Regina v Vireak Long [2001] NSWCCA 159

New South Wales Court of Criminal Appeal

CITATION : Regina v Vireak Long [2001] NSWCCA 159 FILE NUMBER(S) : CCA 60555/2000 HEARING DATE(S) : 18 April 2001 JUDGMENT DATE : 30 April 2001

PARTIES : Regina Vireak Long JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0395 LOWER COURT JUDICIAL Stewart DCJ OFFICER :

COUNSEL : M. C. Marien - Crown G. R. Heathcote - Applicant SOLICITORS : S. E. O'Connor - Crown Van Houten - Applicant

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Phelan (1993) 66 A Crim R 446 at 449 CASES CITED: Hampton (1998) 101 A Crim R 399 at 403 Bo Too and Maiereriki NSWCCA, unreported, 16 July 1992 per Hunt CJ at CL GDR (1994) 35 NSWLR 376 at 377-378 DECISION : Leave to appeal granted; substantive appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60555/2000

WOOD CJ at CL SULLY J

30 April 2001

REGINA v VIREAK LONG

JUDGMENT

1 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Sully J. I agree with his reasons and the orders he proposes.

IN THE COURT OF CRIMINAL APPEAL

60555/2000

WOOD CJ at CL SULLY J

30 April 2001

REGINA v VIREAK LONG

JUDGMENT

2 SULLY J: On 18 August 2000 Mr. Vireak Long stood for sentence in the District Court at Sydney. He had pleaded guilty previously, and at the earliest practicable opportunity, to a charge of having supplied not less than the commercial quantity of a prohibited drug, namely heroin. Such an offence contravenes the Drug Misuse and Trafficking Act 1985 (NSW); and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 20 years. At Mr. Long's request there were taken into account two related charges: first, a charge of having had in his custody an amount of $266.45 in Australian currency, being goods recently suspected of having been unlawfully obtained; and secondly, a charge of having self-administered heroin. In the event, a sentence of imprisonment for 6 years was passed upon Mr. Long. A non-parole period of 4-1/2 years, that is to say 75% of the head sentence, was set. Mr. Long seeks leave to appeal against the asserted severity of the sentence thus passed upon him. 3 The relevant facts can be taken conveniently, and as follows, from the learned sentencing Judge's remarks on sentence: "The agreed facts are, about 2.35 pm on Wednesday 12 April 2000 the prisoner was at the ticket counter of the Qantas domestic terminal at Sydney Airport. He purchased a cash one-way ticket to Adelaide on a Qantas flight which was due to depart ten minutes later. New South Wales police from the drug trafficking unit were conducting observations of the prisoner and when he was walking to the departure gate he was stopped and spoken to. A consent search of the prisoner's overnight bag revealed that it contained a plastic box with disposable syringes, sterile swabs, spoons et cetera, in the vernacular called a "fit kit" which is commonly used by intravenous heroin users. He had no toiletries, underwear or socks with him. When questioned further the prisoner said he had no identification and was a heroin user with a criminal record including a previous offence of supplying a prohibited drug. He was searched and found inside his unlined denim jacket behind the side pocket flaps were two rectangular shaped blocks of off-white coloured material. Each block was wrapped in clear cellophane. One block had a corner of cellophane torn away and a small section of the block was missing. When questioned about these blocks the prisoner admitted they were heroin. The prisoner was arrested and taken to Maroubra police station where in his presence the blocks were weighed and found to be in the first case 352.6 grams and the second 358.8 grams. The prisoner was interviewed by way of an ERISP interview and stated during that interview that he had been sent the blocks of heroin in a package mailed to him at his home in Merrylands. He allegedly received, that is to say according to him, the package the day before. He told police that it also contained $1,000 in cash and an unsigned handwritten note in English which said, "You have to take this to Adelaide". The prisoner said he suspected who had sent this package but refused to supply police with any details. The prisoner said he did not make any inquiries to verify the source and although there was no threat in the note he assumed that he or his family may be harmed if he did not deliver it. The prisoner said he was unable to supply police with details of where he was supposed to stay in Adelaide, who he was supposed to meet or how he was to be contacted." 4 The learned sentencing Judge made findings, reached beyond reasonable doubt, "………… that this prisoner knows a lot more about this escapade than he has ever confessed to. He told police that the money in his possession was the remainder of the $1,000 that had accompanied the drugs. The prisoner said that he had used some of the heroin from one of the blocks and injected it into himself at his home about 11 am that day". 5 In my opinion all of these findings were amply open to his Honour. 6 His Honour made, in addition, the following finding: "An aggravating feature is that at the time of committing this offence the prisoner was subject to a recognisance under section 558 of the Crimes Act imposed at the Fairfield Local Court on 9 September 1998 for the same type of offence, namely for supplying a prohibited drug, namely heroin." 7 The facts thus found were undoubtedly supported by the evidence. His Honour correctly regarded those facts as aggravating the objective gravity of the particular offences with which his Honour was dealing. 8 Given the foregoing facts and findings, the supply offence, in particular, in connection with which the applicant stood for sentence was, on any appropriate reckoning, an offence of significant objective gravity. The learned sentencing Judge made the following particular observations with which I respectfully agree: "In this matter the prisoner had a chance and did not take it. The case, as I have said, involves a considerable amount of heroin worth a lot of money. It would have caused a considerable amount of grief and woe if it had reached the streets. Fortunately I think for everyone concerned, and I include here the prisoner himself, the unfortunates to whom this drug was aimed, and the prisoner's friends and relations, that he was intercepted. Who knows, the next dose could have been an overdose." 9 The application of correct sentencing principles required that the learned sentencing Judge recognise, and take prudently and sensibly into account, the following subjective matters that were particular to the applicant's case:

