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Court of Criminal Appeal 24 February 1999

REGINA v YU

[1999] NSWCCA 6

Drugs
CRIMINAL LAW DRUGS IMPORTED HEROIN 1KG INTERSTATE COURIER SENTENCE

Citation: [1999] NSWCCA 6
Court: New South Wales Court of Criminal Appeal
Date: 24 February 1999
Judge(s): Hulme J, Hidden J, Greg James J

Background

The respondent was convicted of being an interstate courier of imported heroin. The quantity involved was just over one kilogram of pure heroin, which the respondent intended to transport from New South Wales to Melbourne for further distribution. He had a prior conviction from Hong Kong in 1981 for possessing a dangerous drug for the purpose of trafficking, for which he had served close to five years of a seven-year sentence.

The respondent pleaded guilty, but did so on the last or second last day of the Crown case, after a trial of more than two weeks. The sentencing judge, Barr J in the Supreme Court, did not treat the plea as evidence of contrition or as having saved significant hearing time. Barr J did, however, accept psychological evidence that the respondent was experiencing a major depressive episode and severe anxiety, and gave some weight to that in mitigation.

Barr J imposed a sentence of three years and eleven months with a non-parole period of two years and one month, after crediting approximately one year and five months spent in pre-sentence custody. This produced an effective head sentence of five years and four months with a non-parole period of three and a half years. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the sentencing judge erred by applying the one-third discount for the absence of remissions in New South Wales twice, rather than once, in calculating the head sentence.
  • Whether the sentencing judge gave sufficient weight to the respondent's prior overseas drug trafficking conviction.
  • Whether the resulting sentence fell outside the appropriate sentencing range for a heroin courier of this quantity so as to warrant appellate intervention in a Crown appeal.

Decision

The Court divided on the question of whether Barr J had made identifiable errors. Hulme J, in the minority, concluded that two errors were present. First, his Honour considered that Barr J had applied the one-third discount for the absence of remissions in New South Wales twice over, because the cases to which Barr J referred had already incorporated that adjustment. Second, Hulme J found that although Barr J mentioned the prior Hong Kong conviction, there was no indication that it had been given any meaningful weight when setting the actual penalty, which was an error given that prior conviction differentiated the respondent from first-time offenders discussed in the leading cases.

Greg James J, with whom Hidden J agreed, took a different view and held the majority. Greg James J was not persuaded that Barr J had misapplied the sentencing discount or misread the Crown's submissions. On the prior conviction, Greg James J noted the Court's earlier decision in Regina v Postiglione and found no error in the way Barr J had treated that matter.

The majority was also not satisfied that the sentence fell so far outside any applicable range as to reflect an error of principle of the kind required before a Crown appeal could succeed. The majority declined to reconsider the principles established in Bernier, which had been applied in subsequent Court of Criminal Appeal decisions without disapproval.

By majority, the appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal by majority, the Court of Criminal Appeal confirmed that a Crown appeal requires the sentence to fall outside the applicable range in a manner reflecting an error of principle, not merely a disagreement about where within the range the sentence should sit.
  • A prior overseas drug trafficking conviction is a factor that can, in principle, require a sentence towards or above the top of the range for comparable first-time offenders, though the majority found no reviewable error in how Barr J dealt with that matter here.
  • The one-third sentencing discount applied in New South Wales to account for the absence of remissions must not be applied more than once; where the cases used as sentencing benchmarks have already incorporated that adjustment, a further deduction would constitute error.
  • Psychological evidence of a depressive episode and severe anxiety was accepted as capable of mitigating sentence, even where some contributing causes of the condition were self-inflicted, provided other causes existed that were not attributable to the offender's own choices.
  • The sentencing range for heroin couriers transporting quantities of approximately one kilogram, as indicated by cases including El Karhani and Ferrer-Esis, remained the applicable framework, with the precise sentence within that range dependent on the individual's circumstances.

Legislation and Cases Referenced

Legislation:
- Customs Act, ss 233B and 235 (Cth)

Cases:
- Regina v El Karhani (1990) 97 ALR 373; (1990) 51 A Crim R 123
- Muanchukingkan (1990) 52 A Crim R 354
- Lam (1991) 53 A Crim R 118
- Ferrer-Esis (1991) 55 A Crim R 231
- Lama (unreported, CCA, 4 August 1995)
- Bernier (unreported, CCA, 19 May 1998)
- Jelks (unreported, CCA, 1 December 1995)
- Regina v Postiglione (1991) 24 NSWLR 584
- Regina v House (1936) 55 CLR 499
- Regina v Cranssen (1936) 55 CLR 509
- Regina v Lawson (unreported, CCA, 4 December 1997)
- Regina v Robertson (unreported, CCA, 6 November 1998)
- Regina v Wai Trung Chu (unreported, CCA, 16 October 1998)
- Regina v Barrientos [1999] NSWCCA 1