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Court of Criminal Appeal 6 October 2000

R v Olbrich

[2000] NSWCCA 389

Also reported as (2000) 117 A Crim R 326
Drugs
CRIMINAL LAW SENTENCING IMPORTATION OF PROHIBITED DRUG CORRECT BASIS OF SENTENCING FIXING OF NON PAROLE PERIOD

Citation: R v Olbrich [2000] NSWCCA 389
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Mason P, Heydon JA, Smart AJ

Background

The appellant, a German citizen residing in Singapore, pleaded guilty to importing heroin into Australia through Sydney's Mascot Airport. He arrived from Thailand carrying approximately 1,184 grams of pure heroin concealed in bottles and a plastic design board. At the time of his arrest he told customs officers he had been paid $15,000 to bring the drugs to a named recipient in Perth.

At sentencing, the appellant sought to mitigate his involvement by claiming he was a mere courier acting under personal and financial distress. The sentencing judge in the District Court rejected his evidence as riddled with inconsistencies and imposed a sentence of eight and a half years imprisonment with a non-parole period of six years.

The case had a lengthy appellate history. The Court of Criminal Appeal initially allowed an appeal on the basis that the Crown bore the burden of proving the appellant's degree of involvement. The High Court reversed that finding and remitted the matter back to the Court of Criminal Appeal, which then reconsidered the sentence in light of the High Court's reasoning.

  • Whether the head sentence of eight and a half years was manifestly excessive for the offence of importing approximately 1,184 grams of pure heroin
  • Whether the non-parole period of six years (approximately 70.6% of the head sentence) was excessive, having regard to the range established in subsequent case law
  • Whether harsher-than-anticipated prison conditions, caused in part by the extended appellate process, warranted a reduction in the non-parole period

Decision

The Court confirmed the head sentence of eight and a half years. Applying the High Court's reasoning, the appellant had failed on the balance of probabilities to establish that he was a courier rather than a more culpable participant. The sentencing judge had correctly proceeded on the objective facts, which showed a large quantity of heroin, a $15,000 payment, and no credible mitigating explanation from the appellant.

On the non-parole period, the Court found that six years was excessive. Subsequent authority (R v Bernier) had established that the normal non-parole period falls within the range of approximately 60% to 66.67% of the head sentence. At 70.6%, the non-parole period exceeded that range, particularly given that the head sentence was already towards the top of the permissible range.

The Court also took into account the appellant's unusually onerous conditions of imprisonment. Because of departmental classification policy, the appellant had been held in maximum security despite holding a medium security rating since April 1998. The extended appellate proceedings had delayed his progression to less restrictive conditions. These factors, together with the appellant's age, supported a reduction in the non-parole period.

The Court reduced the non-parole period from six years to five years, with the head sentence of eight and a half years remaining unchanged.

Orders Made

  • Appeal against sentence allowed in part
  • The sentence of imprisonment of eight and a half years commencing 16 August 1996 is confirmed
  • The non-parole period of six years is set aside; a non-parole period of five years is substituted, commencing 16 August 1996 and expiring 15 August 2001, at which time the appellant becomes eligible for release on parole

Key Takeaways

  • Where a defendant seeks mitigation on the basis of being a "courier" rather than a principal in a drug importation, the burden rests on the defendant to prove that fact on the balance of probabilities, following the High Court's decision in this case.
  • Characterising an offender as a "courier" or a "principal" must not displace the primary task of assessing what the offender actually did in relation to the specific offence charged.
  • The Court of Criminal Appeal confirmed that, under R v Bernier, the normal non-parole period for drug importation offences falls in the range of approximately 60% to 66.67% of the head sentence; a non-parole period exceeding that range requires justification.
  • Harsher custodial conditions than those reasonably foreseeable at the time of sentencing, including delays caused by appellate proceedings affecting prison classification, are relevant factors in fixing the non-parole period.
  • In dismissing the challenge to the head sentence, the Court reiterated that a sentence towards the top of the permissible range is appropriate where objective criminality is serious and mitigating circumstances are not established.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B
- Crimes Act 1914 (Cth)

Cases
- R v Olbrich (1998) 45 NSWLR 538 (earlier Court of Criminal Appeal decision)
- R v Olbrich (1999) 73 ALJR 1550 (High Court decision)
- R v Wong (1999) 48 NSWLR 340
- R v Bernier (1998) 102 A Crim R 44