trial, in ridding herself of her addiction to heroin.  She also sold only to one person.

18. The more recent decision of this Court in Van Cam Lam, is, in our view, closer to this case than any of those already referred to.  Like the applicant here, the applicant there had continued to do business with an undercover police officer after arrest.  But unlike this case the applicant there had no prior convictions.  Otherwise there are considerable similarities to this case.  The resentence of this Court was one of nine years imprisonment.  The applicant there was, like the applicant here, an addict.  However the amounts and purity involved in that case were greater than those here.  Nevertheless that case supports the correctness of the sentence imposed here.

19. We turn then to the second basis of appeal which was based on the assumption that his Honour did not give the applicant credit for the period spent in pre-sentence custody.  That assumption was made because of remarks made by his Honour during the course of submissions.  In fact he does not appear to have adverted to the matter during the course of his sentencing remarks but the sentence endorsed on the indictment provided:

"Between 29 April 1998 and 5 May 1998 and between 20 November 1998 and 23 June 1999 a total of 222 days Dang was held in pre-sentence custody.  Declare under s 161 Penalties and Sentences Act 1992 the 222 days to be imprisonment already served under the sentence."

Had his Honour said nothing about the matter in his sentence, as his sentencing remarks appear to indicate, the period of pre-sentence custody must be taken to be imprisonment already served under the sentence:  Penalties and Sentences Act s 161(1).  The endorsement on the indictment therefore makes clear beyond doubt what appears, in any event, to be the consequence of his Honour's failure to mention the matter in his sentencing remarks.  His Honour did give the applicant credit for the time which he spent in pre-sentence custody and therefore this basis for the appeal fails.

20. The sentence which was imposed, looked at globally, appears to be a rather high one.  But we do not think it was so high as to require the intervention of this Court.  Subject to what we are about to say, therefore, we would accordingly refuse the application.

21. The trafficking the subject of count 1 consisted of the supplies the subject of counts 3, 4, 5, 6, 7, 8, 10 and 11.  It was therefore inappropriate to impose sentences in respect of the convictions on the supply counts:  R v Elhusseini [1988] 2 QdR 442 at 455;  R v Kiripatea [1991] 2 QdR 686 at 701.  We would therefore set aside the sentences on each of counts 3, 4, 5, 6, 7, 8, 10 and 11 but otherwise refuse the application.

22. AMBROSE J:  I agree with the joint reasons for judgment of Davies JA and Cullinane J and with the orders they propose.