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Court of Criminal Appeal 31 March 2000

R v QUANSAH

[2000] NSWCCA 64

Drugs
CRIMINAL LAW SENTENCING IMPORTATION OF COCAINE

Citation: R v Quansah [2000] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 31 March 2000
Judge(s): Fitzgerald JA, Abadee J, Barr J

Background

The respondent arrived at Sydney Kingsford Smith Airport from Tahiti in June 1999. Customs examination of his luggage revealed a wooden statue containing just under three kilograms of a cocaine mixture, equivalent to approximately 643.7 grams of pure cocaine. He was arrested and later pleaded guilty in the District Court to importing not less than the trafficable quantity of cocaine, an offence carrying a maximum penalty of 25 years' imprisonment.

At the sentencing hearing, the respondent gave evidence that he had purchased the cocaine solely for his own use, that he believed the statue contained only one to one and a half kilograms, and that he had been introduced to the sellers through a chance encounter in a Chilean nightclub. He also claimed to have been employed by a business called Seguel Holdings, which had funded his multiple prior trips to South America. The sentencing judge rejected most of this evidence, including the claim about personal use and the claim that Seguel Holdings had sponsored his travel.

Williams DCJ in the District Court sentenced the respondent to four years and eight months' imprisonment, with a non-parole period of two years and six months, commencing from the date of arrest. The Crown appealed that sentence as manifestly inadequate.

  • Whether the sentence of four years and eight months, with a non-parole period of two and a half years, was manifestly inadequate for this offence.
  • What role the respondent played in the importation, and how that role should be reflected in the sentence.
  • How the sentencing principles in R v Olbrich and R v Wong & Leung applied to the facts.

Decision

Barr J (with whom Fitzgerald JA and Abadee J agreed) found that the sentencing judge's reasoning contained an internal inconsistency. Having already found that the respondent was the principal who organised the importation, the judge then expressed difficulty identifying where in the "hierarchy" the respondent sat. Barr J considered that difficulty misplaced: on the findings made, the respondent fell to be sentenced as someone who had organised, purchased and imported the cocaine, intending to supply the greater part to others while reserving some for personal use.

Barr J referred to R v Wong & Leung, in which the Court of Criminal Appeal indicated that a bare courier pleading guilty to importing a comparable quantity of cocaine would ordinarily receive a head sentence of between six and nine years. That range operates as a guide only. The respondent's role was found to be more substantial than a bare courier, which pointed to a sentence above the lower end of that range.

The Court acknowledged mitigating factors: the respondent was 31 years old, had a good work history, pleaded guilty, and the sentencing judge had found that cocaine addiction made it harder for him to resist involvement. However, the respondent's substantial untruthfulness before the sentencing judge meant no finding of remorse was warranted. Those factors, weighed together, did not bring the sentence below the manifestly inadequate threshold.

Because this was a Crown appeal, the Court applied the principle that the sentence on resentencing should be somewhat less than would have been appropriate at first instance, to avoid the respondent being doubly disadvantaged by the Crown's decision to appeal.

Orders Made

  • Appeal allowed and original sentence quashed.
  • The respondent sentenced to six years' imprisonment, commencing 10 June 1999 and expiring 9 June 2005.
  • Non-parole period fixed at four years from 10 June 1999, with eligibility for parole release on 10 June 2003.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge has already found an offender to be the organiser of an importation, further inquiry into the offender's place in a broader "hierarchy" is unnecessary if the evidence establishes no other participants.
  • Under the guideline in R v Wong & Leung, a bare courier pleading guilty to importing cocaine in this quantity would ordinarily receive a head sentence of six to nine years; a more substantial organising role warrants a sentence at or above that range.
  • A sentencing judge's rejection of an offender's evidence as largely untruthful appropriately removes any basis for a finding of remorse, limiting the mitigation available.
  • Where the Crown successfully appeals a sentence as manifestly inadequate, the Court of Criminal Appeal will impose a sentence somewhat below what would have been appropriate at first instance, to account for the double jeopardy element of a Crown appeal.
  • Addiction to the drug being imported can be recognised as a factor making it harder to resist offending, but it does not override the need for a sentence that adequately reflects the objective seriousness of the conduct.

Legislation and Cases Referenced

Cases:
- R v Olbrich [1999] HCA 54
- R v Wong & Leung [1999] NSWCCA 420

Legislation:
No specific legislation was identified by name in the provided judgment text, though the offence (importing not less than the trafficable quantity of cocaine) is a Commonwealth drug importation offence.