[1] The applicant's youth. The applicant was born on 5 May 1980 so that he was within a month or thereabouts of his 20th birthday at the time of the commission of the relevant offences. He was aged 20 years and about 3 months when he stood for sentence. He is now aged not quite 21 years.

It is not, in my opinion, necessary now to re-canvass yet again the body of curial principle concerning the relevance of an offender's youth. It is now well established law that a youthful offender will normally be treated upon the footing that, because of his young age, special care should be taken to allow properly for, and to encourage, rehabilitation. It is, however, equally well established that youth is not, of itself, a comprehensive all-purpose cloak of forensic convenience for an offender. It is, thus, relevant and important to keep steadily and sensibly in mind the real nature of the offender's particular wrong-doing. If the offence can be seen as an uncharacteristic lapse which is explained by youthful exuberance, or youthful impetuosity, or youthful immaturity, then it will make, obviously, sense to allow for those considerations in a way that would not be at all appropriate in the case of an offender of the same age but whose offence was in character, and not at all capable of being put down, on a sensible and practical view of the relevant facts and circumstances, to mere youthful indiscretion or immaturity.

It would be, of course, wrong in principle simply to disregard the present applicant's comparative youth. It is, however, plainly the case that, for all his comparative youth, the applicant's supply offence was in character. It was, as well, deliberate rather than impulsive or impetuous. The supply offence and its two related offences could not be regarded sensibly, in my opinion, as having been, so to speak, juvenile offences committed by an immature school boy. They were, rather, mature offences committed by a young adult who was not without experience in the relevant criminal milieu.

[2] The applicant, as has previously been noted, pleaded guilty at the first practicable opportunity. He was entitled to every proper consideration in that connection. He was in fact given a discount of 25%. In my opinion this was not by any means a trifling concession given the overwhelming case that was available to be made against the applicant had he pleaded not guilty and gone to trial.

[3] The applicant had, undoubtedly, a sad personal background. He was an immigrant to this country from Cambodia via a refugee camp in Thailand, and then a period of residence in New Zealand where his parents separated due to his father's persistent violence. His initial residence in this country was with his mother in various women's refuges. It is one thing to say that it would be cruel and uncivilised not to feel a proper compassion for so sad a history. It is an entirely different thing to give that proper compassion disproportionate sympathetic weight in connection with an offence which is, in truth, but one incident in a history of persistent disobedience of the law, including in particular that part of the law which proscribes the trafficking of heroin.

[4] The learned sentencing Judge accepted that the drug trafficking syndicate in the illicit activities of which the applicant had become embroiled contained a number of violent members, some of whom had actively threatened the applicant and members of his family with violence should the applicant not continue to play his assigned part in the illegal operations of the syndicate. Such findings were, in my respectful opinion, plainly open to his Honour; and the findings, once made, were plainly relevant features of the applicant's subjective case.

[5] There was clear evidence that the applicant was at the material times himself a confirmed heroin addict. Such a circumstance can explain, but plainly it cannot excuse, continuing participation in the illegal trafficking of heroin.

[6] There was evidence, which the learned sentencing Judge was entitled to accept, and did in fact accept, that professional psychoanalysis of the applicant had shown him to be suffering from a major depressive disorder.

[7] The applicant did not stand for sentence as an offender without prior criminal antecedents.

In June 1996 the applicant was sentenced in the District Court at Penrith to concurrent terms of imprisonment in connection with two offences of aggravated robbery whilst armed. Concurrent sentences were passed of 4 years' imprisonment in each case. In each case a minimum term of 6 months and an additional term of 3-1/2 years were set. The whole of the time to be served in detention was ordered to be served in a detention centre rather than in an adult prison. This Court does not have the benefit of detailed information concerning these particular offences; but it is, in my opinion, a fair inference that the way in which the concurrent sentences were structured is explained by the District Court's having accepted that the applicant would respond favourably to the opportunity of a greatly increased additional term and a correspondingly decreased minimum term of full-time custody.

The minimum term of 6 months which was set in 1996 expired on 11 August 1996. On 18 June 1997 the applicant was charged in the Lidcombe Children's Court with two counts of possession of a prohibited drug. In respect of each of those offences the applicant was sentenced on the following day, 19 June 1997, to a control order without conditions for a period of 4 months. His parole in connection with the 1996 matters was apparently revoked and he was apparently returned to his former custody. By 9 September 1998 the applicant was again at liberty. On that day he was charged in the Fairfield Local Court with having supplied a prohibited drug. He was dealt with on 15 October 1998. He was given a recognisance for a period of 2 years. The recognisance was made conditional, among other conditions, upon his supervision by the Probation and Parole Service.

