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Court of Criminal Appeal 10 December 1999

Regina v Ho

[1999] NSWCCA 440

Drugs
SENTENCE APPEAL PARITY IN SENTENCING OFFENDER CRIMINALITY

Citation: Regina v Ho [1999] NSWCCA 440
Court: Court of Criminal Appeal, New South Wales
Date: 10 December 1999
Judge(s): Beazley JA, Newman J, Greg James J

Background

The appellant was convicted on a guilty plea of attempting to possess a trafficable amount of heroin under s 233B(1) of the Customs Act 1901 (Cth). The quantity involved was 1.518 kilograms with a purity of 71 per cent, yielding approximately 1.078 kilograms of pure heroin. The offence arose from a January 1995 importation that had been intercepted by authorities, who substituted the heroin before it was delivered.

The appellant, together with his co-offender Mr Yu, travelled from Melbourne to Sydney specifically to collect the consignment. The operation involved receiving fifteen bags of what was in fact the substituted substance, thirteen of which were returned upon suspicion. The appellant was physically involved in repackaging the remaining two bags in noodle boxes for transport back to Melbourne.

His co-offender, Mr Yu, had pleaded guilty earlier and was sentenced by a different judge. The appellant's sentence was effectively the same as Mr Yu's, despite the appellant arguing his involvement and criminality were meaningfully lesser. The appellant sought leave to appeal that sentence on two grounds.

  • Whether the sentencing judge erred by failing to adequately apply parity of sentencing principles, given that the appellant's criminality and personal circumstances differed from those of his co-offender Mr Yu
  • Whether the non-parole period was disproportionately high, and whether a 50/50 ratio between the non-parole period and the head sentence should have been adopted rather than the approximately two-thirds ratio imposed

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach to parity. Although the appellant pointed to several indications of a lesser role (he was not seen by surveillance officers until the evening, he was not the primary contact for the organiser, and Mr Yu handled the boxes and did the talking at the airport), the sentencing court had properly considered the overall context of the criminal enterprise and the charge actually laid. The appellant's role was found to be important and significant.

On the factual challenge regarding the fifteen bags, the Court held that the Crown's statement of facts, which was not challenged on this point, provided a sufficient evidentiary basis for the sentencing judge's finding. Mr Kuan's evidence at the sentencing hearing was consistent with the existence of fifteen bags, and there was no basis to disturb that finding.

Regarding the comparison between the two co-offenders' subjective circumstances, the Court acknowledged that the appellant had no prior criminal record while Mr Yu had a prior similar conviction in Hong Kong. However, the Court endorsed the well-established principle that prior good character carries limited weight in serious drug importation offences, because those at the lower rungs of such criminal organisations are frequently selected precisely because of their clean records.

The Court also declined to interfere with the non-parole period. It found no reason why an approximately two-thirds ratio between the non-parole period and the head sentence was inappropriate, and rejected the submission that a 50/50 ratio should have been adopted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that parity in sentencing does not require identical subjective circumstances between co-offenders; it requires that any disparity in sentences be explicable by genuine differences in criminality or personal circumstances, and no such unjustified disparity was found here.
  • Where a statement of facts is tendered at sentence and portions of it are not challenged by the offender, those unchallenged portions form a proper basis for the sentencing court's factual findings.
  • In dismissing the appeal, the Court reaffirmed that prior good character is often of limited mitigating value in serious drug importation cases, because criminal organisations routinely use people with clean records as couriers and lower-level participants.
  • A sentencing court may consider the full context of a criminal enterprise when assessing an offender's criminality, provided it sentences only for the charge to which the offender pleaded guilty.
  • No error was established in the imposition of a non-parole period representing approximately two-thirds of the head sentence for an offence of this seriousness.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)

Cases:
- R v Thiagarajah (1989) 41 A Crim R 45
- R v Budiman (1998) 102 A Crim R 411
- Regina v Lowe (1984) 154 CLR 606