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105
Court of Criminal Appeal 16 December 1999

REGINA v WONG & LEUNG

[1999] NSWCCA 420

Also reported as (1999) 48 NSWLR 340
Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES HEROIN AND COCAINE CRIMINAL LAW SENTENCING

Citation: Regina v Wong & Leung [1999] NSWCCA 420
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judges: Spigelman CJ, Mason P, Simpson J, Sperling J, Barr J

Background

Two respondents, Wong and Leung, were sentenced in the District Court following convictions for importing large quantities of heroin and cocaine into Australia, contrary to s 233B of the Customs Act 1901 (Cth). Both had been sentenced by Davidson DCJ, and the Crown brought appeals contending that the original sentences were manifestly inadequate.

The Court of Criminal Appeal used these Crown appeals as the vehicle for delivering a broader guideline judgment on sentencing for commercial drug importation offences. The Commonwealth and NSW Attorneys-General both intervened, with the Commonwealth Attorney-General raising a jurisdictional challenge to the Court's power to issue such guidelines.

The Court considered extensive sentencing statistics, case surveys from NSW and other states, and argument from senior counsel before delivering a five-judge decision.

  • Whether the Court of Criminal Appeal had jurisdiction to issue sentencing guideline judgments in respect of federal offences, including whether doing so constituted a "matter" within ss 75 and 76 of the Commonwealth Constitution
  • Whether a guideline for drug importation offences would be inconsistent with s 16A of the Crimes Act 1914 (Cth), which sets out federal sentencing considerations
  • Whether the existing sentencing pattern for commercial drug importation in NSW revealed systematic inconsistency or manifest inadequacy justifying a new or updated guideline
  • Whether it was appropriate to promulgate a quantitative "bottom up" guideline structured by reference to drug quantity, particularly for couriers and lower-level participants in importing organisations
  • Whether the Crown appeals against the individual sentences of Wong and Leung should be upheld

Decision

Jurisdiction: The Court held that issuing sentencing guidelines fell within its express statutory authority under ss 5D and 12 of the Criminal Appeal Act 1912 (NSW). Appellate courts have long been recognised as able to lay down guidelines for the exercise of judicial discretions. Where a guideline judgment is directly applicable to the case before the Court, its formulation satisfies the constitutional requirement of a "matter" within ss 75 and 76 of the Constitution.

Inconsistency with federal law: The Court found no relevant inconsistency between the Criminal Appeal Act and Part 1B of the Crimes Act 1914 (Cth), including s 16A. Guidelines issued by the Court are indicative only and do not constrain a sentencing judge from giving full effect to the Commonwealth statutory scheme. Sentencing judges retain their discretion.

Sentencing pattern: A review of Judicial Commission statistics for the period 1990 to 1998 did not reveal any pattern of inconsistency or manifest inadequacy in NSW sentences for drug importation. Non-custodial sentences were appropriately exceptional, and custodial terms generally reflected the seriousness of the offences. The Court nonetheless considered it appropriate to promulgate a comprehensive quantitative guideline, noting that clear guidance reduces the need for appellate intervention and assists general deterrence by publicising actual sentencing practice.

The guideline: The Court adopted a "bottom up" approach, meaning the guideline identifies sentencing ranges at successive levels of drug quantity, with ranges necessarily overlapping because many other factors remain relevant. The quantity of drugs imported was identified as an exceptionally important factor, though not the sole determinant. The role of the offender within the importing organisation was specifically identified as relevant. The guideline was expressed as applicable to couriers and persons low in the hierarchy of a drug importing organisation. Simpson J expressed reservations about the suitability of the cases before the Court to serve as the factual foundation for that aspect of the guideline, noting that all three offenders before the Court were significantly involved rather than low-level participants, and that systematic error at the lower end had not been demonstrated.

Orders Made

  • Crown appeal in respect of Leung: upheld; original sentence quashed and replaced with imprisonment for 14 years with a non-parole period of 9 years, commencing 8 November 1997.
  • Crown appeal in respect of Wong: upheld; original sentence quashed and replaced with imprisonment for 14 years with a non-parole period of 9 years, commencing 8 November 1997.

Key Takeaways

  • The Court of Criminal Appeal confirmed it has jurisdiction under the Criminal Appeal Act 1912 (NSW) to issue quantitative sentencing guideline judgments, including for federal offences, provided the guideline is sufficiently connected to the case before the Court to constitute a "matter" under the Commonwealth Constitution.
  • Sentencing guidelines issued by the Court are indicative only: they do not override or restrict the operation of s 16A of the Crimes Act 1914 (Cth) or any other aspect of the federal sentencing framework, and sentencing judges retain their full discretion.
  • A "bottom up" quantitative guideline was promulgated for commercial drug importation under s 233B of the Customs Act 1901 (Cth), structured by drug quantity thresholds, with overlapping ranges to accommodate other objective and subjective factors.
  • Drug quantity is an exceptionally important indicator of objective seriousness, but an offender's role within the importing organisation also bears directly on the appropriate sentence.
  • Simpson J, in a separate concurrence, cautioned that guideline judgments are most appropriately issued where the Court has concrete, representative cases before it, and expressed reservations about extending a guideline to lower-level participants in circumstances where the offenders in the current proceedings were all significantly involved.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth), Part 1B, s 16A
- Criminal Appeal Act 1912 (NSW), ss 5D, 12
- Commonwealth Constitution, ss 75, 76
- Family Law Act 1975 (Cth)
- Criminal Code (Qld)
- Supreme Court Rules 1970 (NSW)

Cases:
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry [1999] NSWCCA 107; (1999) 46 NSWLR 346
- R v Lawson (1997) 98 A Crim R 463
- Norbis v Norbis (1996) 161 CLR 513
- Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
- Leeth v The Commonwealth (1992) 174 CLR 455
- Medina v The Queen (1990) 108 FLR 288
- Krasnov & Shlakht (1995) 82 A Crim R 92
- Police v Cadd (1997) 94 A Crim R 466
- R v Tait (1979) 46 FLR 386