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Court of Criminal Appeal 18 May 2000

Regina v K

[2000] NSWCCA 200

Drugs
CRIMINAL LAW SENTENCING PERMISSIBLE RANGE DISCOUNT FOR ASSISTANCE.

Citation: Regina v K [2000] NSWCCA 200
Court: New South Wales Court of Criminal Appeal
Date: 18 May 2000
Judge(s): Mason P, Heydon JA, Smart AJ

Background

The appellant, referred to as "K" to preserve anonymity, arrived at Sydney Airport in November 1998 carrying just under one kilogram of heroin (720.6 grams at pure weight) concealed in a briefcase. Authorities estimated the street value at between $1 million and $1.5 million. K had travelled from Indonesia and was to await further instructions at a motel, a typical courier arrangement.

Upon arrest, K agreed to assist police. Operating under supervision, he attended the motel and participated in controlled contact with his principal. A local contact later attended and delivered $20,000 to K at the motel before being arrested. The Crown accepted at sentencing that K should be treated as a courier rather than an organiser.

K had no prior convictions in Australia. His background was marked by significant personal hardship, including the death of his mother from AIDS during his adolescence. A psychologist assessed him as emotionally underdeveloped and lacking in self-insight. In the District Court, Judge Latham sentenced K to seven years' imprisonment with a four-year non-parole period, after applying a discount of approximately 40 percent for substantial assistance to authorities, from a starting point of eleven years.

  • Whether the starting point of eleven years adopted by the sentencing judge was within the permissible range for a mid-level trafficable quantity of heroin imported by a courier
  • Whether the sentence ultimately arrived at (seven years) was correct notwithstanding any error in the starting point
  • What the appropriate head sentence and non-parole period were, after applying the guideline judgment in Wong & Leung and accounting for the discount for assistance

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in adopting eleven years as the starting point. Applying the guideline established in Wong & Leung [1999] NSWCCA 420, the appropriate range of head sentences for a mid-level trafficable quantity of heroin, for couriers and those low in the organisational hierarchy, was six to nine years before discounts.

Smart AJ, with whom Mason P and Heydon JA agreed, determined that the correct starting point in K's case, before any discount for assistance, was eight years. The court took into account the quantity and value of the heroin and the fact that this was not K's first act as a courier (he had previously transported drugs from Thailand to Indonesia, though that prior conduct attracted limited weight given it occurred outside Australia).

The Crown's submission that the sentence ultimately imposed was within a permissible range, regardless of any error in the starting point, was rejected. Because the correct starting point was eight years and the 40 percent discount for assistance was appropriate, the resulting head sentence was five years, not seven. The court found that a lesser sentence than five years would insufficiently reflect the objective seriousness of the offence.

The court also noted that K would serve his sentence in protective custody, which is a materially harsher form of imprisonment, and that his plea of guilty and subjective circumstances had been taken into account.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence quashed
  • In lieu of the original sentence: imprisonment for five years commencing 29 November 1998, with a non-parole period of three years commencing on the same date

Key Takeaways

  • The Court of Criminal Appeal confirmed that the guideline in Wong & Leung sets a range of six to nine years (head sentence) for couriers importing mid-level trafficable quantities of heroin, and that a starting point of eleven years for such a case exceeded the permissible range.
  • An error in the starting point will not be cured simply because the final sentence (after discounts) might appear consistent with outcomes in other cases; the Crown's submission to that effect was rejected.
  • A discount of approximately 40 percent for substantial assistance to authorities was described as unexceptionable on the facts, consistent with how such assistance had been treated in comparable cases.
  • Prior criminal conduct occurring outside Australia is relevant at sentencing but attracts limited weight compared to domestic criminal history.
  • Where an offender serves a sentence in protective custody, that harsher custodial condition is a factor the sentencing court may take into account, though it did not outweigh the other sentencing considerations in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16G

Cases:
- R v Wong & Leung [1999] NSWCCA 420 (guideline judgment on heroin importation sentencing ranges)
- Ferrer-Esis (1991) 55 A Crim R 231
- R v Lawson (1997) 98 A Crim R 463
- R v Bernier (1998) 102 A Crim R 44