The offences committed on 12 April 2000 were committed, as has previously herein been noted, in breach of that recognisance. 10 At the hearing of the present application two submissions were put for the applicant: first, that the end result reached by the learned sentencing Judge was manifestly excessive in the sense that on its face it showed that his Honour had failed to bring into a fair balance what were submitted to be particularly strong subjective considerations; and, secondly, that his Honour had failed properly to deal with the matter of special circumstances. 11 As has earlier been explained, the learned sentencing Judge reduced by a factor of 25% the sentence that he would otherwise have imposed had there not been a plea of guilty. In other words, his Honour would have sentenced the applicant to imprisonment for 8 years had there been no requirement that a proper discount be allowed for a prompt plea of guilty. A sentence of this order is, it was submitted, on its face excessive in the circumstances of the present case. 12 I do not agree. The supply offence, in particular, was in my opinion a very serious breach of the criminal law. The amount of heroin involved was not insignificant. The potential for evil consequences of the trafficking of such a quantity of heroin is obvious and significant. The offender's antecedents were bad, demonstrating in my opinion a contumelious disregard for the proper requirements of the relevant law. The learned sentencing Judge took, was plainly entitled to take, and was in my respectful opinion duty bound to take, a severe view of a serious offence. In my opinion it is not correct to characterise an end result of a head sentence of imprisonment for 6 years as manifestly outside the range available in the sound exercise of the relevant sentencing discretion. 13 As to special circumstances, it is submitted that the learned sentencing Judge did not give that matter any, or any sufficient, consideration; and that such is obviously the case because of the extreme brevity of what his Honour said in connection with special circumstances. His Honour said, indeed, nothing more than this: "I do not find special circumstances in the sense that I should alter the usual three-quarters one-quarter ratio." 14 I take the relevant legal principles to be as follows:

[1] The characteristic which constitutes a given matter as a special circumstance in the sense now relevant "…………is its production of the need or the desirability of the offender to be subjected to an extended period of conditional release subject to supervision on parole" . Phelan (1993) 66 A Crim R 446 at 449 approved in Hampton (1998) 101 A Crim R 399 at 403.

[2] "Where the evidence discloses the existence of material which (if accepted) could amount to special circumstances …………., but the sentencing judge does not vary the …………….. (statutory proportion) ……………, he or she would usually be expected to explain why. The absence of such an explanation may lead to the conclusion that no consideration was in fact given to whether that proportion should be varied: ………………….." Bo Too and Maiereriki NSWCCA, unreported, 16 July 1992 per Hunt CJ at CL at 3.

[3] "If, in a given case, the Court of Criminal Appeal considers that there has been an error in the exercise of sentencing discretion concerning the relationship between minimum and additional terms, it may, in the exercise of its own discretion, decide that the appropriate course is to leave the head sentence as it is, reduce the minimum term, and increase the additional term. On the other hand, as was considered in argument, there may be cases in which the Court will consider that no lesser minimum term could reasonably be imposed, and dismiss the appeal." GDR (1994) 35 NSWLR 376 at 377-378, approved in Hampton at 401.

[4] The correct application of the foregoing principles does not require a slavish adherence to some particular form of words. The first inquiry is whether the sentencing Judge in the particular case has adverted at all to the possible existence and effect of special circumstances of the relevant kind. If not, then, absent some good reason to the contrary, it will be inferred that the Judge erroneously overlooked the need to consider that question. If this first inquiry raises no problem, then it is necessary to consider whether the sentencing Judge correctly identified whatever matter or matters was or were shown by the available evidence to be capable of constituting special circumstances in the relevant legal sense. If it is clear that the sentencing Judge did correctly identify the relevant material on the evidence in the particular case, then the question what should be done in the light of the special circumstances shown to exist is a matter for the exercise by the primary sentencing Judge of a discretion proper to that Judge. Provided that it is reasonably clear that the primary sentencing Judge has adverted to the foregoing matters, then this Court ought not lightly to interfere with the exercise of the sentencing Judge's discretion. That another and a different view might properly have been taken by another and a different primary sentencing Judge will not conclude the point in favour of the particular appellant: Hampton at 403. 15 It seems to me that there was before the sentencing Judge in the present case plenty of material capable as a matter of law of constituting special circumstances in the requisite legal sense. The correct present question is, however, whether the sentencing Judge's discretionary judgment that in fact there was no justification in the present case for translating theoretical special circumstances into a practical sentencing re-apportionment as between head sentence and non-parole period, ought to be disturbed by this Court. I have not been persuaded that this Court should interfere. I think that it was entirely open to the learned sentencing Judge to take the view, which it seems to me to be clear that his Honour did in fact take, that the antecedents of the applicant were such that he was as likely to be rehabilitated from his drug habit by being kept in custody and drug free, as by being released prematurely back into the community and, as previous experience in his case suggested, back into the orbit of heroin traffickers 16 For the whole of the foregoing reasons, I would not disturb the sentence imposed in the Court below. In my opinion, leave to appeal should be granted and the substantive appeal should be dismissed.

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