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Court of Criminal Appeal 7 July 2000

Regina v Ghale

[2000] NSWCCA 249

Drugs
CROWN APPEAL AGAINST SENTENCE

Citation: Regina v Ghale [2000] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 7 July 2000
Judge(s): Fitzgerald JA, Sperling J, Whealy J

Background

The respondent pleaded guilty to being knowingly concerned in the importation of a commercial quantity of heroin into Australia, contrary to section 233B of the Customs Act 1901 (Cth). The heroin had a gross weight of approximately 3.4 kilograms and a net weight of approximately 2.4 kilograms, with an estimated street value of between $4 million and $5 million.

The respondent travelled from Nepal to Bangkok, collected the heroin, and brought it into Australia using a falsified Nepalese diplomatic passport. He was arrested two days after arriving in Sydney, having already delivered part of the heroin to another participant in the operation.

At sentencing in the District Court, Murrell DCJ imposed a head sentence of seven years imprisonment commencing 28 November 1997, with a non-parole period of four years and three months. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the head sentence of seven years was manifestly inadequate for an offence involving the importation of a commercial quantity of heroin.
  • Whether sentencing guidelines established by the Court of Criminal Appeal in a subsequent case should have governed the sentence imposed.
  • Whether, even if some error existed, the sentence should be disturbed given the established principles governing Crown appeals against sentence.

Decision

Fitzgerald JA, with Sperling J and Whealy J agreeing, found no significant error in the approach taken by the sentencing judge. The sentencing judge had made a range of favourable findings about the respondent, including that he was a low-level courier who acquired full knowledge of his involvement late in the process, that he had an IQ in the bottom 10 per cent range, that he was of prior good character, and that he faced particular hardship in custody due to his lack of English language skills, cultural isolation, and inability to communicate with his family.

The Crown pointed to this Court's guidelines in Wong and Leung v Law (1999), which indicated a head sentence of eight to twelve years for a courier offender of this kind, and argued the respondent should have received ten years, consistent with the sentence imposed on a co-offender named Pang. Fitzgerald JA rejected this submission, noting that the Wong and Leung guidelines were handed down after the respondent was sentenced and that those guidelines are indicative only, not mandatory.

A further complication arose from the fact that the respondent's co-offender, Karki, who received ten years, had himself appealed against his sentence. Any reduction in Karki's sentence would disturb the existing relativity between the two sentences, and there was no Crown appeal against Karki's sentence. The Court observed that unless a significant increase in the respondent's sentence was warranted, it should not interfere.

Applying the principles governing Crown appeals against sentence, the Court concluded that even if a heavier sentence might have been open, the sentence actually imposed was not one that should be disturbed. The appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Sentencing guidelines from appellate courts are indicative only and do not override careful findings about an individual offender's personal circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown appeal against sentence requires more than a demonstration that a heavier sentence was available; the sentence must cross the threshold of manifest inadequacy before appellate intervention is warranted.
  • Where a co-offender's sentence remains subject to a separate appeal and no Crown appeal has been brought against that sentence, disturbing the existing relativity between sentences is a relevant consideration weighing against intervention.
  • Guidelines issued after a sentencing date do not govern the sentence that was imposed, and their retrospective application was expressly declined in this case.
  • A combination of factors including low intellectual functioning, cultural isolation, language barriers, prior good character, and a courier's subordinate role in an importation hierarchy can together support a sentence below the indicative guideline range.

Legislation and Cases Referenced

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

Cases:
- Wong and Leung v Law (1999) NSWCCA 420 (sentencing guidelines for heroin importation)
- Pang, NSWCCA 4 of 1999, unreported, 12 February 1999